Exhibit 4.1
EXECUTION COPY
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ARMKEL, LLC
ARMKEL FINANCE, INC.
9 1/2% Senior Subordinated Notes due 2009
_______________
INDENTURE
Dated as of August 28, 2001.
_______________
THE BANK OF NEW YORK,
as Trustee
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TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions ............................................ 1
SECTION 1.02. Other Definitions ...................................... 25
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ...... 26
SECTION 1.04. Rules of Construction .................................. 27
ARTICLE 2
The Securities
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SECTION 2.01. Amount of Securities; Issuable in Series ............... 28
SECTION 2.02. Form and Dating ........................................ 29
SECTION 2.03. Execution and Authentication ........................... 29
SECTION 2.04. Registrar and Paying Agent ............................. 30
SECTION 2.05. Paying Agent to Hold Money in Trust .................... 31
SECTION 2.06. Holder Lists ........................................... 31
SECTION 2.07. Transfer and Exchange .................................. 31
SECTION 2.08. Replacement Securities ................................. 32
SECTION 2.09. Outstanding Securities ................................. 33
SECTION 2.10. Temporary Securities ................................... 33
SECTION 2.11. Cancelation ............................................ 33
SECTION 2.12. Defaulted Interest ..................................... 34
SECTION 2.13. CUSIP and ISIN Numbers ................................. 34
ARTICLE 3
Redemption
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SECTION 3.01. Notices to Trustee ..................................... 34
SECTION 3.02. Selection of Securities To Be Redeemed ................. 35
SECTION 3.03. Notice of Redemption ................................... 35
SECTION 3.04. Effect of Notice of Redemption ......................... 36
SECTION 3.05. Deposit of Redemption Price ............................ 36
SECTION 3.06. Securities Redeemed in Part ............................ 36
ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities .......................................... 37
SECTION 4.02. SEC Reports .................................................... 37
SECTION 4.03. Limitation on Indebtedness ..................................... 37
SECTION 4.04. Limitation on Restricted Payments .............................. 41
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries ................................................... 46
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock ............. 48
SECTION 4.07. Limitation on Transactions with Affiliates ..................... 52
SECTION 4.08. Change of Control .............................................. 53
SECTION 4.09. Compliance Certificate ......................................... 55
SECTION 4.10. Further Instruments and Acts ................................... 55
SECTION 4.11. Future Subsidiary Guarantors ................................... 55
SECTION 4.12. Limitation on the Sale or Issuance of Preferred Stock of
Restricted Subsidiaries ........................................ 56
SECTION 4.13. Limitation on Ability of Company to Release Funds From Escrow... 56
ARTICLE 5
Successor Company
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SECTION 5.01. When Company and Sub Co-Issuer May Merge or Transfer
Assets ......................................................... 57
ARTICLE 6
Defaults and Remedies
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SECTION 6.01. Events of Default .............................................. 58
SECTION 6.02. Acceleration ................................................... 60
SECTION 6.03. Other Remedies ................................................. 61
SECTION 6.04. Waiver of Past Defaults ........................................ 61
SECTION 6.05. Control by Majority ............................................ 61
SECTION 6.06. Limitation on Suits ............................................ 62
SECTION 6.07. Rights of Holders to Receive Payment ........................... 62
SECTION 6.08. Collection Suit by Trustee ..................................... 62
SECTION 6.09. Trustee May File Proofs of Claim ............................... 62
SECTION 6.10. Priorities ..................................................... 63
SECTION 6.11. Undertaking for Costs .......................................... 63
SECTION 6.12. Waiver of Stay or Extension Laws ............................... 64
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee ........................................ 64
SECTION 7.02. Rights of Trustee ........................................ 65
SECTION 7.03. Individual Rights of Trustee ............................. 66
SECTION 7.04. Trustee's Disclaimer ..................................... 66
SECTION 7.05. Notice of Defaults ....................................... 66
SECTION 7.06. Reports by Trustee to Holders ............................ 67
SECTION 7.07. Compensation and Indemnity ............................... 67
SECTION 7.08. Replacement of Trustee ................................... 68
SECTION 7.09. Successor Trustee by Merger .............................. 69
SECTION 7.10. Eligibility; Disqualification ............................ 69
SECTION 7.11. Preferential Collection of Claims Against Company ........ 70
ARTICLE 8
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities; Defeasance ......... 70
SECTION 8.02. Conditions to Defeasance ................................. 71
SECTION 8.03. Application of Trust Money ............................... 72
SECTION 8.04. Repayment to Company ..................................... 73
SECTION 8.05. Indemnity for Government Obligations ..................... 73
SECTION 8.06. Reinstatement ............................................ 73
ARTICLE 9
Amendments
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SECTION 9.01. Without Consent of Holders ............................... 74
SECTION 9.02. With Consent of Holders .................................. 75
SECTION 9.03. Compliance with Trust Indenture Act ...................... 76
SECTION 9.04. Revocation and Effect of Consents and Waivers ............ 76
SECTION 9.05. Notation on or Exchange of Securities .................... 77
SECTION 9.06. Trustee to Sign Amendments ............................... 77
SECTION 9.07. Payment for Consent ...................................... 77
ARTICLE 10
Subordination
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SECTION 10.01. Agreement To Subordinate ......................................... 77
SECTION 10.02. Liquidation, Dissolution, Bankruptcy ............................. 78
SECTION 10.03. Default on Senior Indebtedness ................................... 78
SECTION 10.04. Acceleration of Payment of Securities ............................ 79
SECTION 10.05. When Distribution Must Be Paid Over .............................. 79
SECTION 10.06. Subrogation ...................................................... 80
SECTION 10.07. Relative Rights .................................................. 80
SECTION 10.08. Subordination May Not Be Impaired by Company ..................... 80
SECTION 10.09. Rights of Trustee and Paying Agent ............................... 80
SECTION 10.10. Distribution or Notice to Representative ......................... 81
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit Right To
Accelerate ...................................................... 81
SECTION 10.12. Trust Monies Not Subordinated .................................... 81
SECTION 10.13. Trustee Entitled To Rely ......................................... 81
SECTION 10.14. Trustee To Effectuate Subordination .............................. 82
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness ......... 82
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions ...................................................... 82
ARTICLE 11
Subsidiary Guarantees
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SECTION 11.01. Subsidiary Guarantees ............................................ 82
SECTION 11.02. Limitation on Liability .......................................... 85
SECTION 11.03. Successors and Assigns ........................................... 86
SECTION 11.04. No Waiver ........................................................ 86
SECTION 11.05. Modification ..................................................... 86
SECTION 11.06. Execution of Supplemental Indenture for Future Subsidiary
Guarantors ...................................................... 86
SECTION 11.07. Non-Impairment ................................................... 86
ARTICLE 12
Subordination of the Subsidiary Guarantees
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SECTION 12.01. Agreement To Subordinate ......................................... 87
SECTION 12.02. Liquidation, Dissolution, Bankruptcy ............................. 87
SECTION 12.03. Default on Designated Senior Indebtedness of a Subsidiary
Guarantor ............................................................. 87
SECTION 12.04. Demand for Payment ..................................................... 89
SECTION 12.05. When Distribution Must Be Paid Over .................................... 89
SECTION 12.06. Subrogation ............................................................ 89
SECTION 12.07. Relative Rights ........................................................ 89
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary Guarantor ............ 90
SECTION 12.09. Rights of Trustee and Paying Agent ..................................... 90
SECTION 12.10. Distribution or Notice to Representative ............................... 90
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit Right To
Accelerate ............................................................ 90
SECTION 12.12. Trustee Entitled To Rely ............................................... 90
SECTION 12.13. Trustee To Effectuate Subordination .................................... 91
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of a
Subsidiary Guarantor .................................................. 91
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a Subsidiary
Guarantor on Subordination Provisions ................................. 91
SECTION 12.16. Defeasance ............................................................. 92
ARTICLE 13
Miscellaneous
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SECTION 13.01. Trust Indenture Act Controls ........................................... 92
SECTION 13.02. Notices ................................................................ 92
SECTION 13.03. Communication by Holders with Other Holders ............................ 93
SECTION 13.04. Certificate and Opinion as to Conditions Precedent ..................... 94
SECTION 13.05. Statements Required in Certificate or Opinion .......................... 94
SECTION 13.06. When Securities Disregarded ............................................ 94
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar ........................... 95
SECTION 13.08. Legal Holidays ......................................................... 95
SECTION 13.09. Governing Law .......................................................... 95
SECTION 13.10. No Recourse Against Others ............................................. 95
SECTION 13.11. Successors ............................................................. 95
SECTION 13.12. Multiple Originals ..................................................... 95
SECTION 13.13. Table of Contents; Headings ............................................ 95
Appendix A - Provisions Relating to Original Securities, Additional
Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of August 28, 2001, among Armkel, LLC, a
Delaware limited liability company (the "Company"), Armkel
Finance, Inc., a Delaware corporation ("Sub Co-Issuer"), and The
Bank of New York, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) the Company's 9
1/2% Senior Subordinated Notes due 2009 issued on the date hereof (the
"Original Securities"), (b) any Additional Securities (as defined herein)
that may be issued on any Issue Date (all such Securities in clauses (a)
and (b) being referred to collectively as the "Initial Securities"), and
(c) if and when issued as provided in the Registration Agreement (as
defined in Appendix A hereto (the "Appendix")), the Company's 9 1/2% Senior
Subordinated Notes due 2009 issued in a Registered Exchange Offer in
exchange for any Initial Securities (the "Exchange Securities", and
together with the Initial Securities, the "Securities"). Except as
otherwise provided herein, the Securities will be limited to $450,000,000
in aggregate principal amount outstanding, of which $225,000,000 in
aggregate principal amount will be initially issued on the date hereof.
Subject to the conditions and in compliance with the covenants set forth
herein, the Company and Sub Co-Issuer may issue up to $225,000,000
aggregate principal amount of Additional Securities.
ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Acquisition" means the acquisition by the Company of the consumer
products businesses of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc. pursuant to the Acquisition
Agreement and the substantially concurrent sale pursuant to the Product Line
Purchase Agreement.
"Acquisition Agreement" means the Asset Purchase Agreement between the
Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Inc., dated as of May 7, 2001, as the same may be
amended, modified or supplemented from time to time.
"Additional Assets" means (a) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business or (b) the Capital Stock of a Restricted
Subsidiary or of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary.
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"Additional Securities" means up to $225 million aggregate principal
amount of 9 1/2% Senior Subordinated Notes due 2009 issued under the terms of
this Indenture subsequent to the Closing Date.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.07 only, "Affiliate" shall also mean any beneficial owner
of shares representing 5% or more of the total voting power of the Voting Stock
(on a fully diluted basis) of the Company or of rights or warrants to purchase
such Voting Stock (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary, other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary or by the Company
to a Restricted Subsidiary, (ii) for purposes of the provisions described under
Section 4.06 only, a disposition subject to Section 4.04, (iii) any transaction
or series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $5 million, (iv) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Section 5.01, (v) the sale
or discount, in each case without recourse, of accounts receivable arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof, (vi) the factoring of accounts receivable arising in the
ordinary course of business pursuant to arrangements customary in the industry,
(vii) the licensing of intellectual property, (viii) disposals or replacements
of obsolete equipment in the ordinary course of business, (ix) sales of accounts
receivable and related assets of the type specified in the definition of
"Qualified Receivables Transaction" to a Receivables Entity, (x) transfers of
accounts receivable and related assets of the type specified in the definition
of "Qualified Receivables Transaction" (or a fractional undivided interest
therein) by a Receivables Entity in a Qualified Receivables Transaction, (xi)
leases or subleases to third persons not
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interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries, (xii) the sale or other disposition of the
Company's manufacturing facility located in Cranbury, New Jersey and all
properties and assets associated with such facility, and (xiii) a sale or other
disposition of assets pursuant to the Product Line Purchase Agreement.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Subsidiary
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof. It is understood and agreed
that Refinancing Indebtedness in respect of the Credit Agreement may be Incurred
from time to time after termination of the Credit Agreement.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the amount of such obligation required to be reflected
as a liability on a balance sheet prepared in accordance with GAAP; and the
Stated Maturity thereof shall be the date of the last payment of rent or any
other similar amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"▇▇▇▇▇▇-▇▇▇▇▇▇▇ Agreements" means the Cranbury Facilities Sharing
Agreement and Lease between the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc., to be dated on
or about the Effective Date, the Transition Services Agreement between the
Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be dated on or about the Effective Date, the
Insurance Claims
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Agreement between the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be dated on or about the
Effective Date, the Indemnification Agreement between the Company and
▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be dated on or about the Effective Date; the Acquisition
Agreement, the Consumer Products Transitional License Agreement between the
Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be dated on or about the Effective Date, and the
Company Patent License Agreement between the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be
dated on or about the Effective Date, in each case, as the same may be amended,
modified or supplemented from time to time.
"C&D" means Church & ▇▇▇▇▇▇ Co., Inc.
"C&D Agreements" means the Product Line Purchase Agreement between the
Company and C&D dated as of July 26, 2001 and effective as of May 7, 2001, the
Management Services Agreement between the Company and C&D, to be dated on or
about the Effective Date, the Manufacturing and Distribution Agreement between
the Company and C&D, to be dated on or about the Effective Date, the Arrid
Manufacturing Agreement between the Company and C&D, to be dated on or about the
Effective Date, and the Advisory Services Agreement relating to the Acquisition
between the Company and C&D, to be dated on or about the Effective Date, in each
case, as the same may be amended, modified or supplemented from time to time.
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" (as such term is used in Section 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company, provided that so long as the
Company is a Subsidiary of a Parent, no Person shall be deemed to be or
become a "beneficial owner" of more than 50% of the total voting power of
the Voting Stock of the Company unless such Person shall be or become a
"beneficial owner" of more than 50% of the total voting power of the Voting
Stock of such Parent; or
(b) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Governing Board of the Company
(together with any new individuals whose election by such Governing Board
of the Company or whose nomination for election by the members or
shareholders of the Company was approved by any Permitted Holder or a vote
of a majority of the individuals of the Company then still in office who
were either on the Governing Board at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Governing Board of the Company;
or
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(c) the adoption of a plan relating to the liquidation or dissolution
of the Company; or
(d) the Company merges or consolidates with or into, or sells or
transfers (in one or a series of related transactions) all or substantially
all of the assets of the Company and its Restricted Subsidiaries to another
Person (other than one or more Permitted Holders) and any "person" (as
defined in clause (a) above), other than one or more Permitted Holders, is
or becomes the "beneficial owner" (as so defined), directly or indirectly,
of more than 50% of the total voting power of the Voting Stock of the
surviving Person in such merger or consolidation, or the transferee Person
in such sale or transfer of assets, as the case may be, provided that so
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long as such surviving or transferee Person is a Subsidiary of a Parent, no
Person shall be deemed to be or become a "beneficial owner" of more than
50% of the total voting power of the Voting Stock of such surviving or
transferee Person unless such Person shall be or become a "beneficial
owner" of more than 50% of the total voting power of the Voting Stock of
such Parent.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (a) the aggregate amount of Consolidated EBITDA of the Company and
its Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which
consolidated financial statements of the Company are available to (b)
Consolidated Interest Expense for such four fiscal quarters (in each case,
determined, for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to the Effective Date, on a pro forma basis to give effect
to the Acquisition as if it had occurred at the beginning of such four-quarter
period), and subject and giving effect to the following adjustments, (i) if
since the beginning of such period the Company or any Restricted Subsidiary has
Incurred any Indebtedness that remains outstanding on such date of determination
or if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Indebtedness as if such Indebtedness had
been Incurred on the first day of such period (except that in making such
computation, the amount of Indebtedness under any revolving credit facility
outstanding on the date of such calculation shall be computed based on (A) the
average
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daily balance of such Indebtedness during such four fiscal quarters or such
shorter period for which such facility wasoutstanding or (B) if such facility
was created after the end of such four fiscal quarters, the average daily
balance of such Indebtedness during the period from the date of creation of such
facility to the date of such calculation), (ii) if since the beginning of such
period the Company or any Restricted Subsidiary has repaid, repurchased,
redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness
(each, a "Discharge") or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each
case other than Indebtedness Incurred under any revolving credit facility unless
such Indebtedness has been permanently repaid), Consolidated EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Discharge of such Indebtedness, including
with the proceeds of such new Indebtedness, as if such Discharge had occurred on
the first day of such period, (iii) if since the beginning of such period the
Company or any Restricted Subsidiary shall have disposed of any company, any
business or any group of assets constituting an operating unit of a business
(any such disposition, a "Sale"), the Consolidated EBITDA for such period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the assets that are the subject of such Sale for such period or
increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such period and Consolidated Interest Expense for such
period shall be reduced by an amount equal to (A) the Consolidated Interest
Expense attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired,
retired or discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Sale for such period (including but not
limited to through the assumption of such Indebtedness by another Person) plus
(B) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such Sale, (iv) if
since the beginning of such period the Company or any Restricted Subsidiary (by
merger, consolidation or otherwise) shall have made an Investment in any Person
that thereby becomes a Restricted Subsidiary, or otherwise acquired any company,
any business or any group of assets constituting an operating unit of a
business, including any such Investment or acquisition occurring in connection
with a transaction causing a calculation to be made hereunder (any such
Investment or acquisition, a "Purchase"), Consolidated EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any related Indebtedness) as if such
Purchase occurred on the first day of such period and (v) if since the beginning
of such period any Person became a Restricted Subsidiary or was merged or
consolidated with or into the Company or any Restricted Subsidiary, and since
the beginning of such period such Person shall have Discharged any Indebtedness
or made any Sale or Purchase that would have required an adjustment pursuant to
clause (ii), (iii) or (iv) above if made by the Company or a Restricted
Subsidiary during such period, Consolidated EBITDA and Consolidated Interest
Expense
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for such period shall be calculated after giving pro forma effect thereto as if
such Discharge, Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given
to any Sale, Purchase or other transaction, or the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or
otherwise acquired, retired or discharged in connection therewith, the pro forma
calculations in respect thereof (including without limitation in respect of
anticipated cost savings or synergies relating to any such Sale, Purchase or
other transaction) shall be as determined in good faith by a responsible
financial or accounting Officer of the Company. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness to the
extent of the remaining term of such Interest Rate Agreement). If any
Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a
rate of interest based on a prime or similar rate, a eurocurrency interbank
offered rate or other fixed or floating rate, and such Indebtedness is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated by applying such optional rate as the Company or such Restricted
Subsidiary may designate. If any Indebtedness that is being given pro forma
effect was Incurred under a revolving credit facility, the interest expense on
such Indebtedness shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate determined in good
faith by a responsible financial or accounting officer of the Company to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated
Net Income for such period, plus the following to the extent deducted in
calculating such Consolidated Net Income: (i) provision for all taxes (whether
or not paid, estimated or accrued) based on income, profits or capital, (ii)
Consolidated Interest Expense, (iii) depreciation, amortization (including but
not limited to amortization of goodwill and intangibles and amortization and
write-off of financing costs) and any non-cash impairment charges related to
goodwill, other intangibles or long-lived assets, (iv) any expenses or charges
related to any Equity Offering, Investment or Indebtedness permitted by this
Indenture (whether or not consummated or incurred), (v) the amount of any
minority interest expense, (vi) the amount, up to $1 million per year, paid to
▇▇▇▇▇ in respect of management, monitoring, consulting and advisory fees and
(vii) any non-cash charges resulting from any write-up of assets of the Company
or any of its Subsidiaries in accordance with Statement of Financial Accounting
Standards No. 141, "Business Combinations."
8
"Consolidated Interest Expense" means, for any period, (i) the total
interest expense of the Company and its Restricted Subsidiaries to the extent
deducted in calculating Consolidated Net Income, net of any interest income of
the Company and its Restricted Subsidiaries, including without limitation any
such interest expense consisting of (a) interest expense attributable to
Capitalized Lease Obligations, (b) amortization of debt discount, (c) the
interest portion of any deferred payment obligation, (d) commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and (e) to the extent not otherwise included in such
interest expense, Receivables Fees, plus (ii) Preferred Stock dividends paid in
cash in respect of Disqualified Stock of the Company held by Persons other than
the Company or a Restricted Subsidiary and minus (iii) to the extent otherwise
included in such interest expense, amortization or write-off of financing costs,
in each case under clauses (i) through (iii) as determined on a Consolidated
basis in accordance with GAAP; provided, that gross interest expense shall be
--------
determined after giving effect to any net payments made or received by the
Company and its Restricted Subsidiaries with respect to Interest Rate
Agreements.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its Restricted Subsidiaries, determined on a consolidated
basis in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends; provided, that there shall not be included in such Consolidated
--------
Net Income:
(a) any net income of any Person if such Person is not a Restricted
Subsidiary or is accounted for by the equity method of accounting, except
that the Company's equity in the net income (but not loss) of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (c) below),
(b) any net income (loss) of any Person acquired by the Company or a
Restricted Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition,
(c) any net income (loss) of any Restricted Subsidiary that is not a
Subsidiary Guarantor if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the
making of similar distributions by such Restricted Subsidiary, directly or
indirectly, to the Company by operation of the terms of such Restricted
Subsidiary's charter or any agreement, instrument, judgment, decree, order,
statute or governmental rule or regulation applicable to such Restricted
Subsidiary or its stockholders (other than (i) restrictions that have been
waived or otherwise released and (ii) restrictions
9
pursuant to the Securities or this Indenture), except that the
Company's equity in the net income (but not loss) of any such
Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of any dividend or
distribution that was or that could have been made by such Restricted
Subsidiary during such period to the Company or another Restricted
Subsidiary and the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income up to the amount of loans, advances or
other contributions, if any, made to such Restricted Subsidiary by the
Company or any other Restricted Subsidiary during such period.
(d) any gain or loss realized upon the sale or other disposition
of any asset of the Company or any Restricted Subsidiary (including
pursuant to any sale/leaseback transaction) that is not sold or
otherwise disposed of in the ordinary course of business (as
determined in good faith by the Governing Board) and any gain or loss
realized upon the sale or other disposition of any Capital stock of
any Person,
(e) any extraordinary, unusual or nonrecurring gain, loss or
charge,
(f) the cumulative effect of a change in accounting principles,
(g) all deferred financing costs written off and premiums paid in
connection with any early extinguishment of Indebtedness,
(h) any unrealized gains or losses in respect of Currency
Agreements,
(i) any unrealized foreign currency transaction gains or losses
in respect of Indebtedness of any Person denominated in a currency
other than the functional currency of such Person, and
(j) any non-cash compensation charge arising from any grant of
stock, stock options or other equity- based awards.
In the case of any unusual or nonrecurring gain, loss or charge not
included in Consolidated Net Income pursuant to clause (e) above in any
determination thereof, the Company will deliver an Officers' Certificate to the
Trustee promptly after the date on which Consolidated Net Income is so
determined, setting forth the nature and amount of such unusual or nonrecurring
gain, loss or charge.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its Restricted Subsidiaries, determined on a
Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending
10
at least 45 days prior to the taking of any action for the purpose of which the
determination is being made, as (a) the par or stated value of all outstanding
Capital Stock of the Company plus (b) paid-in capital or capital surplus
relating to such Capital Stock plus (c) any retained earnings or earned surplus
less (i) any accumulated deficit and (ii) any amounts attributable to
Disqualified Stock.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance with
GAAP consistently applied; provided, however, that "Consolidation" shall not
-------- -------
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Company or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Credit Agreement" means the credit agreement to be dated on
or about the Effective Date, as amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders
or otherwise), refinanced, restructured or otherwise modified from time to time,
among the Company, the lenders named therein, The Chase Manhattan Bank, as
administrative agent (except to the extent that any such amendment, restatement,
supplement, waiver, replacement, refinancing, restructuring or other
modification thereto would be prohibited by the terms of this Indenture, unless
otherwise agreed to by the Holders of at least a majority in aggregate principal
amount of Securities at the time outstanding).
"Currency Agreement" means with respect to any Person any
foreign exchange contract, currency swap agreements or other similar agreement
or arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness" of the Company means (a) the
Bank Indebtedness and (b) any other Senior Indebtedness of the Company that, at
the date of determination, has an aggregate principal amount outstanding of, or
under which, at the date of determination, the holders thereof are committed to
lend up to, at least $25 million and is specifically designated by the Company
(with the consent of the Representative of the Bank Indebtedness if there is any
Bank Indebtedness outstanding at this time) in the instrument evidencing or
governing such Senior Indebtedness as "Designated Senior Indebtedness" for
purposes of this Indenture. "Designated Senior Indebtedness" of Sub Co-Issuer or
a Subsidiary Guarantor has a correlative meaning.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures
11
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(b) is convertible or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary; provided, however, that any such conversion
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or exchange shall be deemed an Incurrence of Indebtedness or Disqualified Stock,
as applicable) or (c) is redeemable at the option of the holder thereof, in
whole or in part, in the case of each of clauses (a), (b) and (c), on or prior
to the first anniversary of the Stated Maturity of the Securities; provided,
--------
however, that any Capital Stock that would not constitute Disqualified Stock but
-------
for provisions thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of an "asset
sale" or "change of control" occurring prior to the first anniversary of the
Stated Maturity of the Securities shall not constitute Disqualified Stock.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Foreign Subsidiary.
"Effective Date" means the date of closing of the Acquisition.
"Effective Time" means the time of closing of the Acquisition.
"Equity Offering" means (i) a sale of Capital Stock (other than
Disqualified Stock) that is a sale of Capital Stock of the Company, or (ii) a
capital contribution to the Company or any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934.
"Escrow Agreement" means the Escrow Agreement among the Company, Sub
Co-Issuer and The Bank of New York, as Escrow Agent.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. The Fair Market
Value of property or assets other than cash which involves (a) an aggregate
amount in excess of $1 million, shall be set forth in a resolution approved by
at least a majority of the Governing Board and (b) an aggregate amount in excess
of $25 million, shall have been determined in writing by a nationally recognized
appraisal, accounting or investment banking firm.
"Financing Disposition" means any sale, transfer, conveyance or other
disposition of property or assets by the Company or any Subsidiary thereof to
any Receivables Entity, or by any Receivables Subsidiary, in each case in
connection with the Incurrence by a Receivables Entity of Indebtedness, or
obligations to make payments to
12
the obligor on Indebtedness, which may be secured by a Lien in respect of such
property or assets.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that is not organized under the laws of the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including those set forth
in (a) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing the
inclusion of financial statements in periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from
the accounting staff of the SEC. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
"Governing Board" of the Company or any other Person means (i) the
managing member or members or any controlling committee or members of the
Company or such Person, for so long as the Company or such Person is a limited
liability company, (ii) the board of directors of the Company or such Person, if
the Company or such Person is a corporation or (iii) any similar governing body.
"Governing Board Approval" means (i) the written approval provided by
a majority of the members of a Governing Board, so long as the Governing Board
is comprised of an equal number of representatives designated by C&D and ▇▇▇▇▇
or (ii) in the event there is not an equal number of such representatives, the
written approval by a majority of directors who do not have a personal stake in
the transaction being voted upon.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
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"Guarantee" shall not include endorsements for collection or deposit in the
ordinary
13
course of business. The term "Guarantee" used as a verb has a corresponding
meaning. The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is registered on
the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
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Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of indebtedness
of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables and other
accrued current liabilities arising in the ordinary course of business),
which purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends);
14
(g) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of Indebtedness of such Person shall be
-------- -------
the lesser of (A) the Fair Market Value of such asset at such date of
determination and (B) the amount of such Indebtedness of such other
Persons;
(h) Hedging Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a) through (h)
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee; provided, however, that Indebtedness shall not include any
-------- -------
obligation of the Company or any Subsidiary in respect of the Acquisition
Agreement or any liability for Federal, state, provincial, foreign, local
or other taxes owed or owing by such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04:
(1) "Investment" shall include the Company's pro rata portion
(proportionate to the Company's direct or indirect equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of
the Company at the time that such Subsidiary is designated an Unrestricted
15
Subsidiary; provided, however, that upon a redesignation of such
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Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (A) the Company's
"Investment" in such Subsidiary at the time of such redesignation less
(B) the Company's pro rata portion (proportionate to the Company's
direct or indirect equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such
redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of
such transfer.
"Issue Date", with respect to any Initial Securities, means the
date on which such Initial Securities are originally issued.
"▇▇▇▇▇" means ▇▇▇▇▇ & Company, LLP.
"▇▇▇▇▇ Agreements" means the ▇▇▇▇▇ Financial Advisory Services
Agreement between the Company and ▇▇▇▇▇, to be dated on or about the Effective
Date, and the Investment Banking Services Agreement relating to the Acquisition
between the Company and ▇▇▇▇▇, to be dated on or about the Effective Date, in
each case, as the same may be amended, modified or supplemented from time to
time.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Merger Agreement" means the Agreement and Plan of Merger, dated
as of May 7, 2001, among ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc., CPI Development Corporation, MCC
Acquisition Holdings Corporation, MCC Merger Sub Corporation and MCC Acquisition
Sub Corporation, as the same may be amended, modified or supplemented from time
to time.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other non-cash form)
therefrom, in each case net of (a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and the Tax Distributions with
respect to such Asset Disposition, (b) all payments made on any Indebtedness
which is secured by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon
16
or other security agreement of any kind with respect to such assets, or which
must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law be repaid out of the proceeds from such Asset
Disposition, (c) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition and (d) appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company or Sub Co-Issuer. "Officer" of a
Subsidiary Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, Sub Co-Issuer, a Subsidiary Guarantor or the Trustee.
"Parent" means any Person of which the Company at any time is or
becomes a Subsidiary after the Closing Date.
"Permitted Business" means any business engaged in by the Company or
any Restricted Subsidiary on the Effective Date and any Related Business.
"Permitted Holders" means ▇▇▇▇▇, C&D, their respective affiliates, and
any Person acting in the capacity of an underwriter in connection with a public
or private offering of the Company's Capital Stock or securities convertible
into or exchangeable or exercisable for such Capital Stock.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (a) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
-------- -------
Permitted Business, (b) another Person if as a result of such Investment such
other Person is merged or
17
consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Restricted Subsidiary; provided, however, that such
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Person's primary business is a Permitted Business, (c) Temporary Cash
Investments, (d) receivables owing to the Company or any Restricted Subsidiary
if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however, that
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such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances, (e)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business, (f) loans or
advances to employees made in the ordinary course of business and not exceeding
$5 million in the aggregate outstanding at any time, (g) stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments or upon bankruptcy or insolvency of creditors or
customers, (h) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition that was made
pursuant to and in compliance with Section 4.06, (i) Investments existing on the
Effective Date, (j) Currency Agreements and Interest Rate Agreements entered
into by the Company or any of its Restricted Subsidiaries for bona fide business
reasons and not for speculative purposes, and otherwise in compliance with this
Indenture, (k) guarantees by the Company or any of its Restricted Subsidiaries
of Indebtedness otherwise permitted to be incurred by the Company or any of its
Restricted Subsidiaries under this Indenture, (l) any Investment by the Company
or a Restricted Subsidiary of the Company in a Receivables Entity or any
Investment by a Receivables Entity in any other Person in connection with the
Qualified Receivables Transaction, (m) that portion of any Investment where the
consideration provided is Capital Stock of the Company (other than Disqualified
Stock or Preferred Stock of a Subsidiary that is not a Subsidiary Guarantor), or
(n) other Investments in an aggregate amount outstanding at any time not to
exceed $15 million.
"Permitted Liens" means the following types of Liens:
(a) Liens securing the Securities and the Guarantees;
(b) Liens securing indebtedness incurred in reliance on Section
4.03(b)(iv); provided that such Liens do not extend to or cover any
--------
property or assets of the Company or of any Restricted Subsidiary other
than the property or assets that secured such Indebtedness prior to the
time the applicable Restricted Subsidiary became a Restricted Subsidiary;
(c) Liens existing at the Effective Time, together with any Liens
securing Refinancing Indebtedness Incurred to refinance Indebtedness
secured by Liens existing on the Effective Date; provided that the Liens
--------
securing the Refinancing
18
Indebtedness shall not extend to property other than that pledged
under the Liens securing the Indebtedness being refinanced;
(d) Liens in favor of the Company on the property or assets, or
any proceeds, income or profit therefrom, of any Restricted
Subsidiary; and
(e) other Liens provided that the maximum aggregate amount of
outstanding obligations secured thereby shall not at any time exceed
$5 million.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Product Line Purchase Agreement" means the Amended and Restated
Product Line Purchase Agreement, dated as of July 26, 2001 and effective as of
May 7, 2001, by and between the Company and C&D, providing for the Company's
sale of assets relating to the Arrid Extra Dry, Arrid XX and Lady's Choice
antiperspirant and deodorant product lines (in the United States and Canada),
and the assets relating to the ▇▇▇▇▇▇▇-▇▇▇ line of pet products, to C&D and
C&D's assumption of related liabilities, as the same may be amended, modified or
supplemented from time to time.
"Purchase Agreement" means (a) the Purchase Agreement dated
August 14, 2001 , among the Company, Sub Co-Issuer and the Initial Purchasers
and (b) any other similar Purchase Agreement relating to Additional Securities.
"Purchase Money Indebtedness" means Indebtedness (a) consisting
of the deferred purchase price of an asset, conditional sale obligations,
obligations under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (b) Incurred
to finance the acquisition by the Company or a Restricted Subsidiary of such
asset, including additions and improvements; provided,
--------
19
however, that such Indebtedness is incurred within 180 days after the
-------
acquisition by the Company or such Restricted Subsidiary of such asset.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Company or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Receivable" means a right to receive payment arising from a sale
or lease of goods or services by a Person pursuant to an arrangement with
another Person pursuant to which such other Person is obligated to pay for goods
or services under terms that permit the purchase of such goods and services on
credit.
"Receivables Entity" means (i) any Receivables Subsidiary or (ii)
any other Person that is engaged in the business of acquiring, selling,
collecting, financing or refinancing Receivables, accounts (as defined in the
Uniform Commercial Code as in effect in any jurisdiction from time to time),
other accounts and/or other receivables, and/or related assets.
"Receivables Fees" means distributions or payments made directly
or by means of discounts with respect to any participation interest issued or
sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Receivables Financing.
"Receivables Financing" means any financing of Receivables of the
Company or any Restricted Subsidiary that have been transferred to a Receivables
Entity in a Financing Disposition.
"Receivables Repurchase Obligation" means any obligation of a
seller of receivables to repurchase receivables (including Receivables, accounts
(as defined in the Uniform Commercial Code as in effect in any jurisdiction from
time to time) and other accounts and receivables (including any thereof
constituting or evidenced by chattel paper, instruments or general intangibles))
arising as a result of a breach of a representation, warranty or covenant or
otherwise, including as a result of a receivable or portion thereof becoming
subject to any asserted defense, dispute, off-set or counterclaim
20
of any kind as a result of any action taken by, any failure to take action by or
any other event relating to the seller.
"Receivables Subsidiary" means a Subsidiary of the Company that
(a) is engaged solely in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time) and other
accounts and receivables (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), all proceeds thereof and all
rights (contractual and other), collateral and other assets relating thereto,
and any business or activities incidental or related to such business, and (b)
is designated as a "Receivables Subsidiary" by the Governing Board.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that Refinances
Refinancing Indebtedness); provided, however, that:
-------- -------
(a) if the Indebtedness being refinanced is Subordinated
Obligations, the Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced,
(b) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of (x)
the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the
Indebtedness being Refinanced plus (y) fees, underwriting discounts,
interest, premiums and other costs and expenses in connection with the
issuance of the Refinancing Indebtedness and repayment of the
Indebtedness being refinanced, and
(c) if the Indebtedness being Refinanced is subordinated in right
of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the
same extent as the Indebtedness being Refinanced;
21
provided further, however, that Refinancing Indebtedness shall not include:
-------- ------- -------
(i) Indebtedness of a Restricted Subsidiary (other than a
Subsidiary Guarantor) that Refinances Indebtedness of the Company or
(ii) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Effective Date.
"Representative" means the trustee, agent or representative (if
any) for an issue of Senior Indebtedness.
"Restricted Subsidiary" means Sub Co-Issuer and any other
Subsidiary of the Company other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company or
Sub Co-Issuer secured by a Lien. "Secured Indebtedness" of a Subsidiary
Guarantor has a correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Senior Indebtedness" of the Company, Sub Co-Issuer or any
Subsidiary Guarantor means the principal of, premium (if any) and accrued and
unpaid interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization of the Company, Sub Co-Issuer or
any Subsidiary Guarantor, regardless of whether or not a claim for post-filing
interest is allowed in such proceedings), and fees, indemnity expenses,
reimbursement obligations and other amounts owing in respect of, Bank
Indebtedness and all other Indebtedness of the Company, Sub Co-Issuer or any
Subsidiary Guarantor, as applicable, whether outstanding on the Closing Date or
thereafter Incurred, unless in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such obligations
are superior in right of payment to the Securities or such Subsidiary
Guarantor's Guarantee, as applicable; provided, however, that Senior
-------- -------
Indebtedness of the Company or any Subsidiary Guarantor shall not include (a)
any obligation of the Company or Sub Co-Issuer to any Subsidiary of the Company
or of such Subsidiary Guarantor to the Company, Sub Co-Issuer or any other
Subsidiary of the Company, (b) any liability for Federal, state,
22
local or other taxes owed or owing by the Company, Sub Co-Issuer or such
Subsidiary Guarantor, as applicable, (c) any accounts payable or other liability
to trade creditors arising in the ordinary course of business (including
Guarantees thereof or instruments evidencing such liabilities), (d) any
Indebtedness or obligation of the Company, Sub Co-Issuer or such Subsidiary
Guarantor, as applicable, (and any accrued and unpaid interest in respect
thereof) that by its terms is subordinate or junior in any respect to any other
Indebtedness or obligation of the Company, Sub Co-Issuer or such Subsidiary
Guarantor, as applicable, including any Senior Subordinated Indebtedness and any
Subordinated Obligations of the Company or such Subsidiary Guarantor, as
applicable, (e) any obligations represented by any Capital Stock or (f) that
portion of any Indebtedness Incurred in violation of Section 4.03 of this
Indenture but, as to any such Indebtedness, no such violation shall be deemed to
exist for purposes of this clause (f) if the holder(s) of such Indebtedness or
their representative shall have received an Officers' Certificate to the effect
that the Incurrence of such Indebtedness does not (or, in the case of revolving
credit indebtedness, that the Incurrence of the entire committed amount thereof
at the date on which the initial borrowing thereunder is made would not) violate
such provisions of this Indenture.
"Senior Subordinated Indebtedness" of the Company means the
Securities and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank equally in right of payment with the
Securities and is not subordinated by its terms in right of payment to any
Indebtedness of the Company which is not Senior Indebtedness. "Senior
Subordinated Indebtedness" of Sub Co-Issuer or a Subsidiary Guarantor has a
correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary
that would be a "Significant Subsidiary" of the Company within the meaning of
Rule 1-02 under Regulation S-X promulgated by the SEC.
"Standard Receivable Obligations" means representations,
warranties, covenants, indemnities and other obligations (including Guarantees
and Indebtedness) which are reasonably customary in a Financing Disposition (as
determined by the Company in good faith), including, without limitation, those
relating to the servicing of the assets of a Receivables Entity, it being
understood that any Receivables Repurchase Obligation shall be deemed to be a
Standard Receivable Obligation.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
23
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior to any extent in right of payment to the Securities
pursuant to a written agreement. "Subordinated Obligation" of Sub Co-Issuer or a
Subsidiary Guarantor has a correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, members of the Governing Board, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(a) such Person, (b) such Person and one or more Subsidiaries of such Person or
(c) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a Subsidiary of the Company pursuant to
the terms of this Indenture.
"Subsidiary Guarantor" means any Subsidiary that has a
Subsidiary Guarantee.
"Tax Distribution" means any distribution by the Company to
its members at the times of and in amounts equal to the taxes that would be
payable calculated as if the Company and its domestic non-corporate Subsidiaries
are collectively a U.S. corporation subject to Federal, state, provincial,
foreign and local taxes at a combined effective corporate tax rate of 42%. In
the case of dispositions by the members or any of their respective Affiliates of
any asset or Subsidiary which was distributed by the Company to its members in
accordance with Section 4.04(b)(xi) and (b)(xii), the members shall be entitled
to receive or retain an amount for taxes calculated in accordance with the
principles of the preceding sentence assuming a combined effective tax rate of
42%.
"Temporary Cash Investments" means any of the following: (a)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, (b) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act), (c)
repurchase obligations
24
with a term of not more than 30 days for underlying securities of the types
described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above, (d) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") or "A-1" (or higher) according to Standard and Poor's
Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and (e)
investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or "A" by Moody's.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.(S)(S)
-----
77aaa-77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transaction Documents" means the C&D Agreements, the ▇▇▇▇▇
Agreements, the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Agreements, the agreements relating to the
Acquisition and contemporaneous sale of assets to C&D, the financing thereof,
the services provided or to be provided in connection therewith (including
pursuant to the ▇▇▇▇▇ Agreements and the C&D Agreements), and the various
ancillary documents, commitment letters and agreements relating thereto, as the
same may be amended, modified or supplemented from time to time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Governing Board in the manner provided below and (b) any Subsidiary of an
25
Unrestricted Subsidiary. The Governing Board may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary of the Company)
to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Subsidiary of the Company that
is not a Subsidiary of the Subsidiary to be so designated; provided, however,
-------- -------
that either (i) the Subsidiary to be so designated has total Consolidated assets
of $1,000 or less or (ii) if such Subsidiary has Consolidated assets greater
than $1,000, then such designation would be permitted under Section 4.04. The
Governing Board may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
-------- -------
designation (a) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (b) no Default shall have occurred and be continuing. Any
such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Governing Board shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the resolution of the Governing Board giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital
Stock or other interests (including partnership interests and limited liability
company interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, members of the Governing Board, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of
the Company all the Capital Stock of which (other than directors' qualifying
shares or similar immaterial equity interests) is owned by the Company or
another Wholly Owned Subsidiary.
26
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
---- -------
"Affiliate Transaction" ............................................. 4.07(a)
"Appendix" .......................................................... Preamble
"Bankruptcy Law" .................................................... 6.01
"beneficial owner" .................................................. 1.01
"Blockage Notice" ................................................... 10.03
"Change of Control Offer" ........................................... 4.08(b)
"covenant defeasance option" ........................................ 8.01(b)
"Cranbury Assets" ................................................... 4.04(b)
"Custodian" ......................................................... 6.01
"Definitive Securities" ............................................. Appendix A
"Discharge" ......................................................... 1.01
"Event of Default" .................................................. 6.01
"Exchange Securities" ............................................... Preamble
"Global Securities" ................................................. Appendix A
"Guarantee Blockage Notice" ......................................... 12.03
"Guarantee Payment Blockage Period" ................................. 12.03
"Guaranteed Obligations" ............................................ 11.01
"incorporated provision" ............................................ 13.01
"Initial Securities" ................................................ Preamble
"legal defeasance option" ........................................... 8.01(b)
"Legal Holiday" ..................................................... 13.08
"Notice of Default" ................................................. 6.01
"Offer" ............................................................. 4.06(b)
"Offer Amount" ...................................................... 4.06(c)(ii)
"Offer Period" ...................................................... 4.06(c)(ii)
"Original Securities" ............................................... Preamble
"pay its Guarantee" ................................................. 12.03
"pay the Securities" ............................................... 10.03
"Paying Agent" ...................................................... 2.04
"Payment Blockage Period" ........................................... 10.03
"protected purchaser" ............................................... 2.08
"Purchase" .......................................................... 1.01
"Purchase Date" ..................................................... 4.06(c)(i)
"Registration Agreement" ............................................ Appendix A
"Registered Exchange Offer" ......................................... Appendix A
"Registrar" ......................................................... 2.04
"Restricted Payment" ................................................ 4.04(a)
"Securities Custodian" .............................................. Appendix A
27
Defined in
Term Section
---- -------
"Sale" ............................................................ 1.01
"Special Redemption Date" ......................................... Exhibits A and B
"Special Redemption Price" ........................................ Exhibits A and B
"Sub Co-Issuer" ................................................... Preamble
"Successor Company" ............................................... 5.01(a)
"Successor Grantor" ............................................... 5.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture
---------------------------------------------
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
---
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the
Subsidiary Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
---------------------
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
28
(e) words in the singular include the plural and words in
the plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of
its nature as unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. The
----------------------------------------
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is $450,000,000. The Securities may be issued in
one or more series. All Securities of any one series shall be substantially
identical except as to denomination.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10 or 3.06 hereof or the Appendix),
there shall be (a) established in or pursuant to a resolution of the Governing
Board and (b) (i) set forth or determined in the manner provided in an Officers'
Certificate or (ii) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as
part of a new or existing series of Securities and the title of
such Additional Securities (which shall distinguish the
Additional Securities of the series from Securities of any other
series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which shall be in an aggregate principal amount not to
exceed $225,000,000 (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or
29
in lieu of, other Securities of the same series pursuant to Section
2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix and except for
Securities which, pursuant to Section 2.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set
forth in Exhibit A hereto and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of the Appendix in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the depositary for such Global Security or a nominee
thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Governing Board, a
copy of an appropriate record of such action shall be certified by the Secretary
or any Assistant Secretary of the Company and Sub Co-Issuer and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate or the
indenture supplemental hereto setting forth the terms of the Additional
Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
---------------
Original Securities, the Additional Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The (a) Original Securities and the Trustee's
certificate of authentication and (b) any Additional Securities (if issued as
Transfer Restricted Securities) and the Trustee's certificate of authentication
shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall each
be substantially in the form of Exhibit B hereto, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company, Sub Co-Issuer or any Subsidiary Guarantor is
subject, if any, or usage (provided that any
30
such notation, legend or endorsement is in a form acceptable to the Company and
Sub Co-Issuer). Each Security shall be dated the date of its authentication. The
Securities shall be issuable only in registered form without interest coupons
and only in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer or
----------------------------
assistant secretary of the Company and one Officer or assistant secretary of the
Sub Co-Issuer shall sign the Securities for the Company and Sub Co-Issuer by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company and Sub Co-Issuer to authenticate the Securities. Any
such appointment shall be evidenced by an instrument signed by a Trust Officer,
a copy of which shall be furnished to the Company. Unless limited by the terms
of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Company and
--------------------------
Sub Co-Issuer shall maintain an office or agency where Securities may be
presented or surrendered for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented or
surrendered for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company and
Sub Co-Issuer may have one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent, and
the term "Registrar" includes any co-registrars. The Company and Sub Co-Issuer
initially appoint the Trustee as (i) Registrar and Paying Agent in connection
with the Securities and (ii) the Securities Custodian with respect to the Global
Securities.
(b) The Company and Sub Co-Issuer shall enter into an
appropriate agency agreement with any Registrar or Paying Agent not a party to
this Indenture,
31
which shall implement the provisions of this Indenture that relate to such
agent. The Company and Sub Co-Issuer shall notify the Trustee of the name and
address of any such agent. If the Company or Sub Co-Issuer fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Company, Sub
Co-Issuer or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
(c) The Company or Sub Co-Issuer may remove any Registrar or Paying
Agent upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
-------- -------
acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company or Sub Co-Issuer and such successor
Registrar or Paying Agent, as the case may be, and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as Registrar or
Paying Agent until the appointment of a successor in accordance with clause (i)
above. The Registrar or Paying Agent may resign at any time upon written notice
to the Company, Sub Co-Issuer and the Trustee.
(d) The Trustee is authorized to enter into a letter of representation
with the Depositary in the form provided to the Trustee by the Company or the
Sub Co-Issuer and to act in accordance with such letter.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to each due
-----------------------------------
date of the principal of and interest on any Security, the Company and Sub
Co-Issuer shall deposit with the Paying Agent (or if the Company, Sub Co-Issuer
or a Wholly Owned Subsidiary is acting as Paying Agent, segregate and hold in
trust for the benefit of the Persons entitled thereto) a sum sufficient to pay
such principal and interest when so becoming due. The Company and Sub Co-Issuer
shall require each Paying Agent (other than the Trustee) to agree in writing,
subject to Articles 4 and 12, that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest on the Securities, and shall notify the
Trustee of any default by the Company or Sub Co-Issuer in making any such
payment. If the Company, Sub Co-Issuer or a Subsidiary of the Company acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company and Sub Co-Issuer at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as current a
------------
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
and/or Sub Co-Issuer shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing
32
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be issued in
---------------------
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company and Sub Co-Issuer shall execute and the Trustee shall authenticate
Securities at the Registrar's request. The Company and Sub Co-Issuer may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any transfer or exchange pursuant to this Section.
The Company and Sub Co-Issuer shall not be required to make and the Registrar
need not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or any Securities for a period of 15 days before a selection
of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Company, Sub Co-Issuer, the Subsidiary Guarantors, the Trustee,
the Paying Agent and the Registrar may deem and treat the Person in whose name a
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Securities)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, Sub Co-Issuer,
any Subsidiary Guarantor, the Trustee, the Paying Agent or the Registrar shall
be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (a) the Holder of
such Global Security (or its agent) or (b) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security is
----------------------
surrendered to the Registrar or if the Holder of a Security claims that the
Security has
33
been lost, destroyed or wrongfully taken, the Company and Sub Co-Issuer shall
issue and the Trustee shall authenticate a replacement Security if the Trustee's
requirements are met, such that the Holder (a) satisfies the Company, Sub
Co-Issuer or the Trustee within a reasonable time after such Holder has notice
of such loss, destruction or wrongful taking and the Registrar does not register
a transfer prior to receiving such notification, (b) makes such request to the
Company, Sub Co-Issuer or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee, the Company or Sub Co-Issuer, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee
to protect the Company, Sub Co-Issuer, the Trustee, the Paying Agent and the
Registrar from any loss that any of them may suffer if a Security is replaced.
The Company, Sub Co-Issuer and the Trustee may charge the Holder for their
expenses in replacing a Security. In the event any such mutilated, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company or Sub Co-Issuer in their discretion may pay such Security
instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and Sub Co-Issuer.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
----------------------
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. Subject to Section 13.06, a Security does not cease to be
outstanding because the Company, Sub Co-Issuer or an Affiliate of the Company
holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee, the Company and Sub Co-Issuer receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
34
SECTION 2.10. Temporary Securities. In the event that Definitive
--------------------
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Company and Sub Co-Issuer may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company and Sub Co-Issuer consider appropriate for
temporary Securities. Without unreasonable delay, the Company and Sub Co-Issuer
shall prepare and the Trustee shall authenticate Definitive Securities and make
them available for delivery in exchange for temporary Securities upon surrender
of such temporary Securities at the office or agency of the Company or Sub
Co-Issuer, without charge to the Holder.
SECTION 2.11. Cancelation. The Company and Sub Co-Issuer at any time
-----------
may deliver Securities to the Trustee for cancelation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee, or at the direction
of the Trustee, the Registrar or Paying Agent, and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Company and Sub
Co-Issuer pursuant to written direction by an Officer. The Company and Sub
Co-Issuer may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation. The Trustee shall not
authenticate Securities in place of canceled Securities other than pursuant to
the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Company and Sub Co-Issuer
------------------
default in a payment of interest on the Securities, the Company or Sub Co-Issuer
shall pay the defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. The Company or Sub Co-Issuer may pay
the defaulted interest to the Persons who are Holders on a subsequent special
record date. The Company and Sub Co-Issuer shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each Holder a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Company and Sub Co-Issuer in
----------------------
issuing the Securities may use "CUSIP" and ISIN numbers (if then generally in
use) and, if so, the Trustee shall use "CUSIP" and ISIN numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
-------- -------
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such
35
numbers. The Company or Sub Co-Issuer shall promptly notify the Trustee of any
change in the CUSIP and ISIN numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company or Sub Co-Issuer
------------------
elect to redeem Securities pursuant to paragraph 5(a) of the Securities or are
required to redeem Securities pursuant to paragraph 5(b) of the Securities, the
Company shall notify the Trustee in writing of the redemption date, the
principal amount of Securities to be redeemed and that such redemption is being
made pursuant to paragraph 5(a) or 5(b), as applicable, of the Securities.
The Company shall give notice to the Trustee provided for in this
Section and pursuant to paragraph 5(a) of the Securities at least 35 but not
more than 60 days before the redemption date or if the Company and Sub Co-Issuer
redeem Securities pursuant to paragraph 5(b) of the Securities, the Company
shall give the Trustee prompt written notice thereof at least 10 days before the
Special Redemption Date, unless the Trustee consents to a shorter period, which
consent will not be unreasonably withheld. Such notice shall be accompanied by
an Officers' Certificate and an Opinion of Counsel from the Company and Sub
Co-Issuer to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If, pursuant to
--------------------------------------
paragraph 5(a) of the Securities, fewer than all the Securities are to be
redeemed, the Trustee shall select the Securities to be redeemed in compliance
with the requirements of the principal national securities exchange, if any, on
which the Securities are listed, or if such Securities are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion shall deem to be fair and
appropriate. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000. Securities and portions of them the Trustee selects shall be in amounts
of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company and Sub Co-Issuer promptly
of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but not more
--------------------
than 60 days before a date for redemption of Securities (except in the case of a
36
redemption pursuant to paragraph 5(b) of the Securities, in which case, the
notice shall be mailed within the time period specified in such paragraph), the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest, if any,
to be paid, to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued interest, if any;
(v) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and principal amounts of the particular Securities
to be redeemed and the identification of such series;
(vi) that, unless the Company or Sub Co-Issuer defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue on and after the
redemption date; and
(vii) the paragraph of the Securities pursuant to which redemption is
being made.
(b) The notice, if mailed in a manner provided herein, shall be
conclusively presumed to have been sent, whether or not the Holder receives such
notice.
(c) At the Company's and Sub Co-Issuer's request, the Trustee shall
give the notice of redemption in the Company's and Sub Co-Issuer's name and at
the Company's and Sub Co-Issuer's expense. In such event, the Company and Sub
Co-Issuer shall provide the Trustee with the information required by this
Section at least 30 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the
37
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the redemption price stated in the notice, plus accrued interest, to the
redemption date; provided, however, that if the redemption date is after a
-------- -------
regular record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Holder of the redeemed Securities registered on
the relevant record date. Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00 a.m., New
---------------------------
York City time, on the redemption date, the Company and Sub Co-Issuer shall
deposit with the Paying Agent (or, if the Company, Sub Co-Issuer or a Wholly
Owned Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient in the aggregate to pay the redemption price of and accrued interest
on all Securities or portions thereof to be redeemed on that date other than
Securities or portions of Securities called for redemption that have been
delivered by the Company and Sub Co-Issuer to the Trustee for cancelation. On
and after the redemption date, interest shall cease to accrue on Securities or
portions thereof called for redemption so long as the Company and Sub Co-Issuer
has deposited with the Paying Agent funds sufficient to pay the principal of,
plus accrued and unpaid interest on, the Securities to be redeemed, whether or
not such Securities are presented for payment, unless the Paying Agent is
prohibited from making such payment pursuant to the terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
---------------------------
Security that is redeemed in part, the Company and Sub Co-Issuer shall execute
and the Trustee shall authenticate for the Holder (at the Company's expense) a
new Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company and Sub Co-Issuer
---------------------
shall promptly pay the principal of and interest on the Securities on the dates
and in the manner provided in the Securities and in this Indenture. Principal
and interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture.
The Company and Sub Co-Issuer shall pay interest on overdue principal
at the rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
38
SECTION 4.02. SEC Reports. Notwithstanding that the Company and Sub
-----------
Co-Issuer may not be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company will file, to the extent permitted under
the Exchange Act, with the SEC from and after the effective date of any
registration statement filed with the SEC in connection with the registration of
Securities, and provide the Trustee and, upon request, Holders and prospective
Holders within 15 days after it files them with the SEC, copies of its annual
report and the information, documents and other reports that are specified in
Sections 13 and 15(d) of the Exchange Act. The Company and Sub Co-Issuer also
will comply with the other provisions of Section 314(a) of the TIA.
Following the Effective Date, and prior to the date on which the
Company becomes subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act, the Company will provide, without charge, upon the
written request of (i) any Holder or (ii) a prospective Holder (in each case,
with a copy to the Trustee), with a business description, financial statements
and management's discussion and analysis that are substantially similar to those
that would be included in Forms 10-K, 10-Q and 8-K, not later than the time such
reports would be filed with the SEC if the Company were subject to such
reporting requirements.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not,
--------------------------
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
-------- -------
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto, the Consolidated Coverage Ratio would be
greater than 2.00 to 1 if such Indebtedness is Incurred on or prior to December
31, 2003 or 2.25 to 1 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding Section 4.03(a), the Company and its Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness Incurred pursuant to the Credit Agreement in an
aggregate principal amount not to exceed $350 million at any time
outstanding;
(ii) Indebtedness of the Company owed to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Company or any Restricted Subsidiary; provided, however, that (1) any
-------- -------
subsequent issuance or transfer of any Capital Stock or any other event
that results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
the Company or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the issuer thereof, (2)
if the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the Securities
39
at least to the same extent that the Securities are subordinated to
Senior Indebtedness of the Company and (3) if a Restricted Subsidiary that
is a Subsidiary Guarantor is the obligor on such Indebtedness and such
Indebtedness is owed to and held by a Wholly Owned Subsidiary that is not a
Subsidiary Guarantor, such Indebtedness is expressly subordinated to the
Subsidiary Guarantee of such Restricted Subsidiary at least to the same
extent that such Subsidiary Guarantee is subordinated to Senior
Indebtedness of such Subsidiary Guarantor;
(iii) Indebtedness (1) represented by the Securities (not including
any Additional Securities) and the Subsidiary Guarantees, (2) outstanding
on the Closing Date (other than the Indebtedness described in clauses (i)
and (ii) above), (3) consisting of Refinancing Indebtedness Incurred in
respect of any Indebtedness described in clauses (i) or (ii) above or this
clause (iii) (including Indebtedness that is Refinancing Indebtedness) or
Section 4.03(a) and (4) consisting of Guarantees of any Indebtedness
permitted under clauses (i) and (ii) of this paragraph (b);
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by or became a Restricted Subsidiary of the Company (other than
Indebtedness Incurred in contemplation of, in connection with, as
consideration in, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a
Subsidiary of or was otherwise acquired by the Company); provided, however,
-------- -------
that on the date that such Restricted Subsidiary is acquired by the
Company, the Company would have been able to Incur $1.00 of additional
Indebtedness pursuant to Section 4.03(a) after giving effect to the
Incurrence of such Indebtedness pursuant to this clause (iv) and (2)
Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause
(iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by the
Company and the Restricted Subsidiaries in the ordinary course of their
business or other similar instruments or obligations issued, or relating to
liabilities or obligations Incurred by the Company and the Restricted
Subsidiaries in the ordinary course of their business (including those
issued to governmental entities in connection with self-insurance under
applicable workers' compensation statutes), (2) in respect of the financing
of insurance premiums by the Company or any Restricted Subsidiary in the
ordinary course of their business, and (3) under Interest Rate Agreements
entered into for bona fide hedging purposes of the Company in the ordinary
course of business; provided, however, that such
-------- -------
40
Interest Rate Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as a result of fluctuations in
interest rates or by reason of fees, indemnities and compensation payable
thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations (in
an aggregate principal amount not in excess of $20 million at any time
outstanding);
(vii) Indebtedness of any Foreign Subsidiary Incurred for working
capital purposes;
(viii) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness or any other obligation or liability of the Company or any
Restricted Subsidiary not incurred in violation of this Section 4.03;
(ix) Indebtedness of a Receivables Subsidiary secured by a Lien on all
or part of the assets disposed of in, or otherwise Incurred in connection
with, a Financing Disposition (which Indebtedness is, except for Standard
Receivables Obligations, otherwise without recourse to the Company or any
Restricted Subsidiary of the Company (other than such Receivables
Subsidiary));
(x) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements entered into, in the judgment of the Company, to
protect the Company or such Restricted Subsidiary from fluctuations in
currency exchange rates and not entered into for speculative purposes;
(xi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
-------- -------
business days of Incurrence; or
(xii) Indebtedness (other than Indebtedness permitted to be Incurred
after the Effective Date pursuant to Section 4.03(a) or any other clause of
this Section 4.03(b)) in an aggregate principal amount on the date of
Incurrence that, when added to all other Indebtedness Incurred pursuant to
this clause (xii) and to remain outstanding immediately after such
incurrence, shall not exceed $20 million.
(c) Notwithstanding the foregoing, the Company shall not Incur any
Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations. The Company
41
shall not Incur any Indebtedness if such Indebtedness is subordinate or junior
in ranking in any respect to any Senior Indebtedness unless such Indebtedness is
Senior Subordinated Indebtedness or is expressly subordinated in right of
payment to Senior Subordinated Indebtedness. In addition, the Company shall not
Incur after the Closing Date any Secured Indebtedness, other than Secured
Indebtedness secured by Permitted Liens, which is not Senior Indebtedness unless
contemporaneously therewith effective provision is made to secure the Securities
equally and ratably with (or on a senior basis to, in the case of Indebtedness
subordinated in right of payment to the Securities) such Secured Indebtedness
for so long as such Secured Indebtedness is secured by a Lien. A Subsidiary
Guarantor shall not Incur any Indebtedness if such Indebtedness is by its terms
expressly subordinate or junior in ranking in any respect to any Senior
Indebtedness of such Subsidiary Guarantor unless such Indebtedness is Senior
Subordinated Indebtedness of such Subsidiary Guarantor or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness of such
Subsidiary Guarantor. In addition, a Subsidiary Guarantor shall not Incur any
Secured Indebtedness, other than Secured Indebtedness secured by Permitted
Liens, that is not Senior Indebtedness of such Subsidiary Guarantor unless
contemporaneously therewith effective provision is made to secure the Subsidiary
Guarantee of such Subsidiary Guarantor equally and ratably with (or on a senior
basis to, in the case of Indebtedness subordinated in right of payment to such
Subsidiary Guarantee) such Secured Indebtedness for as long as such Secured
Indebtedness is secured by a Lien.
(d) For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness,
provided that (i) the Dollar-equivalent principal amount of any such
-------- ----
Indebtedness outstanding on the Closing Date shall be calculated based on the
relevant currency exchange rate in effect on the Closing Date, (ii) if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced and (iii) the
Dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and that is incurred pursuant to the Bank Indebtedness shall be
calculated based on the relevant currency exchange rate in effect on, at the
Company's option, (i) the Closing Date, (ii) any date on which any of the
respective commitments with respect to the Bank Indebtedness shall be
reallocated between or among facilities or subfacilities thereunder, or on which
such rate is otherwise calculated for any purpose thereunder, or (iii) the date
of such Incurrence. The principal amount of any Indebtedness Incurred to
refinance
42
other Indebtedness, if Incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective Indebtedness
is denominated that is in effect on the date of such refinancing. For purposes
of determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03:
(1) Indebtedness Incurred pursuant to the Credit Agreement prior to or
on the Effective Date shall be treated as Incurred pursuant to Section
4.03(b)(i),
(2) Indebtedness permitted by this Section 4.03 need not be permitted
solely by reference to one provision permitting such Indebtedness but may
be permitted in part by one such provision and in part by one or more other
provisions of this Section permitting such Indebtedness, and
(3) in the event that Indebtedness meets the criteria of more than one
of the types of Indebtedness described in this Section, the Company, in its
sole discretion, may classify such Indebtedness and only shall be required
to include the amount of such Indebtedness in one of such clauses but may
include the same in more than one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall
---------------------------------
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
(i) declare or pay any dividend or make any distribution on or in respect of its
Capital Stock (including any payment in connection with any merger or
consolidation involving the Company or any Subsidiary of the Company) to the
holders of its Capital Stock in their capacity as such, except (x) dividends or
distributions payable solely in its Capital Stock (other than Disqualified Stock
or, in the case of a Subsidiary, Preferred Stock) and (y) dividends or
distributions payable to the Company or a Restricted Subsidiary (and, if such
Restricted Subsidiary has shareholders or equity owners other than the Company
or other Restricted Subsidiaries, to its other shareholders or equity owners on
a pro rata basis), (ii) purchase, repurchase, redeem, retire or otherwise
acquire for value any Capital Stock of the Company or any Restricted Subsidiary
held by Persons other than the Company or a Restricted Subsidiary, (iii)
purchase, repurchase, redeem, retire, defease or otherwise acquire for value,
prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment any Subordinated Obligations (other than the purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition) or (iv) make any Investment (other than a
Permitted Investment) in any Person, (any such dividend, distribution, payment,
purchase, redemption, repurchase, defeasance, other acquisition, retirement or
Investment (other than the exceptions thereto
43
listed in Section 4.04(b)) being herein referred to as a "Restricted Payment")
if at the time the Company or such Restricted Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Governing Board, whose determination shall
be conclusive and evidenced by a resolution of the Governing Board)
declared or made subsequent to the Closing Date would exceed the sum,
without duplication of,
(A) 50% of the Consolidated Net Income less, so long as the
Company is treated as a pass-through entity for United States Federal
income tax purposes, the amount of Tax Distributions based on such
period, accrued during the period (treated as one accounting period)
from the beginning of the fiscal quarter immediately following the
fiscal quarter during which the Closing Date occurs to the end of the
most recent fiscal quarter ending at least 45 days prior to the date
of such Restricted Payment (or, in case such Consolidated Net Income
shall be a deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds and Fair Market Value of
property or assets received by the Company as capital contributions to
the Company or from the issue or sale of its Capital Stock (other than
Disqualified Stock) in each case, subsequent to the Closing Date
(other than an issuance or sale to (x) a Subsidiary of the Company or
(y) an employee stock ownership plan or other trust established by the
Company or any of its Subsidiaries, except to the extent that
Consolidated Net Worth increases as a result of such issue or sale to
such plan or trust);
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Closing Date of any Indebtedness of the Company or
its Restricted Subsidiaries issued after the Closing Date which is
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash or the Fair Market
44
Value of other property distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange) plus the
amount of cash, property or assets (determined as provided above)
received by the Company or any Restricted Subsidiary upon such
conversion or exchange);
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of
dividends, repayments of the principal of loans or advances or
other transfers of assets to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries or (y) the
redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition
of "Investment") not to exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the
amount of Restricted Payments; and
(E) in the case of any disposition or repayment or return of
all or any portion of any Investment other than a Permitted
Investment (without duplication of any amount deducted in
calculating the amount of Investment at any time outstanding
included in the amount of Restricted Payments), an amount in the
aggregate equal to the lesser of the return of capital, repayment
or other proceeds with respect to all such Investments and the
initial amount of all such Investments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, retirement, prepayment,
repayment or defeasance or other acquisition for value of Capital
Stock of the Company or Subordinated Obligations made by exchange for,
or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or other trust established by the
Company or any of its Subsidiaries) except to the extent that
Consolidated Net Worth increases as a result of such issue or sale to
such plan or trust); provided, however, that (1) such purchase,
-------- -------
repurchase, redemption, retirement or other acquisition for value
shall be excluded in the calculation of the amount of Restricted
Payments and (2) the Net Cash Proceeds from such sale applied in the
manner set forth in this clause (i) shall be excluded from the
calculation of amounts under Section 4.04(a)(iv)(3)(B);
45
(ii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Indebtedness of the Company that is
permitted to be Incurred pursuant to Section 4.03(b); provided, however,
-------- -------
that such prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value shall be excluded in
the calculation of the amount of Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations from Net Available Cash to the extent permitted by Section
4.06; provided, however, that such prepayment, repayment, purchase,
-------- -------
repurchase, redemption, retirement, defeasance or other acquisition for
value, shall be excluded in the calculation of the amount of Restricted
Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section 4.04; provided, however, that such dividends shall be
-------- -------
included in the calculation of the amount of Restricted Payments;
(v) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of, or options to purchase shares of,
common stock or membership interests of the Company or any of its
Subsidiaries from employees, former employees, directors or former
directors, members or former members of the Governing Board of the Company
or any of its Subsidiaries (or permitted transferees of such employees,
former employees, directors or former directors, members or former members
of the Governing Board), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by the
Governing Board under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such common stock or
membership interests or upon death, resignation or termination of
employment; provided, however, that the aggregate amount of such purchases,
-------- -------
repurchases, redemptions, retirements and other acquisitions for value will
not exceed $5 million in any calendar year; provided that any unused
--------
amounts in one year can be carried forward the next year, but cannot be
carried forward to any succeeding year; provided further, however, that
---------------- -------
such purchases, repurchases, redemptions, retirements and other
acquisitions for value shall be included in the calculation of the amount
of Restricted Payments;
(vi) Tax Distributions for so long as the Company is treated as a
pass-through entity for United States Federal income tax purposes;
provided, however, that such Tax Distributions shall be excluded in the
-------- -------
calculation of the amount of Restricted Payments;
46
(vii) Restricted Payments (including loans and advances) in an
aggregate amount at any time not to exceed $5 million (net of repayments of
any such loans or advances);
(viii) the payment of fees and compensation as permitted under Section
4.07(b)(v) or 4.07(b)(vii) provided that such payments shall be excluded in
-------- ----
the calculation of the amount of Restricted Payments;
(ix) repurchases of Capital Stock deemed to occur upon the exercise
of stock options if such Capital Stock represents a portion of the exercise
price thereof; provided that such repurchases shall be excluded in the
-------- ----
calculation of the amount of Restricted Payments;
(x) Restricted Payments made pursuant to, or contemplated by, the
provisions of any Transaction Document as such provisions are described in,
or referred to, in the offering memorandum, and as the same may be amended
or replaced by a Governing Board Approval; provided that such payments
-------- ----
shall be excluded in the calculation of the amount of Restricted Payments;
(xi) dividends or other distributions made to members of the Company
or any of their respective Affiliates in connection with the direct or
indirect sale of the Capital Stock or other ownership interests in, or all
or substantially all of the assets of, any entity which immediately prior
to such distribution was a Subsidiary of the Company; provided the Net
Available Cash (assuming such sale is an Asset Disposition for purposes of
the definition of Net Available Cash) from such sale is used in compliance
with Section 4.06 (including the provisos at the end of paragraph (a)
thereof); provided further that such dividends or other distributions shall
-------- -------
be excluded in the calculation of the amount of Restricted Payments;
(xii) dividends or other distributions made to members of the Company
or any of their respective Affiliates in connection with the direct or
indirect sale of (A) the Capital Stock or other ownership interests in, or
all or substantially all of the assets of, any entity which immediately
prior to such distribution was a Subsidiary of the Company substantially
all the assets of which are comprised of the manufacturing facility located
in Cranbury, New Jersey and all properties and assets associated with such
facility (the "Cranbury Assets") or (B) the Cranbury Assets; provided the
--------
Net Available Cash (assuming such sale were an Asset Disposition for
purposes of the definition of Net Available Cash) from such sale is paid to
the Company; provided, further, however, that the amount so paid to the
-------- ------- -------
Company shall be excluded from the calculation of the amount of Restricted
Payments under Section 4.04(a)(iv)(3)(B) and provided, further, that such
-------- -------
47
dividends or other distributions shall be excluded in the calculation of
the amount of Restricted Payments;
(xiii) the distribution of Capital Stock of an Unrestricted Subsidiary
to holders of Capital Stock of the Company, provided that such distribution
--------
is made promptly following the formation of, and investment in, such
Unrestricted Subsidiary, and provided further that such distribution (but
----------------
not such investment) shall be excluded in the calculation of the amount of
Restricted Payments; or
(xiv) the Company or any Restricted Subsidiary from purchasing all
(but not less than all), excluding directors' qualifying shares, of the
Capital Stock or other ownership interests in a Subsidiary of the Company
which Capital Stock or other ownership interests were not theretofore owned
by the Company or a Restricted Subsidiary of the Company.
SECTION 4.05. Limitation on Restrictions on Distributions from
------------------------------------------------
Restricted Subsidiaries. The Company shall not, and shall not permit any
-----------------------
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary, other than a Subsidiary Guarantor, to (a) pay dividends
or make any other distributions on its Capital Stock or pay any Indebtedness or
other obligations owed to the Company, (b) make any loans or advances to the
Company or (c) transfer any of its property or assets to the Company, except:
(i) any encumbrance or restriction pursuant to applicable law or an
agreement in effect at or entered into on the Closing Date or at the
Effective Time (including this Indenture) and any encumbrance or
restriction pursuant to any agreement governing Bank Indebtedness;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of
the funds or credit support utilized to consummate the transaction or
series of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by the Company)
and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (c) (i) or (c) (ii) of this Section 4.05 or this
clause (iii) or contained in any amendment to an agreement referred to in
clause (c)(i) or (c)(ii) of this Section 4.05 or this clause (iii);
provided, however, that the encumbrances and
-------- -------
48
restrictions contained in any such Refinancing agreement or amendment are
not materially less favorable taken as a whole, as determined by the
Governing Board, to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
(iv) in the case of clause (c), any encumbrance or restriction (1)
that restricts the subletting, assignment or transfer of any property or
asset or right and is contained in any lease, license or other contract
entered into in the ordinary course of business or (2) contained in
security agreements securing Indebtedness of a Restricted Subsidiary to the
extent such encumbrance or restriction restricts the transfer of the
property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or disposition
of all or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;
(vi) any encumbrances or restrictions contained in any credit
facility extended to any Foreign Subsidiary of the Company to meet such
Subsidiary's working capital needs;
(vii) Indebtedness or other contractual requirements of a Receivables
Entity in connection with a Qualified Receivables Transaction; provided
--------
that such restrictions apply only to such Receivables Entity;
(viii) restrictions on the transfer of assets pursuant to any
Permitted Lien;
(ix) any agreement or instrument relating to any Indebtedness
permitted to be Incurred subsequent to the Effective Date pursuant to
Section 4.03, if (x) either (i) the encumbrance or restriction applies only
in the event of a payment default or a default with respect to a financial
covenant contained in the terms of such agreement or instrument or (ii) the
Company in good faith determines that such encumbrance or restriction will
not cause the Company not to have the funds necessary to pay the principal
of or interest on the Securities and (y) the encumbrance or restriction is
not materially more disadvantageous to the Holders of the Securities than
is customary in comparable financings (as determined by the Company in good
faith); and
(x) any agreement or instrument governing Capital Stock of any
Person other than a Wholly Owned Subsidiary that is acquired after the
Effective Date.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock. (a)
--------------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary to, make
any
49
Asset Disposition unless (i) the Company or such Restricted Subsidiary or the
direct or indirect equity owners of the Company receives consideration
(including by way of relief from, or by any other Person assuming sole
responsibility for, any liabilities, contingent or otherwise) at the time of
such Asset Disposition at least equal to the fair value, as determined in good
faith by the Governing Board, of the shares and assets subject to such Asset
Disposition, (ii) at least 75% of the consideration thereof received is in the
form of cash and (iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company or the direct or indirect
equity owners of the Company (or such Restricted Subsidiary, as the case may be)
(1) first, to the extent the Company elects (or is required by the terms of any
-----
Indebtedness), to prepay, repay, purchase, repurchase, redeem, retire, defease
or otherwise acquire for value Senior Indebtedness of the Company or
Indebtedness (other than obligations in respect of Preferred Stock) of a
Restricted Subsidiary (in each case other than Indebtedness owed to the Company
or an Affiliate of the Company and other than obligations in respect of
Disqualified Stock) within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash; (2) second, to the extent
------
of the balance of Net Available Cash after application in accordance with clause
(1), to the extent the Company or such Restricted Subsidiary elects, to reinvest
in Additional Assets to be owned by the Company or a Restricted Subsidiary
(including by means of an Investment in Additional Assets by a Restricted
Subsidiary with Net Available Cash) within 365 days from the later of such Asset
Disposition or the receipt of such Net Available Cash, or, if such reinvestment
in Additional Assets is a project authorized by the Governing Board that will
take longer than 365 days to complete, the period of time necessary to complete
such project; (3) third, to the extent of the balance of such Net Available Cash
-----
after application in accordance with clauses (1) and (2), to make an Offer (as
defined in Section 4.06(b) below) to purchase the Securities pursuant to and
subject to the conditions of Section 4.06(b); provided, however, that if the
-------- -------
Company elects (or is required by the terms of any other Senior Subordinated
Indebtedness), such Offer may be made ratably to purchase the Securities and
other Senior Subordinated Indebtedness of the Company, and (4) fourth, to the
extent of the balance of such Net Available Cash after application in accordance
with clauses (1), (2) and (3), for any general corporate purpose permitted by
the terms of this Indenture; provided, however, that in connection with any
-------- -------
prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance
or other acquisition for value of Indebtedness pursuant to clause (1), (2) or
(4) above, the Company or such Restricted Subsidiary shall retire such
Indebtedness and shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid,
repaid, purchased, repurchased, redeemed, retired, defeased or otherwise
acquired for value; provided, further, however, that any application of proceeds
-------- ------- -------
made pursuant to clause (1), (2), (3) or (4) above by any direct or indirect
owners of the Company shall be excluded from the calculation of the amount of
Restricted Payments as described in clause 4.04(a)(iv)(3)(B) above.
Notwithstanding the foregoing provisions of this Section 4.06, the Company and
the Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.06(a) except to the extent
50
that the aggregate Net Available Cash from all Asset Dispositions that is not
applied in accordance with this Section 4.06(a) exceeds $10 million.
For the purposes of this Section 4.06, the following are deemed to be
cash: (A) the assumption of Indebtedness of the Company (other than in respect
of Disqualified Stock of the Company) or any Restricted Subsidiary (other than
obligations in respect of Disqualified Stock and Preferred Stock of a Restricted
Subsidiary that is a Subsidiary Guarantor) and the release of the Company or
such Restricted Subsidiary from all liability on such Indebtedness in connection
with such Asset Disposition and (B) securities received by the Company or any
Restricted Subsidiary from the transferee that are within 60 days converted by
the Company or such Restricted Subsidiary into cash.
Notwithstanding the immediately preceding paragraphs of this Section
4.06, the Company and its Restricted Subsidiaries will be permitted to
consummate an Asset Disposition without complying with such paragraphs to the
extent that (1) at least 75% of the consideration for such Asset Disposition
constitutes Additional Assets; and (2) such Asset Disposition is for at least
fair value, as determined in good faith by the Governing Board; provided that
-------- ----
the Net Available Cash from any consideration not constituting Additional Assets
received by the Company or any of its Restricted Subsidiaries in connection with
any Asset Disposition permitted to be consummated under this paragraph shall be
subject to the provisions of the two preceding paragraphs; provided, that at the
-------- ----
time of entering into such transaction or immediately after giving effect
thereto, no Default or Event of Default shall have occurred or be continuing or
would occur as a consequence thereof.
(b) In the event of an Asset Disposition that requires the purchase of
Securities pursuant to Section 4.06(a)(iii)(3), the Company and Sub Co-Issuer
shall be required (i) to purchase Securities tendered pursuant to an offer by
the Company and Sub Co-Issuer for the Securities (the "Offer") at a purchase
price of 100% of their principal amount plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture and (ii) to purchase other Senior
Subordinated Indebtedness of the Company and Sub Co-Issuer on the terms and to
the extent contemplated thereby (provided that in no event shall the Company and
Sub Co-Issuer offer to purchase such other Senior Subordinated Indebtedness of
the Company and Sub Co-Issuer at a purchase price in excess of 100% of its
principal amount (without premium), plus accrued and unpaid interest thereon).
If the aggregate purchase price of Securities (and other Senior Subordinated
Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of the Securities (and other Senior Subordinated
Indebtedness), the Company and Sub Co-Issuer shall apply the remaining Net
Available Cash in accordance with Section 4.06(a)(iii)(4). The Company and Sub
Co-Issuer shall not be required to make an Offer for Securities (and other
Senior
51
Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available
Cash available therefor (after application of the proceeds as provided in
clauses (1) and (2) of Section 4.06(a)(iii)) is less than $10 million for any
particular Asset Disposition (which lesser amount shall be carried forward for
purposes of determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Company
and Sub Co-Issuer become obligated to make an Offer, the Company and Sub
Co-Issuer shall be obligated to deliver to the Trustee and send, by first-class
mail to each Holder, a written notice stating that the Holder may elect to have
his Securities purchased by the Company and Sub Co-Issuer either in whole or in
part (subject to prorating as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal amount, at the
applicable purchase price. The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such notice (the "Purchase
Date") and shall contain such information concerning the business of the Company
which the Company and Sub Co-Issuer in good faith believe will enable such
Holders to make an informed decision (which at a minimum shall include (1) the
most recently filed Annual Report on Form 10-K, if any, (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q, if any, and any Current Report on Form 8-K,
if any, of the Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Dispositions otherwise described in the
offering materials (or corresponding successor reports), (2) a description of
material developments, if any, in the Company's business subsequent to the date
of the latest of such reports, and (3) if material, appropriate pro forma
financial information) and all instructions and materials necessary to tender
Securities pursuant to the Offer, together with the address referred to in
clause (iii).
(ii) The Company and Sub Co-Issuer shall deliver to the Trustee an
Officers' Certificate as to (1) the amount of the Offer (the "Offer Amount"),
(2) the allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (3) the compliance of such
allocation with the provisions of Section 4.06(a). On the Purchase Date, the
Company and Sub Co-Issuer shall also irrevocably deposit with the Trustee or
with a paying agent (or, if the Company and Sub Co-Issuer are acting as their
own paying agent, segregate and hold in trust) an amount equal to the Offer
Amount. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date
of purchase, mail or deliver payment to each tendering Holder in the amount of
the purchase price. In the event that the Offer Amount delivered by the Company
and Sub Co-Issuer to the Trustee is greater than the purchase price of the
Securities (and other Senior Subordinated Indebtedness) tendered, the Trustee
shall deliver the excess to the Company and Sub Co-Issuer immediately after the
expiration of the period for which the Offer remains open (the "Offer Period")
for application in accordance with this Section 4.06. Upon the expiration of the
Offer Period, the Company and Sub Co-Issuer
52
shall deliver to the Trustee for cancelation the Securities or portions thereof
that have been properly tendered to and are to be accepted by the Company and
Sub Co-Issuer.
(iii) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company and Sub Co-Issuer at the address specified in the notice at least three
Business Days prior to the Purchase Date. Holders shall be entitled to withdraw
their election if the Trustee, the Company or Sub Co-Issuer receives not later
than one Business Day prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered by the Holder for purchase and a
statement that such Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the aggregate principal
amount of Securities and any other Senior Subordinated Indebtedness included in
the Offer surrendered by holders thereof exceeds the Offer Amount, the Company
and Sub Co-Issuer shall select the Securities and other Senior Subordinated
Indebtedness to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company and Sub Co-Issuer so that only Securities
and other Senior Subordinated Indebtedness in denominations of $1,000, or
integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(iv) At the time the Company and Sub Co-Issuer deliver Securities to
the Trustee which are to be accepted for purchase, the Company and Sub Co-Issuer
shall also deliver an Officers' Certificate stating that such Securities are to
be accepted by the Company and Sub Co-Issuer pursuant to and in accordance with
the terms of this Section. A Security shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails or
delivers payment therefor to the surrendering Holder.
(v) The Company and Sub Co-Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of
Securities pursuant to this Section 4.06. To the extent that the provisions of
any securities laws or regulations conflict with provisions of this Section
4.06, the Company and Sub Co-Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
------------------------------------------
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including, the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such
53
Affiliate Transaction is on terms (i) that are fair and reasonable to, and in
the best interest of, the Company or such Restricted Subsidiary, as the case may
be, as determined in good faith by the Governing Board, (ii) that, in the event
that such Affiliate Transaction involves an aggregate amount in excess of $5
million, (1) are set forth in writing and (2) have been approved by a majority
of the members of the Governing Board and (iii) that, in the event that such
Affiliate Transaction involves an amount in excess of $20 million, have been
determined by a nationally recognized appraisal, accounting or investment
banking firm to be fair, from a financial point of view, to the Company or such
Restricted Subsidiary, as the case may be.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.04, or any
Permitted Investment described in clauses (e) and (f) thereof, (ii) any issuance
of securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock or
equity options and stock or equity ownership plans approved by the Governing
Board, (iii) the grant of stock or equity options or similar rights to employees
and directors or members of the Governing Board of the Company or its
Subsidiaries pursuant to plans and/or contracts approved by the Governing Board,
(iv) loans or advances to officers, directors or employees of the Company or its
Subsidiaries in the ordinary course of business in accordance with past
practices of the Company, but in any event not to exceed $5 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees and
compensation to, and the provision of indemnity on behalf of, directors,
officers, employees, consultants or members of the Governing Board of the
Company or its Subsidiaries as determined in good faith by the Company's
Governing Board, (vi) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, (vii) any transaction or any
payment pursuant to or contemplated by the provisions of any Transaction
Document as such provisions are described in or referred to in the offering
memorandum, and as the same may be amended or replaced by a Governing Board
Approval, (viii) transactions effected as part of a Qualified Receivables
Transaction, (ix) the granting or performance of registration rights under a
written registration rights agreement approved by the Governing Board and
containing customary terms, taken as a whole, (x) transactions with Persons
solely in their capacity as holders of Indebtedness or Capital Stock of the
Company or any of its Restricted Subsidiaries, where such Persons are treated no
more favorably than holders of Indebtedness or Capital Stock of the Company or
such Restricted Subsidiary generally, (xi) sales or purchases of products or
services rendered in the ordinary course of business, (xii) sales of Capital
Stock (other than Disqualified Stock or Preferred Stock of a Subsidiary that is
not a Subsidiary Guarantor) for any consideration or any capital contribution or
(xiii) any agreement to do any of the foregoing.
SECTION 4.08. Change of Control. (a) Upon a Change of Control, each
-----------------
Holder shall have the right to require that the Company and Sub Co-Issuer
purchase
54
all or any part of such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.08(b); provided, however,
-------- -------
that notwithstanding the occurrence of a Change of Control, the Company shall
not be obligated to purchase the Securities pursuant to this Section 4.08 in the
event that it has exercised its right to redeem all the Securities under
paragraph 5(a) of the Securities. In the event that at the time of such Change
of Control the terms of the Bank Indebtedness restrict or prohibit the
repurchase of Securities pursuant to this Section 4.08, then prior to the
mailing of the notice to Holders provided for in Section 4.08(b) below but in
any event within 30 days following the date the Company obtains actual knowledge
of any Change of Control, the Company shall (i) repay in full all Bank
Indebtedness and all other Senior Indebtedness the terms of which require
repayment upon a Change of Control or, if doing so will allow the purchase of
the Securities, offer to repay in full all Bank Indebtedness and such other
Senior Indebtedness and repay the Bank Indebtedness and such other Senior
Indebtedness of each lender who has accepted such offer or (ii) obtain the
requisite consent under the agreements governing the Bank Indebtedness and all
other Senior Indebtedness the terms of which require repayment upon a Change of
Control to permit the repurchase of the Securities as provided for in Section
4.08(b).
(b) Within 30 days following the date the Company obtains actual
knowledge of any Change of Control, the Company and Sub Co-Issuer shall mail a
notice to each Holder with a copy to the Trustee (the "Change of Control Offer")
stating:
(i) that a Change of Control has occurred and that such Holder has
the right to require the Company and Sub Co-Issuer to purchase all or a
portion of such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest to
the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest payment
date);
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days nor
later than 90 days from the date such notice is mailed); and
(iv) the instructions determined by the Company and Sub Co-Issuer,
consistent with this Section 4.08, that a Holder must follow in order to
have its Securities purchased.
55
(c) Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the Company
and Sub Co-Issuer at the address specified in the notice at least three Business
Days prior to the purchase date. Holders shall be entitled to withdraw their
election if the Trustee, the Company or Sub Co-Issuer receives not later than
one Business Day prior to the purchase date a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased. Holders whose Securities are purchased only in part shall be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(d) On the purchase date, all Securities purchased by the Company and
Sub Co-Issuer under this Section shall be delivered to the Trustee for
cancelation, and the Company and Sub Co-Issuer shall pay the purchase price plus
accrued and unpaid interest to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Company and Sub Co-Issuer shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in Section 4.08(b) applicable to a Change of Control
Offer made by the Company and Sub Co-Issuer and purchases all Securities validly
tendered and not withdrawn under such Change of Control Offer.
(f) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.08. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(g) Prior to any Change of Control Offer, the Company shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Company to make such offer have been
complied with.
(h) The Company and Sub Co-Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of
Securities pursuant to this Section 4.08. To the extent that the provisions of
any securities laws or regulations conflict with provisions of this Section, the
Company and Sub Co-Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.08 by virtue thereof.
56
SECTION 4.09. Compliance Certificate. The Company and Sub Co-Issuer
----------------------
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company an Officers' Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company and Sub
Co-Issuer they would normally have knowledge of any Default and whether or not
the signers know of any Default that occurred during such period. If they do,
the certificate shall describe the Default, its status and what action the
Company and Sub Co-Issuer are taking or propose to take with respect thereto.
The Company and Sub Co-Issuer also shall comply with Section 314(a)(4) of the
TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Company and Sub Co-Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 4.11. Future Subsidiary Guarantors. The Company shall cause
----------------------------
each existing and future Domestic Subsidiary of the Company (other than an
Unrestricted Subsidiary) to become a Subsidiary Guarantor, and, if applicable,
execute and deliver to the Trustee a supplemental indenture substantially in the
form of Exhibit C pursuant to which such Domestic Subsidiary will Guarantee
payment of the Securities. Each Subsidiary Guarantee shall be limited to an
amount not to exceed the maximum amount that can be Guaranteed by that
Subsidiary Guarantor, without rendering the Subsidiary Guarantee, as it relates
to such Subsidiary Guarantor voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
The Subsidiary Guarantee of a Subsidiary Guarantor will be released:
(1) in connection with any consolidation or merger if the Subsidiary
Guarantor or surviving Person shall cease to be a Subsidiary of the
Company, if the consolidation or merger complies with the covenants
contained in this Article 4;
(2) in connection with any sale or other disposition of all or
substantially all of the assets of that Subsidiary Guarantor (including by
way of merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) a Subsidiary of the Company, if
the sale or other disposition complies with the covenants contained in this
Article 4;
(3) if the Subsidiary Guarantor is designated to be a Unrestricted
Subsidiary in accordance with this Indenture;
57
(4) in connection with any sale of all of the Capital Stock of a
Subsidiary Guarantor to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, if the sale
complies with this Indenture;
(5) upon the release of such Subsidiary Guarantor from its liability
in respect of the Bank Indebtedness of the Company and all other Subsidiary
Guarantors; and
(6) upon the legal defeasance of the Securities as described under
Article 8.
SECTION 4.12. Limitation on the Sale or Issuance of Preferred Stock of
--------------------------------------------------------
Restricted Subsidiaries. The Company will not permit any Restricted Subsidiary
-----------------------
to issue any shares of its Preferred Stock except to the Company or a Restricted
Subsidiary.
SECTION 4.13. Limitation on Ability of Company to Release Funds From
------------------------------------------------------
Escrow. The Company and Sub Co-Issuer agree that (i) the terms of the Escrow
------
Agreement shall exclusively control the conditions under which and procedures
pursuant to which Escrow Property (as defined in the Escrow Agreement) can be
released and (ii) they will not attempt to release funds from escrow except in
accordance with the Escrow Agreement.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company and Sub Co-Issuer May Merge or Transfer
----------------------------------------------------
Assets. (a) The Company and Sub Co-Issuer each shall not consolidate with or
------
merge with or into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company or Sub Co-Issuer) shall
expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company or Sub Co-Issuer under the Securities and this
Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or
any
58
Restricted Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Restricted Subsidiary at the time
of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Successor Company would be able to Incur an additional
$1.00 of Indebtedness pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or Sub Co-Issuer, as the case
may be, under this Indenture.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless: (i) the resulting,
surviving or transferee Person (the "Successor Guarantor") will be a corporation
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such Person (if not such Subsidiary
Guarantor) shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee; and
(ii) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Guarantor or any
Restricted Subsidiary as a result of such transaction as having been Incurred by
the Successor Guarantor or such Restricted Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing.
(c) Notwithstanding the foregoing, (i) any Restricted Subsidiary
(other than Sub Co-Issuer, but including any Subsidiary Guarantor) may
consolidate with, merge into or transfer all or substantially all of its assets
to the Company, Sub Co-Issuer or any Subsidiary Guarantor, (ii) the Company or
any Subsidiary Guarantor may merge with (x) an Affiliate incorporated solely for
the purpose of reincorporating the Company in another jurisdiction or (y) a
Restricted Subsidiary (including a Subsidiary Guarantor) so long as all assets
of the Company and the Restricted Subsidiary immediately prior to such
transaction are owned by such Restricted Subsidiary and its Restricted
Subsidiaries immediately after the consummation thereof; and (iii) any
Subsidiary Guarantor may consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its assets so long as the
transactions comply with the release provisions set forth in clause (1) or (2)
of the second paragraph of Section 4.11.
59
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
-----------------
(a) the Company or Sub Co-Issuer defaults in any payment of interest
on any Security when the same becomes due and payable and such default continues
for a period of 30 days;
(b) the Company or Sub Co-Issuer defaults in the payment of the
principal of any Security when the same becomes due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration of
acceleration or otherwise, whether or not such payment shall be prohibited by
Article 10 or (ii) fail to redeem or purchase Securities when required pursuant
to this Indenture or the Securities, whether or not such redemption or purchase
shall be prohibited by Article 10 or Article 12;
(c) the Company or Sub Co-Issuer fails to comply with Article 4 or
defaults in the observance or performance of any other covenant or agreement
contained in this Indenture (other than those referred to in (a) or (b) above)
and such failure continues for 30 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from the
Trustee or Holders of at least 25% of the principal amount of the outstanding
Securities;
(d) the Company or Sub Co-Issuer fails to pay at final stated maturity
(giving effect to any applicable grace periods and any extension thereof) the
principal amount of any Indebtedness of the Company or any Restricted Subsidiary
(other than a Receivables Entity) of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 20 days of receipt by the Company
or such Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
final maturity or which has been accelerated (in each case with respect to which
the 20-day period described above has elapsed), aggregates $20 million or more
at any time;
(e) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
60
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that is for relief against the Company or any
Significant Subsidiary in an involuntary case, and which
(i) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(ii) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
and such order or decree remains unstayed and in effect for 60 days;
(g) any judgment or decree for the payment of money in excess of $20.0
million or its foreign currency equivalent against the Company, Sub
Co-Issuer or any Significant Subsidiary and either (i) an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
or (ii) there is a period of 60 days following the entry of such judgment
or decree during which such judgment or decree is not discharged, waived or
the execution thereof stayed; or
(h) any Subsidiary Guarantor fails to comply with its obligations
under any Subsidiary Guarantee and such failure continues for 45 days after
the notice required herein is given to such Subsidiary Guarantor.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
------------------
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
61
A Default under clause (c) or (d) above 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 or Sub
Co-Issuer, as the case may be, and the Trustee of the Default and the Company,
Sub Co-Issuer or the relevant Subsidiary Guarantor, as applicable, does not cure
such Default within the time specified after receipt of such notice. Such notice
must specify the Default, demand that it be remedied and state that such notice
is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company and
Sub Co-Issuer is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 6.01(e) or (f) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company and the
Trustee, or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(e) or (f) with respect to the
Company or Sub Co-Issuer occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the outstanding Securities by
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and
--------------
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
62
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority
-----------------------
in principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Security, (b) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
the terms of this Indenture or (c) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
-------------------
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
-------- -------
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the
-------------------
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or indemnity;
and
(v) the Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction inconsistent
with the request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
63
SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
--------------------------
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company and Sub Co-Issuer or any other obligor on the Securities for the whole
amount then due and owing (together with interest on overdue principal and (to
the extent lawful) on any unpaid interest at the rate provided for in the
Securities) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
--------------------------------
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expense, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company, Sub Co-Issuer, any Subsidiary or Subsidiary Guarantor,
their creditors or their property, shall be entitled and empowered to
participate as a member, voting or otherwise, of any official committee of
creditors appointed in such matter and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
----------
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company and Sub
Co-Issuer to the extent required by Article 10 and to holders of Senior
Indebtedness of the Subsidiary Guarantors to the extent required by Article
12;
THIRD: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
64
FOURTH: to the Company and Sub Co-Issuer.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company and Sub Co-Issuer a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
---------------------
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
--------------------------------
Company, Sub Co-Issuer nor any Subsidiary Guarantor (to the extent it may
lawfully do so) shall 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
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company, Sub Co-Issuer
and each Subsidiary Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
-----------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
65
(i) the Trustee need perform such duties and only such
duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary contained herein,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds to believe that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to this Section 7.01.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company and
Sub Co-Issuer.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
66
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
-----------------
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
-------- -------
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(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, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, 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 and Sub Co-Issuer, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company, Sub Co-Issuer or their respective
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent or Registrar may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
67
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Company's or Sub Co-Issuer's use of the proceeds from the
Securities, and it shall not be responsible for any statement of the Company,
Sub Co-Issuer or any Subsidiary Guarantor in this Indenture or in any document
issued in connection with the sale of the Securities or in the Securities other
than the Trustee's certificate of authentication. The Trustee shall not be
charged with knowledge of any Default or Event of Default under Sections
6.01(c), (d), (g) or (h) or of the identity of any Significant Subsidiary unless
either (a) a Trust Officer shall have actual knowledge thereof or (b) the
Trustee shall have received notice thereof in accordance with Section 13.02
hereof from the Company, Sub Co-Issuer, any Subsidiary Guarantor or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
------------------
continuing and if it is known to the Trustee, or if the Trustee receives actual
notice of the Default, the Trustee shall mail to each Holder notice of the
Default within the earlier of 90 days after it occurs or 60 days after it is
known to a Trust Officer. Except in the case of a Default in payment of
principal of or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable but not later than 60 days after each August 15 beginning with the
August 15 following the date of this Indenture, and in any event prior to
September 15 in each year, the Trustee shall mail to each Holder a brief report
dated as of such September 15 that complies with Section 313(a) of the TIA if
and to the extent required thereby. The Trustee shall also comply with Section
313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and Sub Co-Issuer and shall be filed with the SEC and
each stock exchange (if any) on which the Securities are listed. The Company and
Sub Co-Issuer agree to notify promptly the Trustee whenever the Securities
become listed on any stock exchange and of any delisting thereof and the Trustee
shall comply with TIA Section 313(d).
SECTION 7.07. Compensation and Indemnity. The Company shall pay
--------------------------
to the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants
68
and experts. The Company, Sub Co-Issuer and each Subsidiary Guarantor, jointly
and severally shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by or in connection with
the acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expense of enforcing this Indenture against
the Company and the Sub Co-Issuer (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, Sub Co-Issuer, any
Holder or any other person) or liability in connection with the exercise or
performance of any of its rights, powers or duties hereunder. The Trustee shall
notify the Company and Sub Co-Issuer of any claim for which it may seek
indemnity promptly upon obtaining actual knowledge thereof; provided, however,
-------- -------
that any failure so to notify the Company and Sub Co-Issuer shall not relieve
the Company, Sub Co-Issuer or any Subsidiary Guarantor of its indemnity
obligations hereunder. The Company and Sub Co-Issuer may, subject to the
approval of the Trustee, defend the claim and the Trustee shall provide
reasonable cooperation at the Company's and Sub Co-Issuer's expense in the
defense, except for such actions to the extent caused by negligence, bad faith
or wilful misconduct on its part. Such indemnified party may have separate
counsel and the Company, Sub Co-Issuer and the Subsidiary Guarantors, as
applicable, shall pay the fees and expenses of such counsel; provided, however,
-------- -------
that the Company and Sub Co-Issuer shall not be required to pay such fees and
expenses if it assumes the Trustee's defense and, in such indemnified parties'
reasonable judgment, there is no conflict of interest between the Company, Sub
Co-Issuer and the Subsidiary Guarantors, as applicable, and such parties in
connection with such defense. Neither the Company, Sub Co-Issuer nor any
Subsidiary Guarantor need pay for any written settlement without its written
consent, which consent will not be unreasonably delayed, conditioned or
withheld. The Company and Sub Co-Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own wilful misconduct, negligence or bad faith.
To secure the Company's, the Sub Co-Issuer's and any Subsidiary
Guarantor's payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest on particular Securities.
The Company's and Sub Co-Issuer's payment obligations pursuant to
this Section 7.07 shall survive the satisfaction or discharge of this Indenture,
any rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee. Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(e) or (f) with
respect to the Company and Sub Co-Issuer, the expenses are intended to
constitute expenses of administration under the Bankruptcy Law.
69
SECTION 7.08. Replacement of Trustee. (a) The Trustee may resign
----------------------
at any time by so notifying the Company and Sub Co-Issuer. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company and/or
Sub Co-Issuer may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company and/or
Sub Co-Issuer or by the Holders of a majority in principal amount of the
Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company and Sub Co-Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company and Sub Co-Issuer.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless
the Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Security for at least six months
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
70
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section 7.08, the Company's and Sub Co-Issuer's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
---------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
-----------------------------
all times satisfy the requirements of Section 310(a)(1), 310(a)(2) and 310(a)(3)
of the TIA. The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Section 310(b) of the TIA, subject to
its right to apply for a stay of its duty to resign under the penultimate
paragraph of Section 310(b) of the TIA; provided, however, that there shall be
-------- -------
excluded from the operation of Section 310(b)(1) of the TIA any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company and Sub Co-Issuer are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
71
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance.
------------------------------------------------
(a) When (i) all outstanding Securities (other than Securities replaced or paid
pursuant to Section 2.08) have been canceled or delivered to the Trustee for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof, and the Company or Sub Co-Issuer irrevocably
deposits with the Trustee funds in an amount sufficient or U.S. Government
Obligations, the principal of and interest on which will be sufficient, or a
combination thereof sufficient, in the written opinion of a nationally
recognized firm of independent public accountants delivered to the Trustee
(which delivery shall only be required if U.S. Government Obligations have been
so deposited), to pay the principal of and interest on the outstanding
Securities when due at maturity or upon redemption of, including interest
thereon to maturity or such redemption date (other than Securities replaced or
paid pursuant to Section 2.08), and if in either case the Company or Sub
Co-Issuer pays all other sums payable hereunder by the Company or Sub Co-Issuer,
then this Indenture shall, subject to Section 8.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company and Sub Co-Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Company
and Sub Co-Issuer.
(b) Subject to Sections 8.01(c) and 8.02, the Company or Sub
Co-Issuer at any time may terminate (i) all of its obligations under the
Securities and this Indenture ("legal defeasance option") or (ii) its
obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12
and 4.13 and the operation of Section 5.01(a)(iii), 5.01(a)(iv), 6.01(c),
6.01(e) (with respect to Significant Subsidiaries of the Company only), 6.01(f)
(with respect to Significant Subsidiaries of the Company only) and 6.01(g)
("covenant defeasance option"). The Company and Sub Co-Issuer may exercise their
legal defeasance option notwithstanding their prior exercise of their covenant
defeasance option. In the event that the Company and Sub Co-Issuer terminate all
of their obligations under the Securities and this Indenture by exercising their
legal defeasance option, the obligations under the Subsidiary Guarantees shall
each be terminated simultaneously with the termination of such obligations.
If the Company and Sub Co-Issuer exercise their legal defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default. If the Company and Sub Co-Issuer exercise their covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default specified in Section 6.01(c), 6.01(e) (with respect to Significant
Subsidiaries only), 6.01(f) (with respect to Significant Subsidiaries only) or
6.01(g) or because of the failure of the Company and Sub Co-Issuer to comply
with clauses (iii) and (iv) of Section 5.01(a).
72
Upon satisfaction of the conditions set forth herein and upon
request of the Company and Sub Co-Issuer, the Trustee shall acknowledge in
writing the discharge of those obligations that the Company and Sub Co-Issuer
terminate.
(c) Notwithstanding clauses (a) and (b) above, the Company's
and Sub Co-Issuer's obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09,
7.07, 7.08 and in this Article 8 shall survive until the Securities have been
paid in full. Thereafter, the Company's and Sub Co-Issuer's obligations in
Sections 7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. Conditions to Defeasance. (a) The Company and Sub
------------------------
Co-Issuer may exercise their legal defeasance option or their covenant
defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the principal
of and interest on which will be sufficient, or a combination thereof
sufficient, to pay the principal of, and premium (if any), interest on the
Securities when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption date;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal, premium, if any,
interest when due on all the Securities to maturity or redemption, as the
case may be;
(iii) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(e) or (f) with respect
to the Company or Sub Co-Issuer occurs which is continuing at the end of
the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company or Sub Co-Issuer and is not prohibited by
Article 10;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (1)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (2) since the date of this Indenture there has
been a change in the
73
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and 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 deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and 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 deposit and defeasance had
not occurred; and
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as contemplated
by this Article 8 have been complied with.
(b) Before or after a deposit, the Company and Sub Co-Issuer may
make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold
--------------------------
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10 or 12.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
--------------------
Agent shall promptly turn over to the Company and Sub Co-Issuer upon request any
money or U.S. Government Obligations held by it as provided in this Article
which, in the written opinion of nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company and Sub Co-Issuer upon written request
any money held by them for the payment of principal or interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company and
74
Sub Co-Issuer for payment as general creditors, and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The Company
------------------------------------
and Sub Co-Issuer shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 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 Sub Co-Issuer's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article 8; provided,
--------
however, that, if the Company or Sub Co-Issuer has made any payment of principal
-------
of or interest on, any Securities because of the reinstatement of its
obligations, the Company and Sub Co-Issuer shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
----------
SECTION 9.01. Without Consent of Holders. (a) The Company, Sub
--------------------------
Co-Issuer, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Securities without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
-------- -------
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness of the
75
Company or a Subsidiary Guarantor (or Representatives thereof) under
Article 10 or Article 12, respectively;
(v) to add additional Guarantees with respect to the
Securities or to secure the Securities;
(vi) to add to the covenants of the Company and/or Sub
Co-Issuer for the benefit of the Holders or to surrender any right or
power herein conferred upon the Company or Sub Co-Issuer;
(vii) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture under
the TIA;
(viii) to make any change that does not adversely affect the
rights of any Holder, subject to the provisions of this Indenture; or
(ix) to provide for the issuance of the Exchange Securities or
Additional Securities, which shall have terms substantially identical in
all material respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Initial Securities, as a single issue of securities.
(b) An amendment under this Section 9.01 may not make any
change that adversely affects the rights under Article 10 or Article 12 of any
holder of Senior Indebtedness of the Company or a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Company, Sub
-----------------------
Co-Issuer, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Securities without notice to any Holder but with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Securities). However, without the consent of each Holder
affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must
consent to an amendment;
76
(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(v) make any Security payable in money other than that stated
in the Security;
(vi) make any change in Article 10 or Article 12 that
adversely affects the rights of any Holder under Article 10 or Article 12;
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(viii) modify any Subsidiary Guarantee in any manner adverse to
the Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Indebtedness of the Company or Sub Co-Issuer then outstanding unless the
holders of such Senior Indebtedness (or any group or Representative thereof
authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company and Sub Co-Issuer shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
-----------------------------------
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. (a)
---------------------------------------------
A consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is
77
not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date on
which the Trustee receives an Officers' Certificate from the Company and Sub
Co-Issuer certifying that the requisite number of consents have been received.
After an amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the (i) receipt by the Company, Sub
Co-Issuer or the Trustee of the requisite number of consents, (ii) satisfaction
of conditions to effectiveness as set forth in this Indenture and any indenture
supplemental hereto containing such amendment or waiver and (iii) execution of
such amendment or waiver (or supplemental indenture) by the Company, Sub
Co-Issuer and the Trustee.
(b) The Company and Sub Co-Issuer may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
give their consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
-------------------------------------
amendment changes the terms of a Security, the Trustee or the Company may
require the Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company, Sub Co-Issuer or the
Trustee so determines, the Company and Sub Co-Issuer in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of such amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall sign
--------------------------
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company, Sub Co-Issuer and the
Subsidiary Guarantors enforceable against them in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
78
SECTION 9.07. Payment for Consent. Neither the Company, Sub
-------------------
Co-Issuer nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid to all Holders that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 10
Subordination
-------------
SECTION 10.01. Agreement To Subordinate. The Company and Sub
------------------------
Co-Issuer agree, and each Holder by accepting a Security agrees, that the
Indebtedness evidenced by the Securities is subordinated in right of payment, to
the extent and in the manner provided in this Article 10, to the prior payment
in full of all Senior Indebtedness of the Company and Sub Co-Issuer and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. The Securities shall in all respects rank pari passu with
---- -----
all other Senior Subordinated Indebtedness of the Company and only Indebtedness
of the Company or Sub Co-Issuer that is Senior Indebtedness of the Company shall
rank senior to the Securities in accordance with the provisions set forth
herein. For purposes of this Article 10, the Indebtedness evidenced by the
Securities shall be deemed to include any additional interest charges payable
pursuant to the provisions set forth in the Securities and the Registration
Agreement. All provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
------------------------------------
payment or distribution of the assets of the Company or Sub Co-Issuer to their
respective creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or Sub Co-Issuer or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property or Sub Co-Issuer or its property:
(a) holders of Senior Indebtedness of the Company or Sub
Co-Issuer shall be entitled to receive payment in full of such Senior
Indebtedness before Holders shall be entitled to receive any payment of
principal of or interest on the Securities; and
(b) until the Senior Indebtedness is paid in full, any payment or
distribution to which Holders would be entitled but for this Article 10
shall be made to holders of such Senior Indebtedness as their interests may
appear, except that Holders may receive (x) shares of stock or equity
interests and (y) any debt
79
securities that are subordinated to such Senior Indebtedness to at least
the same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness. The Company and
------------------------------
Sub Co-Issuer may not pay the principal of, premium (if any) or interest on the
Securities or make any deposit pursuant to Section 8.01 and may not otherwise
purchase, repurchase, redeem or otherwise acquire or retire for value any
Securities (collectively, "pay the Securities") if (a) interest, premium or
principal in respect of any Designated Senior Indebtedness of the Company is not
paid when due or (b) any other default on such Designated Senior Indebtedness of
the Company occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, (i) the default
has been cured or waived and any such acceleration has been rescinded or (ii)
such Designated Senior Indebtedness has been paid in full; provided, however,
-------- -------
that the Company and Sub Co-Issuer may pay the Securities without regard to the
foregoing if the Company, Sub Co-Issuer and the Trustee receive written notice
approving such payment from the Representative of such Designated Senior
Indebtedness with respect to which either of the events set forth in clause (a)
or (b) of this sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (a) or (b) of the
preceding sentence) with respect to any Designated Senior Indebtedness of the
Company or Sub Co-Issuer pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (a) by written notice to the Trustee
and the Company and Sub Co-Issuer from the Person or Persons who gave such
Blockage Notice, (b) by repayment in full of such Designated Senior Indebtedness
or (c) because the default giving rise to such Blockage Notice (and no other
default) is no longer continuing). Notwithstanding the provisions described in
the immediately preceding sentence (but subject to the provisions contained in
the first sentence of this Section), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have accelerated
the maturity of such Designated Senior Indebtedness, the Company and Sub
Co-Issuer may resume payments on the Securities after the end of such Payment
Blockage Period, including any missed payments. Not more than one Blockage
Notice may be given in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness during such
period; provided, however, that if any Blockage Notice within such 360-day
-------- -------
period is given by or on behalf of any holders of Designated Senior Indebtedness
other than the Bank Indebtedness, the Representative of the Bank Indebtedness
may give another Blockage Notice within such period; provided further, however,
----------------
that in no event may the total number of days during which any Payment
80
Blockage Period or Periods is in effect exceed 179 days in the aggregate during
any 360 consecutive day period. For purposes of this Section, no default or
event of default that existed or was continuing on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If payment
-------------------------------------
of the Securities is accelerated because of an Event of Default, the Company,
Sub Co-Issuer or the Trustee (provided, that the Trustee shall have received
--------
written notice from the Company and Sub Co-Issuer, on which notice the Trustee
shall be entitled to conclusively rely) shall promptly notify the holders of the
Designated Senior Indebtedness of the Company and Sub Co-Issuer (or their
Representative) of the acceleration. If any Designated Senior Indebtedness is
outstanding, the Company and Sub Co-Issuer may not pay the Securities until five
Business Days after such holders or the Representative of such Designated Senior
Indebtedness receive notice of such acceleration and, thereafter, may pay the
Securities only if this Article 10 otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
-----------------------------------
distribution is made to Holders that because of this Article 10 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company or Sub Co-Issuer and pay
it over to them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of the
-----------
Company and Sub Co-Issuer is paid in full and until the Securities are paid in
full, Holders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article 10 to holders of such Senior Indebtedness
which otherwise would have been made to Holders is not, as between the Company,
Sub Co-Issuer and Holders, a payment by the Company and Sub Co-Issuer on such
Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
---------------
relative rights of Holders and holders of Senior Indebtedness of the Company and
Sub Co-Issuer. Nothing in this Indenture shall:
(a) impair, as between the Company, Sub Co-Issuer and Holders,
the obligation of the Company and Sub Co-Issuer, which is absolute and
81
unconditional, to pay principal of and interest on the Securities in
accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior
Indebtedness of the Company or Sub Co-Issuer to receive distributions
otherwise payable to Holders.
SECTION 10.08. Subordination May Not Be Impaired by Company and Sub
----------------------------------------------------
Co-Issuer. No right of any holder of Senior Indebtedness of the Company or Sub
---------
Co-Issuer to enforce the subordination of the Indebtedness evidenced by the
Securities shall be impaired by any act or failure to act by the Company or Sub
Co-Issuer or by their failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent. Notwithstanding
----------------------------------
Section 10.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, Sub Co-Issuer, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Company or Sub
Co-Issuer may give the notice; provided, however, that, if an issue of Senior
-------- -------
Indebtedness of the Company or Sub Co-Issuer has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company or Sub Co-Issuer with the same rights it would have
if it were not Trustee. The Registrar and the Paying Agent may do the same with
like rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness of the Company or Sub
Co-Issuer which may at any time be held by it, to the same extent as any other
holder of such Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 10 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07 or any other Section of this Indenture.
SECTION 10.10. Distribution or Notice to Representative. Whenever a
----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company or Sub Co-Issuer, the distribution may be made and the notice
given to their Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
----------------------------------------------------
Right To Accelerate. The failure to make a payment pursuant to the Securities by
-------------------
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of
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a Default. Nothing in this Article 10 shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Monies Not Subordinated. Notwithstanding anything
-----------------------------
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 8 by the Trustee for the
payment of principal of and interest on the Securities shall not be subordinated
to the prior payment of any Senior Indebtedness of the Company or Sub Co-Issuer
or subject to the restrictions set forth in this Article 10, and none of the
Holders shall be obligated to pay over any such amount to the Company and Sub
Co-Issuer or any holder of Senior Indebtedness of the Company or Sub Co-Issuer
or any other creditor of the Company or Sub Co-Issuer.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
------------------------
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(c) upon the Representatives for the holders of Senior Indebtedness of the
Company or Sub Co-Issuer for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company and Sub Co-Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of the Company or Sub
Co-Issuer to participate in any payment or distribution pursuant to this Article
10, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 10, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each Holder by
-----------------------------------
accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of the
Company or Sub Co-Issuer as provided in this Article 10 and appoints the Trustee
as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
------------
holders
83
of Senior Indebtedness of the Company or Sub Co-Issuer and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to Holders,
the Company, Sub Co-Issuer or any other Person, money or assets to which any
holders of Senior Indebtedness of the Company or Sub Co-Issuer shall be entitled
by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
---------------------------------------------
Subordination Provisions. Each Holder by accepting a Security acknowledges and
------------------------
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company or Sub Co-Issuer, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
such Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE 11
Subsidiary Guarantees
---------------------
SECTION 11.01. Subsidiary Guarantees. (a) All existing and future
---------------------
Domestic Subsidiaries of the Company hereby jointly and severally irrevocably
and unconditionally guarantees, as primary obligors and not merely as sureties,
to each Holder and to the Trustee and its successors and assigns (i) the full
and punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Company and Sub Co-Issuer
under this Indenture (including obligations to the Trustee) and the Securities,
whether for payment of principal of or interest on the Securities and all other
monetary obligations of the Company and Sub Co-Issuer under this Indenture and
the Securities and (ii) the full and punctual performance within applicable
grace periods of all other obligations of the Company and Sub Co-Issuer whether
for fees, expenses, indemnification or otherwise under this Indenture and the
Securities (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations"). Each Subsidiary Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice or further assent from each such Subsidiary Guarantor, and that each such
Subsidiary Guarantor shall remain bound under this Article 11 notwithstanding
any extension or renewal of any Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand of
payment from and protest to the Company and Sub Co-Issuer of any of the
Guaranteed Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any default under the Securities or the
Guaranteed
84
Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be
affected by (i) the failure of any Holder or the Trustee to assert any claim or
demand or to enforce any right or remedy against the Company and Sub Co-Issuer
or any other Person under this Indenture, the Securities or any other agreement
or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Securities or any other agreement; (iv) the release of
any security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Subsidiary Guarantor, except as provided in
Section 11.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may
be entitled to have its obligations hereunder divided among the Subsidiary
Guarantors, such that such Subsidiary Guarantor's obligations would be less than
the full amount claimed. Each Subsidiary Guarantor hereby waives any right to
which it may be entitled to have the assets of the Company and Sub Co-Issuer
first be used and depleted as payment of the Company's, Sub Co-Issuer's or such
Subsidiary Guarantor's obligations hereunder prior to any amounts being claimed
from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor
hereby waives any right to which it may be entitled to require that the Company
and Sub Co-Issuer be sued prior to an action being initiated against such
Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to the
extent and in the manner set forth in Article 12, subordinated and subject in
right of payment to the prior payment in full of the principal of and premium,
if any, and interest on all Senior Indebtedness of the relevant Subsidiary
Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 8.01(b), 11.02 and
11.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
85
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity.
(g) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee
shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the
Company or Sub Co-Issuer or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company and Sub
Co-Issuer to pay the principal of or interest on any Guaranteed Obligation when
and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary obligations of the Company and Sub
Co-Issuer to the Holders and the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may
be accelerated as provided in Article 6 for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 11.01.
86
(j) Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 11.02. Limitation on Liability. (a) Any term or provision of
-----------------------
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor shall
terminate and be of no further force or effect and such Subsidiary Guarantor
shall be deemed to be released from all obligations under this Article 11 upon
(i) the merger or consolidation of such Subsidiary Guarantor with or into any
Person other than the Company, Sub Co-Issuer or a Subsidiary or Affiliate of the
Company where such Subsidiary Guarantor is not the surviving entity of such
consolidation or merger or (ii) the sale by the Company, Sub Co-Issuer or any
Subsidiary of the Company (or any pledgee of the Company) of the Capital Stock
of such Subsidiary Guarantor, where, after such sale, such Subsidiary Guarantor
is no longer a Subsidiary of the Company or Sub Co-Issuer; provided, however,
-------- -------
that each such merger, consolidation or sale (or, in the case of a sale by such
a pledgee, the disposition of the proceeds of such sale) shall comply with
Section 4.06 and Section 5.01(b). At the request of the Company or Sub
Co-Issuer, the Trustee shall execute and deliver an appropriate instrument
evidencing such release (in the form provided by the Company and Sub Co-Issuer).
SECTION 11.03. Successors and Assigns. This Article 11 shall be
----------------------
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the part of
---------
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights,
87
remedies and benefits of the Trustee and the Holders herein expressly specified
are cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article 11 at law, in equity, by statute or
otherwise.
SECTION 11.05. Modification. No modification, amendment or waiver of
------------
any provision of this Article 11, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
----------------------------------------------
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
---------------------
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 11
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
SECTION 11.07. Non-Impairment. The failure to endorse a Subsidiary
--------------
Guarantee on any Security shall not affect or impair the validity thereof.
ARTICLE 12
Subordination of the Subsidiary Guarantees
------------------------------------------
SECTION 12.01. Agreement To Subordinate. Each Subsidiary Guarantor
------------------------
agrees, and each Holder by accepting a Security agrees, that the obligations of
a Subsidiary Guarantor hereunder are subordinated in right of payment, to the
extent and in the manner provided in this Article 12, to the prior payment in
full of all Senior Indebtedness of such Subsidiary Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness of such Subsidiary Guarantor. The obligations hereunder with
respect to a Subsidiary Guarantor shall in all
88
respects rank pari passu with all other Senior Subordinated Indebtedness of such
---- -----
Subsidiary Guarantor and shall rank senior to all existing and future
Subordinated Obligations of such Subsidiary Guarantor; and only Indebtedness of
such Subsidiary Guarantor that is Senior Indebtedness of such Subsidiary
Guarantor shall rank senior to the obligations of such Subsidiary Guarantor in
accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
------------------------------------
or distribution of the assets of a Subsidiary Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor and its
properties:
(a) holders of Senior Indebtedness of such Subsidiary Guarantor shall
be entitled to receive payment in full of such Senior Indebtedness before
Holders shall be entitled to receive any payment pursuant to any Guaranteed
Obligations from such Subsidiary Guarantor; and
(b) until the Senior Indebtedness of such Subsidiary Guarantor is paid
in full, any payment or distribution to which Holders would be entitled but
for this Article 12 shall be made to holders of such Senior Indebtedness as
their respective interests may appear, except that Holders may receive
shares of stock and any debt securities that are subordinated to such
Senior Indebtedness to at least the same extent as the Subsidiary
Guarantees.
SECTION 12.03. Default on Designated Senior Indebtedness of a
----------------------------------------------
Subsidiary Guarantor. A Subsidiary Guarantor may not make any payment pursuant
--------------------
to any of the Guaranteed Obligations or repurchase, redeem or otherwise retire
any Securities (collectively, "pay its Guarantee") if (a) any Designated Senior
Indebtedness of such Subsidiary Guarantor is not paid when due or (b) any other
default on Designated Senior Indebtedness of such Subsidiary Guarantor occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (i) the default has been cured
or waived and any such acceleration has been rescinded or (ii) such Designated
Senior Indebtedness has been paid in full; provided, however, that such
-------- -------
Subsidiary Guarantor may pay its Guarantee without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of the holders of such Designated Senior
Indebtedness with respect to which either of the events in clause (a) or (b) of
this sentence has occurred and is continuing. During the continuance of any
default (other than a default described in clause (a) or (b) of the preceding
sentence) with respect to any Designated Senior Indebtedness of a Subsidiary
Guarantor pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable
89
grace periods, such Subsidiary Guarantor may not pay its Guarantee for a period
(a "Guarantee Payment Blockage Period") commencing upon the receipt by the
Trustee (with a copy to such Subsidiary Guarantor and the Company and Sub
Co-Issuer) of written notice (a "Guarantee Blockage Notice") of such default
from the Representative of the holders of the Designated Senior Indebtedness of
such Subsidiary Guarantor specifying an election to effect a Guarantee Payment
Blockage Period and ending 179 days thereafter (or earlier if such Guarantee
Payment Blockage Period is terminated (a) by written notice to the Trustee (with
a copy to such Subsidiary Guarantor and the Company and Sub Co-Issuer) from the
Person or Persons who gave such Guarantee Blockage Notice, (b) because such
Designated Senior Indebtedness has been repaid in full or (c) because the
default giving rise to such Guarantee Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section
12.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness, such Subsidiary Guarantor may resume to paying
its Subsidiary Guarantee after such Guarantee Payment Blockage Period, including
any missed payments. Not more than one Guarantee Blockage Notice may be given
with respect to a Subsidiary Guarantor in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Subsidiary Guarantor during such period; provided, however,
-------- -------
that if any Guarantee Blockage Notice within such 360-day period is given by or
on behalf of any holders of Designated Senior Indebtedness of such Subsidiary
Guarantor other than the Bank Indebtedness, the Representative of the Bank
Indebtedness may give another Guarantee Blockage Notice within such period;
provided further, however, that in no event may the total number of days during
---------------- -------
which any Guarantee Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period. For purposes of
this Section 12.03, no default or event of default that existed or was
continuing on the date of the commencement of any Guarantee Payment Blockage
Period with respect to the Designated Senior Indebtedness initiating such
Guarantee Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Guarantee Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Demand for Payment. If payment of the Securities is
------------------
accelerated because of an Event of Default and a demand for payment is made on a
Subsidiary Guarantor pursuant to Article 11, the Trustee (provided that the
--------
Trustee shall have received written notice from the Company, Sub Co-Issuer or
such Subsidiary Guarantor, on which notice the Trustee shall be entitled to
conclusively rely) shall promptly notify the holders of the Designated Senior
Indebtedness of such Subsidiary Guarantor (or the Representative of such
holders) of such demand. If any Designated Senior Indebtedness of such
Subsidiary Guarantor is outstanding, such Subsidiary
90
Guarantor may not pay its Guarantee until five Business Days after such holders
or the Representative of the holders of the Designated Senior Indebtedness of
such Subsidiary Guarantor receive notice of such demand and, thereafter, may pay
its Guarantee only if this Article 12 otherwise permits payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a payment or
-----------------------------------
distribution is made to Holders that because of this Article 12 should not have
been made to them, the Holders who receive the payment or distribution shall
hold such payment or distribution in trust for holders of the Senior
Indebtedness of the relevant Subsidiary Guarantor and pay it over to them as
their respective interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
-----------
Subsidiary Guarantor is paid in full and until the Securities are paid in full
in cash, Holders shall be subrogated to the rights of holders of Senior
Indebtedness of such Subsidiary Guarantor to receive distributions applicable to
Designated Senior Indebtedness of such Subsidiary Guarantor. A distribution made
under this Article 12 to holders of Senior Indebtedness of such Subsidiary
Guarantor which otherwise would have been made to Holders is not, as between
such Subsidiary Guarantor and Holders, a payment by such Subsidiary Guarantor on
Senior Indebtedness of such Subsidiary Guarantor.
SECTION 12.07. Relative Rights. This Article 12 defines the relative
---------------
rights of Holders and holders of Senior Indebtedness of a Subsidiary Guarantor.
Nothing in this Indenture shall:
(a) impair, as between a Subsidiary Guarantor and Holders, the
obligation of a Subsidiary Guarantor which is absolute and unconditional,
to make payments with respect to the Guaranteed Obligations to the extent
set forth in Article 11; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a default by a Subsidiary Guarantor under its obligations
with respect to the Guaranteed Obligations, subject to the rights of
holders of Senior Indebtedness of such Subsidiary Guarantor to receive
distributions otherwise payable to Holders.
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary
-------------------------------------------------
Guarantor. No right of any holder of Senior Indebtedness of a Subsidiary
---------
Guarantor to enforce the subordination of the obligations of such Subsidiary
Guarantor hereunder shall be impaired by any act or failure to act by such
Subsidiary Guarantor or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
----------------------------------
Section 12.03, the Trustee or the Paying Agent may continue to make payments on
the
91
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 12. A Subsidiary Guarantor, the Registrar or co-registrar, the Paying
Agent, a Representative or a holder of Senior Indebtedness of a Subsidiary
Guarantor may give the notice; provided, however, that if an issue of Senior
-------- -------
Indebtedness of a Subsidiary Guarantor has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of a Subsidiary Guarantor with the same rights it would have if it
were not Trustee. The Registrar and co-registrar and the Paying Agent may do the
same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article 12 with respect to any Senior Indebtedness of a Subsidiary
Guarantor which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness of such Subsidiary Guarantor; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article 12 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07 or any other Section of this Indenture.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness
of a Subsidiary Guarantor, the distribution may be made and the notice given to
their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit
----------------------------------------------------
Right To Accelerate. The failure of a Subsidiary Guarantor to make a payment on
-------------------
any of its obligations by reason of any provision in this Article 12 shall not
be construed as preventing the occurrence of a default by such Subsidiary
Guarantor under such obligations. Nothing in this Article 12 shall have any
effect on the right of the Holders or the Trustee to make a demand for payment
on a Subsidiary Guarantor pursuant to Article 11.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
------------------------
distribution pursuant to this Article 12, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(c) upon the Representatives for the holders of Senior Indebtedness of a
Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness of a Subsidiary Guarantor and other Indebtedness of a Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 12.
In the event
92
that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of a
Subsidiary Guarantor to participate in any payment or distribution pursuant to
this Article 12, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of such Subsidiary Guarantor held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 12, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each Holder by
-----------------------------------
accepting a Security authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination between the Holders and the holders of Senior Indebtedness of
each of the Subsidiary Guarantors as provided in this Article 12 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness of a Subsidiary Guarantor. The Trustee shall not be deemed to owe
--------------------------------------
any fiduciary duty to the holders of Senior Indebtedness of a Subsidiary
Guarantor and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Holders or the relevant Subsidiary Guarantor or any other
Person, money or assets to which any holders of Senior Indebtedness of such
Subsidiary Guarantor shall be entitled by virtue of this Article 12 or
otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
-----------------------------------------------
Subsidiary Guarantor on Subordination Provisions. Each Holder by accepting a
------------------------------------------------
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of a Subsidiary Guarantor, whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
SECTION 12.16. Defeasance. Notwithstanding anything contained herein
----------
to the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 8 by the Trustee for the payment of
principal of, and interest on, the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness of any Subsidiary Guarantor or subject
to the restrictions set forth in this Article 12, and none of the Holders shall
be obligated to pay over any such amount to
93
a Subsidiary Guarantor or any holder of Senior Indebtedness of Subsidiary
Guarantor or any other creditor of a Subsidiary Guarantor.
ARTICLE 13
Miscellaneous
-------------
SECTION 13.01. Trust Indenture Act Controls. If and to the extent that
----------------------------
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such
imposed duties or incorporated provision shall control.
SECTION 13.02. Notices. Any notice or communication shall be in
-------
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Armkel, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention of: Secretary
if to Sub Co-Issuer:
Armkel Finance, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention of: Secretary
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
94
Corporate Trust Administration
The Company, Sub Co-Issuer or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to the Company, Sub Co-Issuer or the
Trustee shall be deemed to have been given or made as of the date so delivered
if personally delivered when receipt acknowledged, if telecopied, and five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee). Notices to the Trustee
shall not be deemed effective or given unless actually received by the Trustee.
Any notice or communication mailed to a Holder shall be mailed, first
class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders. Holders
-------------------------------------------
may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Securities. The Company, Sub
Co-Issuer, the Trustee, the Registrar and anyone else shall have the protection
of Section 312(c) of the TIA.
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company or Sub Co-Issuer to the Trustee
to take or refrain from taking any action under this Indenture, the Company or
Sub Co-Issuer shall furnish to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
95
SECTION 13.05. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(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 such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with; provided,
--------
however, that with respect to matters of fact an opinion of counsel may
-------
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06. When Securities Disregarded. In determining whether the
---------------------------
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company, Sub Co-Issuer,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, Sub
Co-Issuer or any Subsidiary Guarantor shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Subject
to the foregoing, only Securities outstanding at the time shall be considered in
any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee, Paying Agent or Registrar may make reasonable rules for their
functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
--------------
Sunday or other day on which banking institutions are not required by law or
regulation to be open in the State of New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
96
SECTION 13.09. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
-------------
GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE GUARANTEES.
SECTION 13.10. No Recourse Against Others. A director, officer,
--------------------------
employee, stockholder or equity holder, as such, of the Company, Sub Co-Issuer
or any of the Subsidiary Guarantors, shall not have any liability for any
obligations of the Company, Sub Co-Issuer or any of the Subsidiary Guarantors
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11. Successors. All agreements of the Company, Sub
----------
Co-Issuer and each Subsidiary Guarantor in this Indenture and the Securities
shall bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 13.12. Multiple Originals. The parties may sign any number of
------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 13.13. Table of Contents; Headings. The table of contents,
---------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
ARMKEL, LLC,
by_______________________
Name:
Title:
ARMKEL FINANCE, INC.,
by_______________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
by_______________________
Name:
Title:
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
------------------------------------------
ADDITIONAL SECURITIES
---------------------
AND EXCHANGE SECURITIES
-----------------------
1. Definitions
-----------
1.1 Definitions
-----------
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Securities Legend" means the legend set forth under that
caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
"Purchase Agreement" means (a) the Purchase Agreement dated
August 14, 2001 , among the Company, Sub Co-Issuer and the Initial Purchasers
and (b) any other similar Purchase Agreement relating to Additional Securities.
2
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company and
Sub Co-Issuer, pursuant to the Registration Agreement, to certain Holders of
Initial Securities, to issue and deliver to such Holders, in exchange for their
Initial Securities, a like aggregate principal amount of Exchange Securities
registered under the Securities Act.
"Registration Agreement" means (a) the Registration Rights
Agreement dated August 28, 2001, among the Company, Sub Co-Issuer, and the
Initial Purchasers and (b) any other similar Exchange and Registration Rights
Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (a) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Company to
the Trustee, and (b) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and
sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
3
"Shelf Registration Statement" means a registration statement
filed by the Company and Sub Co-Issuer in connection with the offer and sale of
Initial Securities pursuant to the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and
any other Securities that bear or are required to bear the Restricted Securities
Legend.
1.2 Other Definitions
-----------------
Term: Defined in Section:
---- ------------------
"Agent Members" ............................................ 2.1(c)
"IAI Global Security" ...................................... 2.1(b)
"Global Security" .......................................... 2.1(b)
"Regulation S Global Security" ............................. 2.1(b)
"Rule 144A Global Security" ................................ 2.1(b)
2. The Securities
--------------
2.1 Form and Dating
---------------
(a) The Initial Securities issued on the date hereof will be (i)
offered and sold by the Company and Sub Co-Issuer pursuant to the Purchase
Agreement and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A
and (2) Persons other than U.S. Persons (as defined in Regulation S) in reliance
on Regulation S. Such Initial Securities may thereafter be transferred to, among
others, QIBs, purchasers in reliance on Regulation S and, except as set forth
below, IAIs in accordance with Rule 501. Additional Securities offered after the
date hereof may be offered and sold by the Company and Sub Co-Issuer from time
to time pursuant to one or more Purchase Agreements in accordance with
applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
-----------------
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
global Securities (collectively, the "Regulation S Global Security"), in each
case without interest coupons and bearing the Global Securities Legend and
Restricted Securities Legend, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture. One or more global securities in definitive, fully registered
form without interest coupons and bearing the Global Securities Legend and the
Restricted Securities Legend (collectively, the "IAI Global Security") shall
also be issued on the Closing Date with $0 original principal amount, deposited
with the
4
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Company and authenticated by the Trustee
as provided in this Indenture to accommodate transfers of beneficial interests
in the Securities to IAIs subsequent to the initial distribution. Beneficial
ownership interests in the Regulation S Global Security shall not be
exchangeable for interests in the Rule 144A Global Security, the IAI Global
Security or any other Security without a Restricted Securities Legend until the
expiration of the Restricted Period. The Rule 144A Global Security, the IAI
Global Security and the Regulation S Global Security are each referred to herein
as a "Global Security" and are collectively referred to herein as "Global
Securities", provided, that the term "Global Security" when used in Sections
--------
2.1(b)(third paragraph), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include
any Security in global form issued in connection with a Registered Exchange
Offer. The aggregate principal amount of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee and on the schedules thereto as hereinafter
provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only
---------------------
to a Global Security deposited with or on behalf of the Depositary.
The Company and Sub Co-Issuer shall execute and the Trustee
shall, in accordance with this Section 2.1(c) and Section 2.2 and pursuant to an
order of the Company and Sub Co-Issuer signed by two Officers or assistant
secretaries, authenticate and deliver initially one or more Global Securities
that (i) shall be registered in the name of the Depositary for such Global
Security or Global Securities or the nominee of such Depositary and (ii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as Securities Custodian
or under such Global Security, and the Depositary may be treated by the Company,
Sub Co-Issuer, the Trustee and any agent of the Company, Sub Co-Issuer or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, Sub Co-Issuer, the Trustee or any agent of the Company, Sub Co-Issuer
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
(d) Definitive Securities. Except as provided in Section 2.3 or
---------------------
2.4, owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
5
2.2 Authentication. The Trustee shall authenticate and make available
--------------
for delivery upon a written order of the Company and Sub Co-Issuer signed by one
Officer or assistant secretary of the Company and one Officer or assistant
Secretary of the Sub Co-Issuer, (a) Original Securities for original issue on
the date hereof in an aggregate principal amount of $225,000,000 (b) subject to
the terms of this Indenture, Additional Securities in an aggregate principal
amount of up to $225,000,000 and (c) the (i) Exchange Securities for issue only
in a Registered Exchange Offer pursuant to a Registration Agreement and for a
like principal amount of Initial Securities exchanged pursuant thereto. Such
order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed
$450,000,000 except as provided in Sections 2.08 and 2.09 of this Indenture.
Notwithstanding anything to the contrary in this Appendix or otherwise in this
Indenture, any issuance of Additional Securities after the Closing Date shall be
in a principal amount of at least $225,000,000, whether such Additional
Securities are of the same or a different series than the Original Securities.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
--------------------- -----------------------------------
Securities. When Definitive Securities are presented to the Registrar with a
----------
request:
(i) to register the transfer of such Definitive Securities;
or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive Securities
-------- -------
surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company,
Sub Co-Issuer and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse
side of the Initial Security); or
(B) if such Definitive Securities are being
transferred to the Company or Sub Co-Issuer, a certification
to that effect (in the form set forth on the reverse side of
the Initial Security); or
6
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (x) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Company or Sub Co-Issuer so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions
set forth in the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
-------------------------------------------------------
Beneficial Interest in a Global Security. A Definitive Security may not be
----------------------------------------
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company, Sub Co-Issuer and the
Registrar, together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal
to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not
been previously exchanged for certificated securities pursuant to
Section 2.4, the Company and Sub Co-Issuer shall issue and the Trustee
shall authenticate, upon written order of the Company and Sub Co-Issuer
in the form of an Officers' Certificate, a new Global Security in the
appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i) The
------------------------------------------
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through
7
the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the IAI
Global Security to a transferee who takes delivery of such interest through the
Regulation S Global Security, whether before or after the expiration of the
Restricted Period, shall be made only upon receipt by the Trustee of a
certification in the form provided on the reverse of the Initial Securities from
the transferor to the effect that such transfer is being made in accordance with
Regulation S or (if available) Rule 144 under the Securities Act and that, if
such transfer is being made prior to the expiration of the Restricted Period,
the interest transferred shall be held immediately thereafter through Euroclear
or Clearstream. In the case of a transfer of a beneficial interest in either the
Regulation S Global Security or the Rule 144A Global Security for an interest in
the IAI Global Security, the transferee must furnish a signed letter
substantially in the form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial interest in
one Global Security to a beneficial interest in another Global Security, the
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Global Security to which such interest is being
transferred in an amount equal to the principal amount of the interest to be so
transferred, and the Registrar shall reflect on its books and records the date
and a corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4), a Global Security may not be transferred
as a whole except 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.
(iv) In the event that a Global Security is exchanged for Definitive
Securities pursuant to Section 2.4 prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf Registration Statement with
respect to such Securities, such Securities may be exchanged only in accordance
with such procedures as are substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set forth on the reverse
of the Initial Securities intended to
8
ensure that such transfers comply with Rule 144A, Regulation S or such
other applicable exemption from registration under the Securities Act,
as the case may be) and such other procedures as may from time to time
be adopted by the Company and Sub Co-Issuer.
(d) Restrictions on Transfer of Regulation S Global Security. (i)
--------------------------------------------------------
Prior to the expiration of the Restricted Period, interests in the Regulation S
Global Security may only be held through Euroclear or Clearstream. During the
Restricted Period, beneficial ownership interests in the Regulation S Global
Security may only be sold, pledged or transferred through Euroclear or
Clearstream in accordance with the Applicable Procedures and only (1) to the
Company and Sub Co-Issuer, (2) so long as such security is eligible for resale
pursuant to Rule 144A, to a person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI purchasing for
its own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Global Security to a transferee who takes delivery
of such interest through the Rule 144A Global Security or the IAI Global
Security shall be made only in accordance with Applicable Procedures and upon
receipt by the Trustee of a written certification from the transferor of the
beneficial interest in the form provided on the reverse of the Initial Security
to the effect that such transfer is being made to (1) a QIB within the meaning
of Rule 144A in a transaction meeting the requirements of Rule 144A or (2) an
IAI purchasing for its own account, or for the account of such an IAI, in a
minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the Restricted
Period. In the case of a transfer of a beneficial interest in the Regulation S
Global Security for an interest in the IAI Global Security, the transferee must
furnish a signed letter substantially in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
this Indenture.
(e) Legend.
------
(i) Except as permitted by the following paragraphs (ii), (iii)
or (iv), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a
9
legend in substantially the following form (each defined term in the legend
being defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTMENT ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY,
SUB CO-ISSUER OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY AND SUB CO-ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
10
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S, SUB CO-ISSUER'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security if the
Holder certifies in writing to the Registrar that its request for such
exchange was made in reliance on Rule 144 (such certification to be in the
form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Original or Additional Securities
during the period of the effectiveness of a Shelf Registration Statement
with respect to such Original or Additional Securities, as the case may be,
all requirements pertaining to the Restricted Securities Legend on such
Original or Additional Securities shall cease to apply and the requirements
that any such Original or Additional Securities be issued in global form
shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which Holders
of such Original or Additional Securities are offered Exchange Securities
in exchange for their Original or Additional Securities, all requirements
pertaining to Original or Additional Securities that Original or Additional
Securities be issued in global form shall continue to apply, and Exchange
Securities in global form without the Restricted Securities Legend shall be
available to Holders that exchange such Initial Securities in such
Registered Exchange Offer.
11
(v) Upon a sale or transfer after the expiration of the Restricted
Period of any Initial Security acquired pursuant to Regulation S, all
requirements that such Initial Security bear the Restricted Securities
Legend shall cease to apply and the requirements requiring any such Initial
Security be issued in global form shall continue to apply.
(vi) Any Additional Securities sold in a registered offering shall not
be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time as all
--------------------------------------------
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee, or at the direction of the
Trustee, the Registrar or Paying Agent. At any time prior to such cancelation,
if any beneficial interest in a Global Security is exchanged for Definitive
Securities, transferred in exchange for an interest in another Global Security,
redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
------------------------------------------------------
Securities.
----------
(i) To permit registrations of transfers and exchanges, the Company
and Sub Co-Issuer shall execute and the Trustee shall authenticate,
Definitive Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company and Sub Co-Issuer may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchanges pursuant
to Sections 2.07, 3.06, 4.06, 4.08 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of any
Security, the Company, Sub Co-Issuer, the Subsidiary Guarantors, the
Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and (subject to
paragraph 2 of the Securities) interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of
the Company, Sub Co-Issuer, any Subsidiary Guarantor, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the contrary.
12
(iv) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
(h) No Obligation of the Trustee.
----------------------------
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records of
the Depositary or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than the Depositary) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee in the
case of a Global Security). The rights of beneficial owners in any Global
Security shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The Trustee may rely and
shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
2.4 Definitive Securities
---------------------
(a) A Global Security deposited with the Depositary or with the
Trustee as Securities Custodian pursuant to Section 2.1 or issued in connection
with a Registered Exchange Offer shall be transferred to the beneficial owners
thereof in the form of Definitive Securities in an aggregate principal amount
equal to the principal amount of such Global Security, in exchange for such
Global Security, only if such transfer complies with Section 2.3 and (i) the
Depositary notifies the Company and Sub Co-Issuer that it is unwilling or unable
to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a "clearing agency"
13
registered under the Exchange Act, and a successor depositary is not
appointed by the Company within 90 days of such notice or after the Company
or Sub Co-Issuer becomes aware of such cessation, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company and Sub
Co-Issuer, in their sole discretion, notify the Trustee in writing that
they elect to cause the issuance of certificated Securities under this
Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and make available for
delivery, upon such transfer of each portion of such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized denominations.
Any portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY, SUB CO-ISSUER OR THE COMPANY'S AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTMENT ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY, SUB CO-ISSUER OR ANY AFFILIATE OF THE COMPANY WAS THE
2
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY AND SUB CO-ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S, SUB CO-ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. [_] $__________
9 1/2% Senior Subordinated Note due 2009
CUSIP No.[_]
ISIN No. [_]
ARMKEL, LLC, a Delaware limited liability company (the "Company")
and ARMKEL FINANCE, INC., a Delaware corporation ("Sub Co-Issuer"), promise to
pay to Cede & Co., or registered assigns, the principal sum listed on the
Schedule of Increases or Decreases in Global Security attached hereto on August
15, 2009.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
ARMKEL, LLC,
by
_________________________________
Name:
Title:
ARMKEL FINANCE, INC.,
by
_________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
3
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 1/2% Senior Subordinated Note due 2009
1. Interest
--------
(a) Armkel, LLC, a Delaware limited liability company (such
company, and its successors and assigns under the Indenture hereinafter referred
to, being herein called the "Company") and Armkel Finance, Inc., a Delaware
corporation ("Sub Co-Issuer"), promise to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company and Sub
Co-Issuer shall pay interest semiannually on February 15 and August 15 of each
year. Interest on the Securities shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from August 28, 2001 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company and Sub Co-Issuer shall pay interest on overdue principal at
the rate borne by the Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful. All
references in this Security to interest rate shall include any additional
interest.
(b) Additional Interest. The Holder of this Security is entitled to
-------------------
the benefits of a Registration Rights Agreement, dated as of August 28, 2001,
among the Company, Sub Co-Issuer and the Initial Purchasers named therein (the
"Registration Agreement"). Capitalized terms used in this paragraph (b) but not
defined herein have the meanings assigned to them in the Registration Agreement.
If (i) the Exchange Offer Registration Statement under the Registration
Agreement is not filed with the Commission on or prior to 90 days after the
closing date of the Acquisition, (ii) the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, is not declared
effective within 180 days after the closing date of the Acquisition or 180 days
after delivery of the notice and opinion of counsel pursuant to Section
2(b)(iii) of the Registration Agreement or (iii) the Exchange Offer is not
consummated on or prior to 210 days after the closing date of the Acquisition,
the annual interest rate borne by this Security will be increased by 1.0% per
annum until the Exchange Offer is completed or the Shelf Registration Statement,
if required by the Registration Agreement, is declared effective by the
Commission or the Securities become freely tradeable under the Securities Act.
Notwithstanding the foregoing, Holders who exchange Securities for freely
tradeable Securities will not be entitled to additional interest, as set forth
more fully in the Registration Agreement. Certain Holders who could have
exchanged Securities in the Exchange Offer for freely transferable Securities
but did not do so may not be entitled to additional interest, as set forth more
fully in the Registration Agreement. Following the cure of all Registration
Defaults, the annual interest rate borne by the Securities shall return to the
rate before the Registration Default. For purposes of the foregoing, "Transfer
Restricted Securities" means (i) each Initial Security until the date on which
such Initial Security has been exchanged for a freely transferable Exchange
Security
4
in the Registered Exchange Offer, (ii) each Initial Security until the date on
which such Initial Security has been effectively registered under the Securities
Act and disposed of in accordance with a Shelf Registration Statement or (iii)
each Initial Security until the date on which such Initial Security is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act.
2. Method of Payment
-----------------
The Company and Sub Co-Issuer shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders at the
close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company and Sub Co-Issuer shall pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, if any, and interest) shall be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depositary. The Company and Sub
Co-Issuer will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of the
Paying Agent, except that, at the option of the Company and Sub Co-Issuer,
payment of interest may be made by mailing a check to the registered address of
each Holder thereof; provided, however, that payments on the Securities may also
-------- -------
be made, in the case of a Holder of at least $1,000,000 aggregate principal
amount of Securities, by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, The Bank of New York, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The Company and Sub
Co-Issuer may appoint and change any Paying Agent or Registrar without notice to
Holders. The Company, Sub Co-Issuer or any of the Company's domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4. Indenture
---------
The Company and Sub Co-Issuer issued the Securities under an
Indenture dated as of August 28, 2001 (the "Indenture"), among the Company, Sub
Co-Issuer and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
------
5
77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms defined in
the Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all terms and provisions of the
Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior subordinated unsecured obligations of the
Company and Sub Co-Issuer limited to $450,000,000 aggregate principal amount at
any one time outstanding (subject to Sections 2.08 and 2.09 of the Indenture).
This Security is one of the Initial Securities referred to in the Indenture. The
Securities include the Original Securities, the Additional Securities and any
Exchange Securities issued in exchange for Initial Securities pursuant to the
Indenture. The Original Securities, the Additional Securities and any Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company, Sub
Co-Issuer and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates and make asset sales. The
Indenture also imposes limitations on the ability of the Company, Sub Co-Issuer
and each Subsidiary Guarantor to consolidate or merge with or into any other
Person or convey, transfer or lease all or substantially all its property.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company and Sub
Co-Issuer under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Subsidiary Guarantors have
jointly and severally unconditionally guaranteed the Guaranteed Obligations on a
senior subordinated basis pursuant to the terms of the Indenture.
5. Redemption
----------
(a) Optional Redemption. Except as set forth in the following
paragraph, the Securities shall not be redeemable at the option of the Company
prior to August 15, 2005. Thereafter, the Securities shall be redeemable at the
option of the Company, in whole or in part, on not less than 30 nor more than 60
days prior notice, at the following redemption prices (expressed as percentages
of principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
6
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on August 15 of the years set forth below:
Redemption
Year Price
-----------------------------------------------------------------
2005 104.750%
2006 103.167%
2007 101.583%
2008 and thereafter 100.000%
In addition, prior to August 15, 2004, the Company may redeem, on
one or more occasions, up to a maximum of 35% of the original aggregate
principal amount of the Securities (calculated giving effect to any issuance of
Additional Securities) with the Net Cash Proceeds of one or more Equity
Offerings by the Company or Sub Co-Issuer, at a redemption price equal to
109.500% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that after giving effect to any such redemption, at
-------- -------
least 65% of the original aggregate principal amount of the Securities
(calculated giving effect to any issuance of Additional Securities) remains
outstanding. Any such redemption shall be made within 90 days of such Equity
Offering upon not less than 30 nor more than 60 days notice mailed to each
Holder of Securities being redeemed and otherwise in accordance with the
procedures set forth in the Indenture.
(b) Special Redemption. Notwithstanding the foregoing, in the event
that, (i) in the sole judgement of the Company and Sub Co-Issuer, the
Acquisition will not be consummated by December 15, 2001, then the Company and
Sub Co-Issuer may redeem the Securities, in whole but not in part, at their sole
option prior to December 31, 2001, at a redemption price (the "Special
Redemption Price") in cash equal to 101% of the issue price of the Securities
(i.e., 101% X 99.323% = 100.316% of the principal amount at maturity) plus
accrued and unpaid interest to the Special Redemption Date or (ii) the
Acquisition has not be consummated on or prior to December 15, 2001, then the
Company and Sub Co-Issuer will mandatorily redeem all the Securities on December
31, 2001, at the Special Redemption Price.
The "Special Redemption Date" means the earlier of (a) the date
that the Company and Sub Co-Issuer elect to redeem all the Securities if in the
sole judgment of the Company or Sub Co-Issuer, the Acquisition will not be
consummated by December 15, 2001, or (b) December 31, 2001, if the Acquisition
is not consummated by December 15, 2001 (either redemption, a "Special
Redemption").
7
"Acquisition" means the acquisition by the Company of the consumer
products businesses of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc. pursuant to the Acquisition
Agreement and the substantially concurrent sale pursuant to the Product Line
Purchase Agreement.
"Acquisition Agreement" means the Asset Purchase Agreement between
the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Inc., dated as of May 7, 2001, as the same may be
amended, modified or supplemented from time to time.
"Product Line Purchase Agreement" means the Amended and Restated
Product Line Purchase Agreement, dated as July 26, 2001 and effective as of May
7, 2001, by and between the Company and C&D, providing for the Company's sale of
assets relating to the Arrid Extra Dry, Arrid XX and Lady's Choice
antiperspirant and deodorant product lines (in the United States and Canada),
and the assets relating to the ▇▇▇▇▇▇▇-▇▇▇ line of pet products, to C&D and
C&D's assumption of related liabilities, as the same may be amended, modified or
supplemented from time to time.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of an optional redemption pursuant to paragraph 5(a) above
will be mailed by first-class mail at least 30 days but not more than 60 days
before the redemption date and notice of a Special Redemption pursuant to
paragraph 5(b) above will be mailed 10 days prior to the Special Redemption
Date, in each case, to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
----------------------------------------------------------------------------
Asset Dispositions
------------------
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions specified in the Indenture, to cause the
Company and Sub Co-Issuer to repurchase all or any part of the Securities of
such Holder at a purchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued and unpaid interest to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
8
In accordance with Section 4.06 of the Indenture, the Company and
Sub Co-Issuer will be required to offer to purchase Securities upon the
occurrence of certain events.
9. Subordination
-------------
The Securities and Subsidiary Guarantees are subordinated to
Senior Indebtedness, as defined and set forth more fully in the Indenture. To
the extent provided in the Indenture, Senior Indebtedness must be paid before
the Securities and Subsidiary Guarantees may be paid. The Company, Sub Co-Issuer
and each Subsidiary Guarantor agrees, and each Holder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
11. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered Holder
of this Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Company and Sub Co-Issuer upon their written request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look to the Company and Sub Co-Issuer for
payment as general creditors and the Trustee and the Paying Agent shall have no
further liability with respect to such monies.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company and Sub Co-Issuer at
any time may terminate some of or all of their obligations under the Securities
and the Indenture if the
9
Company or Sub Co-Issuer deposits with the Trustee money or U.S. Government
Obligations or a combination thereof for the payment of principal of, and
interest on, the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended without prior notice to any Holder
but with the written consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding and (ii) any default may be
waived with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company, Sub Co-Issuer, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to provide
for uncertificated Securities in addition to or in place of certificated
Securities; (iv) to add Subsidiary Guarantees with respect to the Securities;
(v) to secure the Securities; (vi) to add additional covenants or to surrender
rights and powers conferred on the Company and Sub Co-Issuer; (vii) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any change that
does not adversely affect the rights of any Holder; (ix) to make any change in
the subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company and Sub
Co-Issuer (or any Representative thereof) under such subordination provisions;
or (x) to provide for the issuance of the Exchange Securities or Additional
Securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company or Sub Co-Issuer) and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities then outstanding may declare the
principal of and accrued but unpaid interest on all the Securities to be due and
payable. If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company or Sub Co-Issuer occurs, the
principal of and interest on all the Securities shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances, the Holders of a majority in principal
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any)
10
or interest when due, no Holder may pursue any remedy with respect to the
Indenture or the Securities unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) Holders of at least
25% in principal amount of the outstanding Securities have requested the Trustee
in writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company, Sub Co-Issuer or the Company's Affiliates with the same rights
it would have if it were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company, Sub Co-Issuer or any Subsidiary Guarantor shall not have any liability
for any obligations of the Company or Sub Co-Issuer under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
11
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP and ISIN Numbers
----------------------
The Company and Sub Co-Issuer have caused CUSIP and ISIN numbers
to be printed on the Securities and have directed the Trustee to use CUSIP and
ISIN numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
Either the Company or Sub Co-Issuer will furnish to any Holder of
Securities upon written request and without charge to the Holder a copy of the
Indenture which has in it the text of this Security.
12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books
of the Company and Sub Co-Issuer. The agent may substitute another to act for
him.
___________________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[_] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[_] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company and Sub Co-Issuer; or
(2) [_] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [_] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [_] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [_] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held
14
immediately after the transfer through Euroclear or
Clearstream until the expiration of the Restricted Period
(as defined in the Indenture); or
(6) [_] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
(7) [_] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however,
-------- -------
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company and Sub
Co-Issuer have reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
_________________________
Your Signature
Signature Guarantee:
Date: ________________________ ______________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
___________________________________________________________________________
15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company and Sub Co-Issuer as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
16
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company and Sub Co-Issuer pursuant to Section 4.06 (Asset Disposition) or 4.08
(Change of Control) of the Indenture, check the box:
Asset Disposition [_] Change of Control [_]
If you want to elect to have only part of this Security
purchased by the Company and Sub Co-Issuer pursuant to Section 4.06 or 4.08 of
the Indenture, state the amount ($1,000 or an integral multiple thereof):
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY, SUB CO-ISSUER OR THE COMPANY'S AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. [ ] $_____________
9 1/2% Senior Subordinated Note due 2009
CUSIP No. [ ]
ISIN No. [ ]
ARMKEL, LLC, a Delaware limited liability company (the "Company") and
ARMKEL FINANCE, INC., a Delaware corporation ("Sub Co-Issuer"), promise to pay
to Cede & Co., or registered assigns, the principal sum listed on the Schedule
of Increases or Decreases in Global Security attached hereto on August 15, 2009.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
ARMKEL, LLC,
by
______________________________
Name:
Title:
ARMKEL FINANCE, INC.,
by
______________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
_____________________________
Authorized Signatory
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 1/2% Senior Subordinated Note due 2009
1. Interest.
--------
Armkel, LLC, a Delaware limited liability company (such company,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company") and Armkel Finance, Inc., a Delaware
corporation ("Sub Co-Issuer"), promise to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company shall pay
interest semiannually on February 15 and August 15 of each year. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from August 28, 2001 until the principal hereof is due. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities plus
1% per annum, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
2. Method of Payment
-----------------
The Company and Sub Co-Issuer shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
at the close of business on the February 1 or August 1 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company and Sub Co-Issuer shall
pay principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depositary. The Company and Sub
Co-Issuer will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of the
Paying Agent, except that, at the option of the Company and Sub Co-Issuer,
payment of interest may be made by mailing a check to the registered address of
each Holder thereof; provided, however, that payments on the Securities may also
-------- -------
be made, in the case of a Holder of at least $1,000,000 aggregate principal
amount of Securities, by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
4
3. Paying Agent and Registrar
--------------------------
Initially, The Bank of New York, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The Company and Sub
Co-Issuer may appoint and change any Paying Agent or Registrar without notice to
the Holders. The Company, Sub Co-Issuer or any of the Company's domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4. Indenture
---------
The Company and Sub Co-Issuer issued the Securities under an
Indenture dated as of August 28, 2001 (the "Indenture"), among the Company, Sub
Co-Issuer and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) as in effect on the date
-----
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior subordinated unsecured obligations of
the Company and Sub Co-Issuer limited to $450,000,000 aggregate principal amount
at any one time outstanding (subject to Sections 2.08 and 2.09 of the
Indenture). This Security is one of the Exchange Securities referred to in the
Indenture. The Securities include the Original Securities, the Additional
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and the Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company, Sub Co-Issuer and the Company's Restricted Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make Asset Sales. The Indenture also
imposes limitations on the ability of the Company, Sub Co-Issuer and each
Subsidiary Guarantor to consolidate or merge with or into any other Person or
convey, transfer or lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Company
and Sub Co-Issuer under the Indenture and the Securities when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Subsidiary
Guarantors have, jointly and severally, unconditionally guaranteed the
Guaranteed Obligations on a senior basis subordinated pursuant to the terms of
the Indenture.
5
5. Redemption
----------
(a) Optional Redemption. Except as set forth in the following
paragraph, the Securities shall not be redeemable at the option of the Company
or Sub Co-Issuer prior to August 15, 2005. Thereafter, the Securities shall be
redeemable at the option of the Company or Sub Co-Issuer, in whole or in part,
on not less than 30 nor more than 60 days prior notice, at the following
redemption prices (expressed as percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
August 15 of the years set forth below:
Redemption
Year Price
----------------------------------------------------------------
2005 104.750%
2006 103.167%
2007 101.583%
2008 and thereafter 100.000%
In addition, prior to August 15, 2004, the Company or Sub
Co-Issuer may redeem, on one or more occasions, up to a maximum of 35% of the
original aggregate principal amount of the Securities (calculated giving effect
to any issuance of Additional Securities) with the Net Cash Proceeds of one or
more Equity Offerings at a redemption price equal to 109.500% of the principal
amount thereof, plus accrued and unpaid interest to the redemption date (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided, however, that
-------- -------
after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption
shall be made within 90 days of such Equity Offering upon not less than 30 nor
more than 60 days notice mailed to each Holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
(b) Special Redemption. Notwithstanding the foregoing, in the
event that, (i) in the sole judgement of the Company and Sub Co-Issuer, the
Acquisition will not be consummated by December 15, 2001, then the Company and
Sub Co-Issuer may redeem the Securities, in whole but not in part, at their sole
option prior to December 31, 2001, at a redemption price (the "Special
Redemption Price") in cash equal to 101% of the issue price of the Securities
(i.e., 101% X 99.323% = 100.316% of the principal amount at maturity) plus
accrued and unpaid interest to the Special Redemption Date or (ii) the
Acquisition has not be consummated on or prior to December 15, 2001, then the
Company and Sub Co-Issuer will mandatorily redeem all the Securities on December
31, 2001, at the Special Redemption Price.
6
The "Special Redemption Date" means the earlier of (a) the date
that the Company and Sub Co-Issuer elect to redeem all the Securities if in the
sole judgment of the Company or Sub Co-Issuer, the Acquisition will not be
consummated by December 15, 2001, or (b) December 31, 2001 if the Acquisition is
not consummated by December 15, 2001 (either redemption, a "Special
Redemption").
"Acquisition" means the acquisition by the Company of the
consumer products businesses of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc. pursuant to the Acquisition
Agreement and the substantially concurrent sale pursuant to the Product Line
Purchase Agreement.
"Acquisition Agreement" means the Asset Purchase Agreement
between the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Inc., dated as of May 7, 2001, as the
same may be amended, modified or supplemented from time to time.
"Product Line Purchase Agreement" means the Amended and Restated
Product Line Purchase Agreement, dated as July 26, 2001 and effective as of May
7, 2001, by and between the Company and C&D, providing for the Company's sale of
assets relating to the Arrid Extra Dry, Arrid XX and Lady's Choice
antiperspirant and deodorant product lines (in the United States and Canada),
and the assets relating to the ▇▇▇▇▇▇▇-▇▇▇ line of pet products, to C&D and
C&D's assumption of related liabilities, as the same may be amended, modified or
supplemented from time to time.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of an optional redemption pursuant to paragraph 5(a)
above will be mailed by first-class mail at least 30 days but not more than 60
days before the redemption date and notice of a Special Redemption pursuant to
paragraph 5(b) above will be mailed 10 days prior to the Special Redemption
Date, in each case, to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
----------------------------------------------------------------------------
Asset Dispositions
------------------
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions specified in the Indenture, to cause the
Company and Sub Co-Issuer to
7
repurchase all or any part of the Securities of such Holder at a purchase price
equal to 101% of the principal amount of the Securities to be repurchased plus
accrued and unpaid interest to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of purchase) as
provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company and Sub
Co-Issuer will be required to offer to purchase Securities upon the occurrence
of certain events.
9. Subordination
-------------
The Securities and Subsidiary Guarantees are subordinated to Senior
Indebtedness, as defined and as set forth more fully in the Indenture. To the
extent provided in the Indenture, Senior Indebtedness must be paid before the
Securities may be paid. The Company, Sub Co-Issuer and each Subsidiary Guarantor
agrees, and each Holder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it
effect and appoints the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed or 15 days before an interest payment
date.
11. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered Holder of this
Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent shall pay the money back to the
Company or Sub Co-Issuer upon their written request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the
money must look to the Company or Sub Co-Issuer for payment as general creditors
and the Trustee and the Paying Agent shall have no further liability with
respect to such monies.
8
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company and Sub Co-Issuer at any
time may terminate some of or all their obligations under the Securities and the
Indenture if the Company and Sub Co-Issuer deposits with the Trustee money or
U.S. Government Obligations or a combination thereof for the payment of
principal and interest on the Securities to redemption or maturity, as the case
may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended without prior notice to any Holder
but with the written consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding and (ii) any default may be
waived with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company, Sub Co-Issuer, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to provide
for uncertificated Securities in addition to or in place of certificated
Securities; (iv) to add Subsidiary Guarantees with respect to the Securities;
(v) to secure the Securities; (vi) to add additional covenants or to surrender
rights and powers conferred on the Company and Sub Co-Issuer; (vii) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any change that
does not adversely affect the rights of any Holder; (ix) to make any change in
the subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company and Sub
Co-Issuer (or any Representative thereof) under such subordination provisions;
or (x) to provide for the issuance of the Exchange Securities or Additional
Securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Company or
Sub Co-Issuer) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities then outstanding may declare the principal of
and accrued but unpaid interest on all the Securities to be due and payable. If
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company or Sub Co-Issuer occurs, the principal of and
interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or
9
direction of any of the Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense and
certain other conditions are complied with. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to the Indenture or the Securities unless (i)
such Holder has previously given the Trustee notice that an Event of Default is
continuing, (ii) Holders of at least 25% in principal amount of the outstanding
Securities have requested the Trustee in writing to pursue the remedy, (iii)
such Holders have offered the Trustee reasonable security or indemnity against
any loss, liability or expense, (iv) the Trustee has not complied with such
request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount of
the outstanding Securities have not given the Trustee a direction inconsistent
with such request within such 60-day period. Subject to certain restrictions,
the Holders of a majority in principal amount of the outstanding Securities are
given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company,
Sub Co-Issuer or the Company's Affiliates with the same rights it would have if
it were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Company,
Sub Co-Issuer or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company or Sub Co-Issuer under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
10
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP and ISIN Numbers
----------------------
The Company and Sub Co-Issuer have caused CUSIP and ISIN numbers to be
printed on the Securities and have directed the Trustee to use CUSIP and ISIN
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
Either the Company or Sub Co-Issuer will furnish to any Holder of
Securities upon written request and without charge to the Holder a copy of the
Indenture which has in it the text of this Security.
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books
of the Company and Sub Co-Issuer. The agent may substitute another to act for
him.
____________________________________________________________
Date: ________________ Your Signature: __________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company or Sub Co-Issuer pursuant to Section 4.06 (Asset Disposition) or 4.08
(Change of Control) of the Indenture, check the box:
Asset Disposition [_] Change of Control [_]
If you want to elect to have only part of this Security
purchased by the Company or Sub Co-Issuer pursuant to Section 4.06 or 4.08 of
the Indenture, state the amount ($1,000 or an integral multiple thereof):
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee.
13
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of [ ], among [GUARANTOR] (the "New Guarantor"), a
subsidiary of ARMKEL, LLC (or its successor), a Delaware limited
liability company (the "Company"), ARMKEL FINANCE, INC., a
Delaware corporation (the "Sub Co-Issuer"), [EXISTING
GUARANTORS] and THE BANK OF NEW YORK, a New York banking
corporation, as trustee under the indenture referred to below
(the "Trustee").
W I T N E S S E T H :
WHEREAS the Company, Sub Co-Issuer and [OLD GUARANTORS] (the
"Existing Guarantors") have heretofore executed and delivered to the Trustee an
Indenture (the "Indenture") dated as of August 28, 2001, providing for the
issuance of an aggregate principal amount of up to $225,000,000 of 9 1/2% Senior
Subordinated Notes due 2009 (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company and Sub Co-Issuer are required to cause the New
Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally guarantee all the
Company's and Sub Co-Issuer's obligations under the Securities pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company, Sub Co-Issuer and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, Sub Co-Issuer, the Existing Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly
----------------------
and severally with all the Existing Guarantors, to unconditionally guarantee the
Company's and Sub Co-Issuer's obligations under the Securities on the terms and
subject to the conditions set forth in Articles 11 and 12 of the Indenture and
to be bound by all other applicable provisions of the Indenture and the
Securities.
2
2. Ratification of Indenture; Supplemental Indentures Part of
----------------------------------------------------------
Indenture. Except as expressly amended hereby, the Indenture is in all respects
---------
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
-------------------------------
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
------------
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
------------------
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
________________________________________
Name:
Title:
ARMKEL, LLC,
by
________________________________________
Name:
Title:
ARMKEL FINANCE, INC.,
by
________________________________________
Name:
Title:
[EXISTING GUARANTORS],
by_______________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
________________________________________
Name:
Title:
EXHIBIT D
Form of
Transferee Letter of Representation
Armkel, LLC
Armkel Finance, Inc.
In care of
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Corporate Trust Administration
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $ principal
amount of the 9 1/2% Senior Subordinated Notes due 2009 (the "Securities") of
Armkel, LLC (the "Company") and Armkel Finance, Inc. (the "Sub Co-Issuer").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the
2
normal course of our business. We, and any accounts for which we are acting, are
each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company, Sub Co-Issuer
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company and Sub Co-Issuer, (b) pursuant to a registration statement that has
been declared effective under the Securities Act, (c) in a transaction complying
with the requirements of Rule 144A under the Securities Act ("Rule 144A"), to a
person we reasonably believe is a qualified institutional buyer under Rule 144A
(a "QIB") that is purchasing for its own account or for the account of a QIB and
to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor," in each case in
a minimum principal amount of Securities of $250,000, or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company, Sub Co-Issuer and the Trustee, which shall provide, among other
things, that the transferee is an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it
is acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to the offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Securities pursuant to
clause (d), (e) or (f) above to require the delivery of an opinion of counsel,
certifications or other information satisfactory to the Company, Sub Co-Issuer
and the Trustee.
TRANSFEREE:_________________,
by:_________________________
