Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of July 2, 2001 (this "Supplemental
Indenture"), among XXXXX & MINOR, INC., a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (the "Company"), having
its principal office at 0000 Xxx Xxxx, Xxxx Xxxxx, Xxxxxxxx 00000, each of the
GUARANTORS signatory hereto and SUNTRUST BANK, a banking corporation organized
under the laws of the State of Georgia, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and delivered
an Indenture, dated as of July 2, 2001 (the "Indenture"), to provide for the
issuance by the Company from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company has
authorized the issuance of $200,000,000 of its 8 1/2% Senior Subordinated Notes
Due 2011 (the "Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on the
signature page thereof entered into a Registration Rights Agreement, dated as of
the date hereof (as such agreement may be amended, modified or supplemented from
time to time, the "Registration Rights Agreement"), which contemplates (i) the
registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Notes and (ii) the consummation of an Exchange Offer (defined
below); and
WHEREAS, the Company desires to establish the terms of the Notes in
accordance with Section 3.1 of the Indenture and to establish the form of the
Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
Section 1.01 TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the title "8
1/2% Senior Subordinated Notes due 2011."
(2) The aggregate principal amount of the Notes that may be authenticated
and delivered under the Indenture (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 3.4, 3.5, 3.6, 8.6 or 11.7 of the Indenture or any
Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated or delivered thereunder) shall be up to $200,000,000.
(3) The entire outstanding principal of the Notes shall be payable on July
15, 2011 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be 8 1/2%; (a)
with respect to the Notes, interest shall accrue from the date hereof; (b) the
Interest Payment Dates for the Notes on which interest will be payable shall be
January 15 and July 15 of each year, beginning January 15, 2002; the Regular
Record Dates for the interest payable on the Notes on any Interest Payment Date
shall be January 1 with respect to the January 15 Interest Payment Date and July
1 with respect to the July 15 Interest Payment Date; (c) Liquidated Damages, if
any, from time to time, shall be at the rate set forth in the Registration
Rights Agreement, dated as of July 2, 2001 among the Company, the Guarantors and
the Initial Purchasers named therein, to the extent lawful; and the basis upon
which interest shall be calculated shall be that of a 360-day year consisting of
twelve 30-day months.
(5) The place where the principal of (and premium, if any) and interest,
including Liquidated Damages, if any, with respect to and interest on the Notes
shall be payable and Notes may be surrendered for the registration of transfer
or exchange shall be the offices of the Trustee which, as of this writing, are
located at 000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration. The place where notices or demands
to or upon the Company in respect of the Notes and the Indenture may be served
shall be the Corporate Trust Office of the Trustee. If a Holder has given wire
transfer instructions to the Company, the Company shall pay all principal,
interest and premium and Liquidated Damages, if any, on that Holder's Notes in
accordance with those instructions. All other payments on Notes shall be made at
the office or agency of the Paying Agent and Security Registrar within the City
and State of New York unless the Company elects to make interest payments by
check mailed to the Holders at their addresses set forth in the register of
Holders. Holders must surrender the Notes to the paying agent for the Notes to
collect principal payment.
(6) The Notes shall be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after July 15, 2006 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at his address appearing in the register for the
Notes, in amounts of $1,000 or an integral multiple of $1,000, at the following
redemption prices (expressed as percentages of principal amount) plus accrued
interest and Liquidated Damages, if any, to but excluding the date fixed for
redemption (subject to the right of Holders of record on the relevant Record
Date to receive interest due on any interest payment date that is on or prior to
the date fixed for redemption), if redeemed during the 12-month period beginning
on July 15 of the years indicated:
Year Redemption
---- Price
-----
2006............................... 104.250%
2007............................... 102.833%
2008............................... 101.417%
2009 and thereafter................ 100.000%
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In addition, prior to July 15, 2004, the Company may redeem up to 35% of
the original principal amount of the Notes with the net cash proceeds received
by the Company from a public offering of Capital Stock of the Company (other
than Disqualified Stock), at a redemption price (expressed as a percentage of
the principal amount) of 108.500% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, to the date fixed for
redemption; provided, however, that at least 65% of the original principal
amount of the Notes remains outstanding immediately after any such redemption
(excluding any Notes owned by the Company or any of its Affiliates). Notice of
redemption pursuant to this paragraph must be mailed to holders of Notes not
later than 60 days following the consummation of such public offering.
Selection of Notes for an partial redemption shall be made by the Trustee,
in accordance with the rules of an national securities exchange on which the
Notes may be listed or, if the Notes are not so listed, pro rata or by lot or in
such other manner as the Trustee shall deem appropriate and fair. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000. Notice of redemption shall be mailed before the date fixed
for redemption to each holder of Notes to be redeemed at his or her registered
address. On and after the date fixed for redemption, interest shall cease to
accrue on Notes or portions thereof called for redemption.
(7) Except as set forth in this Supplemental Indenture, the Notes shall
not be redeemable at the option of any Holder thereof, upon the occurrence of
any particular circumstances or otherwise. The Notes will not have the benefit
of any mandatory redemption or sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof.
(9) Payments of the principal of, Liquidated Damages, if any, with
respect to and interest on the Notes shall be made in U.S. Dollars, and the
Notes shall be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued interest,
if any, on Notes shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Article 5 of the Indenture.
(12) The Notes will be payable on the Stated Maturity Date in an amount
equal to the principal amount thereof, Liquidated Damages, if any, plus any
accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth in
the Indenture with respect to the Notes, which shall be effective only for so
long as any of the Notes are Outstanding:
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(a) Limitation on Certain Asset Dispositions.
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The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make one or more Asset Dispositions for
aggregate consideration of, or in respect of assets having an aggregate fair
market value of $5 million or more in any 12-month period, unless:
(i) the Company or the Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the
fair market value of the assets sold or disposed of as determined by the
Board of Directors of the Company in good faith and evidenced by a
resolution of such Board of Directors filed with the Trustee;
(ii) not less than 75% of the consideration for the disposition
consists of cash or readily marketable cash equivalents, Replacement Assets
or the assumption of Indebtedness (other than non-recourse Indebtedness or
any Indebtedness subordinated to the Notes) of the Company or such
Restricted Subsidiary or other obligations relating to such assets (and
release of the Company or such Restricted Subsidiary from all liability on
the Indebtedness or other obligations assumed); and
(iii) all Net Available Proceeds, less any amounts invested within
360 days of such Asset Disposition in assets related to the business of the
Company (including the Capital Stock of another Person (other than the
Company or any Person that is a Restricted Subsidiary of the Company
immediately prior to such investment), provided, however, that immediately
after giving effect to any such investment (and not prior thereto) such
Person shall be a Guarantor), are applied, on or prior to the 360th day
after such Asset Disposition, unless and to the extent that the Company
shall determine to make an Offer to Purchase, either to (A) the permanent
reduction and prepayment of any Senior Indebtedness then outstanding
(including a permanent reduction of commitments in respect thereof) or (B)
the permanent reduction and repayment of any Guarantor Senior Indebtedness
then outstanding of any Restricted Subsidiary of the Company (including a
permanent reduction of commitments in respect thereof).
Any Net Available Proceeds from any Asset Disposition which is subject
to the immediately preceding sentence that are not applied as provided in
the immediately preceding sentence shall be used promptly after the
expiration of the 360th day after such Asset Disposition, or promptly after
the Company shall have earlier determined to not apply any Net Available
Proceeds therefrom as provided in subclause (A) or (B) of clause (iii) of
the immediately preceding sentence, to make an Offer to Purchase
outstanding Notes at a purchase price in cash equal to 100% of their
principal amount plus accrued interest and Liquidated Damages, if any, to
the Purchase Date. Notwithstanding the foregoing, the Company may defer
making any Offer to Purchase outstanding Notes until there are aggregate
unutilized Net Available Proceeds from Asset Dispositions otherwise subject
to the two immediately preceding sentences equal to or in excess of $5
million (at which time, the entire unutilized Net Available Proceeds from
Asset Dispositions otherwise subject to the two immediately preceding
sentences, and not just the amount in excess of $5 million, shall be
applied as required pursuant to this paragraph). If any Indebtedness of the
Company ranking pari passu with the Notes requires that prepayment of, or
an offer to prepay, such Indebtedness be made with any Net Available
proceeds, the Company may apply any such Net Available Proceeds pro rata
(based on the aggregate principal amount of the Notes then outstanding and
the aggregate principal amount (or accreted value, if less) of all such
other Indebtedness then outstanding) to the making of an Offer to Purchase
the Notes in accordance with the foregoing provisions and the prepayment or
the offer to prepay such pari passu Indebtedness. The Company shall make a
further Offer to Purchase Notes in an amount equal to any such Net
Available Proceeds not utilized to actually prepay such other Indebtedness
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at a purchase price in cash equal to 100% of the principal amount of the
Notes plus accrued interest to the Purchase Date if the amount not so
utilized equals or exceeds $5 million. Any remaining Net Available Proceeds
following the completion of the required Offer to Purchase may be used by
the Company for any other purpose (subject to the other provisions of the
Indenture) and the amount of Net Available Proceeds then required to be
otherwise applied in accordance with this covenant shall be reset to zero,
subject to any subsequent Asset Disposition. These provisions shall not
apply to a transaction consummated in compliance with the provisions
described under Section 7.1 of the Indenture (as superceded by Section
1.01(15) of the Supplemental Indenture).
In the event that the Company makes an Offer to Purchase the Notes,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act and any violation of the provisions of this Supplemental
Indenture or the Indenture relating to such Offer to Purchase occurring as a
result of such compliance shall not be deemed an Event of Default or an event
that with the passing of time or giving of notice, or both, would constitute an
Event of Default.
(b) Change of Control.
-----------------
(i) Within 30 days following the date of the consummation of a
transaction resulting in a Change of Control, the Company shall commence an
Offer to Purchase all outstanding Notes at a purchase price in cash equal
to 101% of their principal amount plus accrued interest and Liquidated
Damages, if any, to the Purchase Date.
(ii) Such Offer to Purchase shall be consummated not earlier than 30
days and not later than 60 days after the commencement thereof. Each Holder
shall be entitled to tender all or any portion of the Notes owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that
any portion of a Note tendered must bear an integral multiple of $1,000
principal amount. A "Change of Control" shall be deemed to have occurred in
the event that (whether or not otherwise permitted hereunder or by the
Indenture), after the Issue Date (a) any Person or any Persons acting
together that would constitute a group (for purposes of Section 13(d) of
the Exchange Act, or any successor provision thereto) (a "Group"), together
with any Affiliates or Related Persons thereof, shall "beneficially own"
(as defined in Rule 13d-3 under the Exchange Act, or any successor
provision thereto) at least 35% of the voting power of the outstanding
Voting Stock of the Company; (b) any sale, lease or other transfer (in one
transaction or a series of related transactions) is made by the Company or
any of its Subsidiaries of all or substantially all of the consolidated
assets of the Company and its Restricted Subsidiaries to any Person other
than a Wholly Owned Subsidiary of the Company which is a Guarantor (other
than a Securitization Subsidiary or the Special Purpose Trust); (c)
Continuing Directors cease to constitute at least a majority of the Board
of Directors of the Company; or (d) the stockholders of the Company approve
any plan or proposal for the liquidation or dissolution of the Company.
(iii) On the Purchase Date, the Company shall, to the extent lawful,
(1) deposit with the Paying Agent an amount equal to the Offer to Purchase
in respect of all Notes or portions thereof so tendered and (2) deliver or
cause to be delivered to the Trustee the
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Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each Holder of Notes
so tendered payment in an amount equal to the purchase price for the Notes,
and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered by such Holder,
if any; provided, that each such new Note shall be in a principal amount of
$1,000 or an integral multiple thereof. The Company shall publicly announce
the results of the Offer to Purchase on or as soon as practicable after the
Purchase Date.
(iv) In the event that the Company makes an Offer to Purchase the
Notes, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act and any violation of the provisions of
the Indenture relating to such Offer to Purchase occurring as a result of
such compliance shall not be deemed an Event of Default or an event that
with the passing of time or giving of notice, or both, would constitute an
Event of Default.
(v) If the Company does not obtain any required waiver or consent of
the lenders under the Revolving Credit Agreement or repay such
Indebtedness, the Company shall remain prohibited from repurchasing the
Notes. In such event, the Company's failure to purchase tendered Notes
would constitute an Event of Default under the Indenture which would in
turn constitute a default under the Revolving Credit Facility and possibly
other Senior Indebtedness.
(vi) The Company shall not be required to make an Offer to Purchase in
accordance with this covenant if a third party makes the Offer to Purchase
in the manner, at the times and otherwise in compliance with the
requirements set forth in the Indenture and this Supplemental Indenture
applicable to an Offer to Purchase made by the Company and purchases all
Notes properly tendered and not withdrawn under the Offer to Purchase.
(c) Limitation on Indebtedness.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, Incur, directly or indirectly, any Indebtedness (including
Acquired Debt), except:
(i) Indebtedness (including Acquired Debt) of the Company or the
Guarantors, if immediately after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the net proceeds thereof,
the Consolidated Cash Flow Ratio of the Company for the four full fiscal
quarters for which quarterly or annual financial statements are available
preceding the Incurrence of such Indebtedness, calculated on a pro forma
basis as if such Indebtedness had been Incurred on the first day of such
four full fiscal quarters, would be greater than 2.00 to 1.00;
(ii) Indebtedness of the Company, and guarantees of such Indebtedness
by any Guarantor, Incurred under the Revolving Credit Facility in an
aggregate principal amount outstanding at any one time not to exceed the
greater of (x) $300 million less the aggregate amount of all Net Available
Proceeds of Asset Sales applied by the Company or any of its Subsidiaries
to repay any
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revolving credit Indebtedness under the Revolving Credit Facility and
effect a corresponding commitment reduction thereunder pursuant to the
covenant described under Section 1.01(13)(a) of this Supplemental
Indenture; or (y) the sum of (A) 85% of Eligible Accounts Receivable and
(B) 50% of Eligible Inventory;
(iii) Indebtedness owed by the Company to any Guarantor or
Indebtedness owed by a Restricted Subsidiary of the Company to the Company
or a Guarantor; provided, however, upon either (I) the transfer or other
disposition by such Subsidiary or the Company of any Indebtedness so
permitted under this clause (iii) to a Person other than the Company or a
Guarantor or (II) the issuance (other than directors' qualifying shares),
sale, transfer or other disposition of shares of Capital Stock or other
ownership interests (including by consolidation or merger) of such
Guarantor to a Person other than the Company or another such Guarantor, the
provisions of this clause (iii) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been Incurred at
the time of any such issuance, sale, transfer or other disposition, as the
case may be;
(iv) Indebtedness of the Company or its Restricted Subsidiaries under
any interest rate or currency swap agreement to the extent entered into to
hedge any other Indebtedness permitted hereunder or under the Indenture
that are incurred in the normal course of business for the purpose of
fixing or hedging currency, commodity or interest rate risk (including with
respect to any floating or fixed rate Indebtedness that is permitted by the
terms of the Indenture to be Outstanding in connection with the conduct of
the Company or its Subsidiaries' businesses and not for speculative
purposes) and any interest rate swap agreement entered into to hedge
obligations under (x) any Qualified Securitization Transaction or (y) the
Trust Obligations;
(v) Indebtedness Incurred to renew, extend, refinance or refund
(collectively for purposes of this clause (v) to "refund") any Indebtedness
outstanding on the Issue Date and Indebtedness Incurred under the prior
clause (i) above or the Notes; provided, however, that (I) such
Indebtedness does not exceed the principal amount (or accrual amount, if
less) of Indebtedness so refunded plus the amount of any premium required
to be paid in connection with such refunding pursuant to the terms of the
Indebtedness refunded or the amount of any premium reasonably determined by
the Company as necessary to accomplish such refunding by means of a tender
offer, exchange offer, or privately negotiated repurchase, plus the
expenses of the Company or such Restricted Subsidiary incurred in
connection therewith and (II) (A) in the case of any refunding of (x)
Indebtedness that is pari passu with the Notes and (y) the Trust
Securities, such refunding Indebtedness is made pari passu with or
subordinate in right of payment to the Notes, and, in the case of any
refunding of Indebtedness that is subordinate in right of payment to the
Notes, such refunding Indebtedness is subordinate in right of payment to
the Notes on terms no less favorable to the Holders than those contained in
the Indebtedness being refunded, (B) in either case, the refunding
Indebtedness by its terms, or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, does not have an Average
Life that is less than the remaining Average Life of the Indebtedness being
refunded and does not permit redemption or other retirement (including
pursuant to any required offer to purchase to be made by the Company or
Restricted Subsidiary of the Company) of such Indebtedness at the option of
the holder thereof prior to the final stated maturity of the Indebtedness
being refunded, other than a redemption or other retirement at the option
of the holder of such Indebtedness (including pursuant to a required offer
to purchase made by the Company or a Restricted Subsidiary of the Company)
which is conditioned upon a change of control of the Company pursuant to
provisions substantially similar to those contained in Section 1.01(13)(b)
of this Supplemental Indenture and (C) any Indebtedness Incurred to refund
any other Indebtedness is Incurred by the obligor on the Indebtedness being
refunded or by the Company;
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(vi) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities, hold backs or obligations in respect
of purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation shares of Capital
Stock of Subsidiaries, or contingent payment obligations incurred in
connection with the acquisition or disposition of assets acquired or
disposed of;
(vii) Indebtedness represented by (I) letters of credit for the
account of the Company or any Restricted Subsidiary or (II) other
obligations to reimburse third parties pursuant to any surety bond or other
similar arrangements, to the extent that such letters of credit and other
obligations, as the case may be, are intended to provide security for
workers' compensation claims, payment obligations in connection with self-
insurance, in connection with participation in government reimbursement or
other programs or similar requirements in the ordinary course of business;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings, or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount, including all Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (viii), not to
exceed $15 million at any time outstanding;
(ix) Indebtedness of the Company under the Notes (excluding any
additional debt securities issued under the Indenture from time to time)
and Indebtedness of the Guarantors under the Guarantees;
(x) the Trust Obligations and the 2006 Notes;
(xi) the consummation of a Qualified Securitization Transaction; and
(xii) Indebtedness of the Company or its Restricted Subsidiaries, not
otherwise permitted to be Incurred pursuant to clauses (i) through (xi)
above, which, together with any other outstanding Indebtedness Incurred
pursuant to this clause has an aggregate principal amount not in excess of
$35 million at any time outstanding.
(d) Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution of any
kind or character (whether in cash, property or securities), in respect of
any class of its Capital Stock or to the holders thereof, excluding any (x)
dividends or distributions payable solely in shares of its Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
acquire its Capital Stock (other than Disqualified Stock), or (y) in the
case of any Restricted Subsidiary of the Company, dividends or
distributions payable to the Company or a Restricted Subsidiary of the
Company (other than dividends or distributions payable to a Securitization
Subsidiary or the Special Purpose Trust),
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(ii) purchase, redeem, or otherwise acquire or retire for value
shares of Capital Stock of the Company or any of its Restricted
Subsidiaries, any options, warrants or rights to purchase or acquire shares
of Capital Stock of the Company or any of its Restricted Subsidiaries or
any securities convertible or exchangeable into shares of Capital Stock of
the Company or any of its Restricted Subsidiaries, excluding any such
shares of Capital Stock, options, warrants, rights or securities which are
owned by the Company or a Restricted Subsidiary of the Company (other than
any such shares, options, warrants or rights that are owned by a
Securitization Subsidiary or the Special Purpose Trust),
(iii) make any Investment in (other than a Permitted Investment), or
payment on a guarantee of any obligation of, any Person, other than the
Company or a Guarantor, or
(iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value, prior to any scheduled maturity, repayment or sinking
fund payment, Indebtedness which is subordinate in right of payment to the
Notes,
(each of the transactions described in clauses (i) through (iv) (other than
any exception to any such clause) being a "Restricted Payment") if at the time
thereof:
(1) an Event of Default, or an event that with the passing of
time or giving of notice, or both, would constitute an Event of Default,
shall have occurred and be continuing, or
(2) upon giving effect to such Restricted Payment, the Company
could not Incur at least $1.00 of additional Indebtedness pursuant to the
terms of the Indenture described in clause (i) of Section 1.01(13)(c)
above, or
(3) upon giving effect to such Restricted Payment, the aggregate
of all Restricted Payments made on or after the Issue Date exceeds the sum
of:
(a) 50% of cumulative Consolidated Net Income of the
Company (or, in the case cumulative Consolidated Net Income of
the Company shall be negative, less 100% of such deficit) since
January 1, 2001 through the last day of the fiscal quarter for
which financial statements are available; plus
(b) 100% of the aggregate net proceeds received after the
Issue Date, from the issuance of Capital Stock (other than
Disqualified Stock) of the Company and warrants, rights or
options on Capital Stock (other than Disqualified Stock) of the
Company (other than in respect of any such issuance to a
Restricted Subsidiary of the Company) and the principal amount of
Indebtedness of the Company or any of its Restricted Subsidiaries
(other than a Securitization Subsidiary) that has been converted
into or exchanged for Capital Stock of the Company; plus (c) in
the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date, an
amount equal to the lesser of the return of capital with respect
to such Investment and the cost of such Investment, in either
case, less the cost of the disposition of such Investment;
provided, however, that at the time any such Investment is
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made the Company delivers to the Trustee a resolution of its
Board of Directors to the effect that, for purposes of this
Section 1.01(13)(d), such Investment constitutes a Restricted
Payment made after the Issue Date.
The foregoing provision will not be violated by:
(i) any dividend on any class of Capital Stock of the Company or
any Restricted Subsidiary of the Company paid within 90 days after the
declaration thereof if, on the date when the dividend was declared, the
Company or such Restricted Subsidiary, as the case may be, could have paid
such dividend in accordance with the provisions of the Indenture;
(ii) the payments of distribution on any of the outstanding Trust
Securities, in accordance with the terms thereof as in effect on the Issue
Date;
(iii) the renewal, extension, refunding or refinancing of any
Indebtedness (including, without limitation, the Trust Securities)
otherwise permitted pursuant to the terms of the Indenture described in
clause (v) of Section 1.01(13)(c) above;
(iv) the exchange or conversion of any Indebtedness of the Company
or any Restricted Subsidiary of the Company (other than a Securitization
Subsidiary) for or into Capital Stock of the Company (other than
Disqualified Stock of the Company);
(v) any payments, loans or other advances made pursuant to any
employee benefit plans (including plans for the benefit of directors) or
employment agreements or other compensation arrangements, in each case as
approved by the Board of Directors of the Company in its good faith
judgment;
(vi) the redemption of the Company's rights issued pursuant to the
Amended and Restated Rights Agreement, dated as of May 10, 1994, between
the Company and Bank of New York, as successor Rights Agent, in an amount
per right issued thereunder not to exceed that in effect on the Issue Date;
(vii) so long as no Default or Event of Default has occurred and is
continuing, any investment made with the proceeds of a substantially
concurrent sale of Capital Stock of the Company (other than Disqualified
Stock); provided, however, that the proceeds of such sale of Capital Stock
shall not be (and have not been) included in subclause (b) of clause (3) of
the preceding paragraph;
(viii) the redemption, repurchase, retirement or other acquisition of
any Capital Stock of the Company or the Trust Securities, in exchange for
or out of the net cash proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary of the Company) of Capital Stock of the
Company (other than Disqualified Stock) ; provided, however, that the
proceeds of such sale of Capital Stock shall not be (and have not been)
included in subclause (b) of clause (3) of the preceding paragraph;
(ix) so long as no Default or Event of Default has occurred and is
continuing, the payment of cash dividends on the Company's Common Stock not
to exceed $0.085 per share then outstanding in any fiscal quarter of the
Company; or
(x) so long as no Default or Event of Default has occurred and is
continuing, the redemption, repurchase, retirement or other acquisition of
the Trust Securities or the
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repurchase, retirement or other acquisition of the Company's common stock
if after giving pro forma effect thereto (including without limitation the
financing thereof) the Company's Consolidated Cash Flow Ratio would be
greater than or equal to 3.00 to 1.00; provided, however, that the
aggregate amount expended pursuant to this clause (x) to redeem,
repurchase, retire or otherwise acquire the Company's common stock shall
not exceed $35 million.
Each Restricted Payment described in clauses (i), (iv), (v) (only to the
extent such payment, loan or advance is outside the ordinary cause of business)
and (vi) of the previous sentence shall be taken into account for purposes of
computing the aggregate amount of all Restricted Payments pursuant to clause (3)
of the preceding paragraph.
(e) Limitations Concerning Distributions and Transfers by Subsidiaries.
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The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to
(i) pay, directly or indirectly, dividends or make any other
distributions in respect of its Capital Stock or pay any Indebtedness or
other obligation owed to the Company or any Restricted Subsidiary of the
Company,
(ii) make loans or advances to the Company or any Restricted
Subsidiary of the Company or guarantee any Indebtedness of the Company or
any of its Restricted Subsidiaries or
(iii) transfer any of its property or assets to the Company or any
Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(a) any agreement in effect on the Issue Date (including
pursuant to the Revolving Credit Facility and agreements entered into
in connection therewith) as any such agreement is in effect on such
date,
(b) any agreement relating to any Indebtedness incurred by
such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company and outstanding on such date
and not incurred in anticipation or contemplation of becoming a
Restricted Subsidiary and provided such encumbrance or restriction
shall not apply to any assets of the Company or its Subsidiaries other
than such Restricted Subsidiary,
(c) customary provisions contained in an agreement which has
been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary;
provided, however, that such encumbrance or restriction is applicable
only to such Restricted Subsidiary or assets,
(d) an agreement effecting a renewal, exchange, refunding,
amendment or extension of Indebtedness incurred pursuant to an
agreement referred to in clause (a) or
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(b) above; provided, however, that the provisions contained in such
renewal, exchange, refunding, amendment or extension agreement
relating to such encumbrance or restriction are no more restrictive in
any material respect than the provisions contained in the agreement
that is the subject thereof in the reasonable judgment of the Board of
Directors of the Company as evidenced by a resolution of such Board of
Directors filed with the Trustee,
(e) the Indenture,
(f) applicable law,
(g) customary provisions restricting subletting or
assignment of any lease governing any leasehold interest of any
Restricted Subsidiary of the Company,
(h) Indebtedness or any other contractual requirements
(including pursuant to any corporate governance documents in the
nature of a charter or by-laws) of a Securitization Subsidiary or the
Special Purpose Trust arising in connection with a Qualified
Securitization Transaction or the Trust Obligations, respectively;
provided, however, that any such encumbrance or restriction applies
only to such Securitization Subsidiary or the Special Purpose Trust,
as the case may be, and obligations of Restricted Subsidiaries to
transfer Receivables and Receivables Related Assets to a
Securitization Subsidiary in a Qualified Securitization Transaction,
(i) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the type
referred to in clause (iii) of this covenant, or
(j) restrictions of the type referred to in clause (iii) of
this covenant contained in security agreements securing Indebtedness
of a Restricted Subsidiary of the Company to the extent that such
Liens were otherwise incurred in accordance with Section 1.01(13)(f)
below and restrict the transfer of property subject to such
agreements.
(f) Limitation on Liens.
-------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, Incur any Lien on or with respect to any property or assets of
the Company or any Restricted Subsidiary of the Company owned on the Issue Date
or thereafter acquired or on the income or profits thereof to secure
Indebtedness without making, or causing such Restricted Subsidiary to make,
effective provision for securing the Notes (and, if the Company shall so
determine, any other Indebtedness of the Company or such Restricted Subsidiary,
including Indebtedness which is subordinate in right of payment to the Notes;
provided, however, that Liens securing the Notes and any Indebtedness pari passu
with the Notes are senior to such Liens securing such subordinated indebtedness)
equally and ratably with such Indebtedness or, in the event such Indebtedness is
subordinate in right of payment to the Notes or the Guarantees, prior to such
Indebtedness, as to such property or assets for so long as such Indebtedness
shall be so secured. The foregoing restrictions shall not apply to
(i) Liens securing Senior Indebtedness of the Company or Guarantor
Senior Indebtedness;
(ii) Liens securing only the Notes;
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(iii) Liens in favor of the Company;
(iv) Liens to secure Indebtedness (including, without limitation,
Capital Lease Obligations) permitted by clause (viii) of Section
1.01(13)(c); provided, however, that
(a) the aggregate principal amount of any Indebtedness secured
by such a Lien does not exceed 100% of such purchase price or cost,
(b) such Lien does not extend to or cover any other property
other than such item of property and any improvements on such item,
(c) the Indebtedness secured by such Lien is Incurred by the
Company or its Restricted Subsidiary within 180 days of the
acquisition, construction or improvement of such property and
(d) the Incurrence of such Indebtedness is permitted by the
provisions of the Indenture described under Section 1.01(13)(c) above;
(v) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in anticipation or contemplation of
the financing of such acquisition),
(vi) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company (and not created in anticipation or contemplation
thereof);
(vii) Liens on property of the Company or any Restricted Subsidiary
of the Company in favor of the United States of America, any state thereof,
or any instrumentality of either to secure payments pursuant to any
contract or statute;
(viii) Liens granted in connection with any Qualified Securitization
Transaction;
(ix) Liens existing on the Issue Date securing Indebtedness existing
on the Issue Date;
(x) Liens to secure Indebtedness Incurred to extend, renew,
refinance or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, any Indebtedness secured by Liens
referred to in the foregoing clauses (i) through (ix) so long as such Liens
do not extend to any other property and the principal amount of
Indebtedness so secured is not increased except for the amount of any
premium required to be paid in connection with such renewal, refinancing or
refunding pursuant to the terms of the Indebtedness renewed, refinanced or
refunded or the amount of any premium reasonably determined by the Company
as necessary to accomplish such renewal, refinancing or refunding by means
of a tender offer, exchange offer or privately negotiated repurchase, plus
the expenses of the Company or such Restricted Subsidiary incurred in
connection with such renewal, refinancing or refunding; and
(xi) Liens in favor of the Trustee as provided for in the Indenture
on money or property held or collected by the Trustee in its capacity as
Trustee.
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(g) Limitation on Transactions with Affiliates and Related Persons.
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The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into, directly or indirectly, any transaction with an
Affiliate or Related Person of the Company (other than the Company or a
Restricted Subsidiary of the Company), including, without limitation, the
purchase, sale, lease or exchange of property, the rendering of any service, or
the making of any guarantee, loan, advance or Investment, either directly or
indirectly, which transaction involves aggregate consideration in excess of
$500,000, unless
(i) such transaction is on terms no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could be
obtained in a comparable arm's-length transaction with an entity that is
not an Affiliate or a Related Person, which determination in the case of a
transaction or series of related transactions involving aggregate
consideration in excess of $2.5 million shall be evidenced by a resolution
of a majority of the disinterested directors of the Board of Directors of
the Company filed with the Trustee; and
(ii) with respect to any transaction contemplated by this section or a
series of related transactions involving aggregate consideration in excess
of $10 million, the Company delivers to the Trustee, an opinion as to the
fairness to the Holders of such transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing in the United States. The provisions of this covenant shall not
apply to
(a) any Qualified Securitization Transaction or the Trust
Obligations,
(b) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business,
(c) transactions permitted by the provisions of the Indenture
described above under Section 1.01(13)(d) above,
(d) the payment of reasonable fees to directors of the Company
or its Restricted Subsidiaries, and
(e) Investments in employees in the ordinary course of business.
(h) Limitation on Senior Subordinated Indebtedness
----------------------------------------------
The Company (i) shall not directly or indirectly Incur any
Indebtedness that by its terms would expressly rank senior in the right of
payment to the Notes and expressly rank subordinate in right of payment to any
Senior Indebtedness and (ii) shall not permit any Guarantor to and no Guarantor
will directly or indirectly Incur any Indebtedness that by its terms would
expressly rank senior in right of payment to the Guarantee of such Guarantor and
expressly rank subordinate in right of payment to any Guarantor Senior
Indebtedness.
(i) Provision of Financial Information.
----------------------------------
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) or any successor provision
14
thereto if the Company were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so required. The Company shall also in any event (a) within 15 days
of each Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Note Register, without cost to such Holders, and
(ii) file with the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company is required to file with the Commission
pursuant to the preceding sentence, and (b) if, notwithstanding the preceding
sentence, filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies of
such documents to any prospective Holder.
(j) Designation of Restricted and Unrestricted Subsidiaries.
-------------------------------------------------------
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Restricted Subsidiary properly designated will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under the first paragraph of
the covenant described above under Section 1.01(13)(d) or Permitted Investments,
as determined by the Company. That designation will only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if the redesignation would not cause a Default.
(k) Limitation on Issuance and Sale of Capital Stock of Subsidiaries
The Company (a) shall not, and shall not permit any Restricted
Subsidiary of the Company to, transfer, convey, sell or otherwise dispose of any
shares of Capital Stock of such Restricted Subsidiary or any other Restricted
Subsidiary (other than to the Company or a Guarantor), except that the Company
and any Restricted Subsidiary may, in any single transaction, sell all, but not
less than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary to any Person, subject to complying with the provisions of the
Indenture described under Section 1.01(13)(a) above and (b) shall not permit any
Restricted Subsidiary of the Company to issue shares of its Capital Stock (other
than directors' qualifying shares), or securities convertible into, or warrants,
rights or options to subscribe for or purchase shares of, its Capital Stock to
any Person other than to the Company or a Guarantor. This covenant will not
apply to the Trust Obligations or obligations incurred in connection with a
transaction similar to the Trust Obligations in connection with a refinancing,
refunding or replacement of the Trust Obligations.
(14) In addition to the Events of Default set forth in Section 5.1 of the
Indenture, the Notes shall include the following additional Events of Default
designated as clauses (k) and (l) of such Section, which shall be deemed Events
of Default under Section 5.1 of the Indenture:
(k) failure to perform or comply with the provisions of Section 7.1
of the Indenture (as superseded by subsection 15 of Section 1.01 of the
Supplemental Indenture) or the provisions of Sections 1.01(13)(a) and (b)
of the Supplemental Indenture.
15
(l) default in payment of principal of and interest on the Notes
required to be purchased pursuant to an Offer to Purchase described under
Sections 1.01(13)(a) of the Supplemental Indenture and (b) when due and
payable (whether or not prohibited by the provisions of Article 17 of the
Indenture).
(15) Section 7.1 of the Indenture is hereby superseded by the following in
respect of the Notes:
The Company shall not, directly or indirectly:
(1) consolidate or merge with or into another Person (whether or not
the Company is the surviving corporation); or
(2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:
(a) either: (a) the Company is the surviving corporation; or (b)
the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a corporation
organized or existing under the laws of the United States, any state
of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, the
Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(c) immediately after such transaction no Default or Event of
Default exists; and
(d) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been
made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of the covenant described above under Section
1.01(13)(c).
The provisions of this paragraph shall not apply to any merger of a
Restricted Subsidiary (other than the Securitization Subsidiary or O&M Trust) of
the Company with or into the Company or a Restricted Subsidiary of the Company
(other than a Securitization Subsidiary or O&M Trust).
(16) The Notes shall not be issuable as Bearer Securities.
16
(17) Interest on any Note shall be payable only to the Person in whose name
that Note (or one or more predecessor Notes thereof) is registered at the close
of business on the Regular Record Date for such interest.
(18) Article 4 of the Indenture shall be applicable to the Notes.
(19) The Notes shall not be issuable in definitive form except under the
circumstances described in Section 2.1 of the Indenture.
(20) The Notes shall not be subordinated to any debt of the Company other
than Senior Indebtedness, and shall constitute senior subordinated unsecured
obligations of the Company.
(21) Section 5.7 of the Indenture is hereby superseded by the following in
respect of the Notes:
SECTION 5.7 WAIVER OF PAST DEFAULTS.
------------------------
THE HOLDERS OF NOT LESS THAN A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT
OF OUTSTANDING SECURITIES OF ANY SERIES BY WRITTEN NOTICE TO THE TRUSTEE MAY
WAIVE ON BEHALF OF THE HOLDERS OF ALL SECURITIES OF SUCH SERIES AND ANY INTEREST
COUPONS APPERTAINING THERETO A PAST DEFAULT OR EVENT OF DEFAULT WITH RESPECT TO
THAT SERIES AND ITS CONSEQUENCES EXCEPT A DEFAULT OR EVENT OF DEFAULT (I) IN THE
PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON ANY SECURITY OF
SUCH SERIES OR ANY INTEREST COUPON APPERTAINING THERETO, (II) IN RESPECT OF AN
AGREEMENT OR PROVISION HEREOF WHICH PURSUANT TO ARTICLE 8 CANNOT BE AMENDED OR
MODIFIED WITHOUT THE CONSENT OF THE HOLDER OF EACH OUTSTANDING SECURITY OF SUCH
SERIES AFFECTED OR (III) ARISING FROM FAILURE TO PURCHASE ANY NOTE TENDERED
PURSUANT TO AN OFFER TO PURCHASE. UPON ANY SUCH WAIVER, SUCH DEFAULT SHALL
CEASE TO EXIST, AND ANY EVENT OF DEFAULT ARISING THEREFROM SHALL BE DEEMED TO
HAVE BEEN CURED, FOR EVERY PURPOSE OF THIS INDENTURE BUT NO SUCH WAIVER SHALL
EXTEND TO ANY SUBSEQUENT OR OTHER DEFAULT OR IMPAIR ANY RIGHT CONSEQUENT
THEREON.
(22) In addition to the items set forth in Section 8.2, such section shall
include the following additional subsection designated as subsection (j) of
Section 8.2:
(j) modify the provisions relating to any Offer to Purchase (required
pursuant to Section 1.01(13)(b) of the Supplemental Indenture) in a manner
materially adverse to the Holders.
(23) In addition to the items set forth in Section 15.3 of the Indenture
regarding release of Guarantors, the following shall be additional releases:
If all or substantially all of the assets of any Guarantor or all of
the Capital Stock of any Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition, and if (1) the Net Available Proceeds
from such Asset Disposition are used in accordance with Section 1.01(13)(a)
of this Supplemental Indenture or the Company delivers to the Trustee and
17
Officers' Certificate to the effect that the Net Available Proceeds from
such Asset Disposition shall be used in accordance with provisions of
Section 1.01(13)(a) of this Supplemental Indenture and within the time
limits specified by such section or the Company designates any Restricted
Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance
with the applicable provisions herein, then in each such case such
Guarantor (in the event of a sale or other disposition of all the Capital
Stock of such Guarantor or in the event of designation of a Restricted
Subsidiary as an Unrestricted Subsidiary) or the corporation acquiring such
assets (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) then such Guarantor shall be deemed
released from all obligations under Article 15 of the Original Indenture
without any further action required on the part of the Trustee or any
Holder. The Trustee shall, at the sole cost and expense of the Company and
upon receipt at the reasonable request of the Trustee of an Opinion of
Counsel that the provisions of Section 15.3 of the Original Indenture have
been complied with, deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an
Officers' Certificate certifying as to the compliance with this Section.
Any Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities and the other obligations of
the Company hereunder as provided in Article 15 of the Original Indenture.
(24) The following sections of this Supplemental Indenture shall be subject
to the provisions of Section 18.3 of the Original Indenture specifically and the
provisions of Article 18 of the Original Indenture generally:
Sections 1.01(13)(a), (b), (c), (d), (e), (f), (g), (h), (j), (k) and
subclause (d) of clause (2) of Section 15.
(25) In addition to the matters included herein and in the Indenture, the
following is considered to be a term of the Notes:
During any period of time that the Notes have an Investment Grade
Rating from both of the Rating Agencies and no Default has occurred and is
continuing under the Indenture, the Company and its Restricted Subsidiaries
shall not be subject to the provisions described below under the following
sections hereunder: 1.01(13)(a); 1.01(13)(c); 1.01(13)(d); 1.01(13)(e);
1.01(13)(g); 1.01(13)(h); and 1.01(13)(k) (collectively, the "Suspended
Covenants"); provided, however, such covenants shall not be suspended if the
Investment Grade Rating was obtained, directly or indirectly, by the Company's
merger, consolidation or otherwise with a Person that had an Investment Grade
Rating from either of the Rating Agencies and the Company at such time did not
have an Investment Grade Rating from both of the Rating Agencies and provided,
further, the covenants described under the following sections: Section 7.1 of
the Indenture (as superceded by Section 1.01(15) of the Supplemental Indenture;
1.01(13)(b); 1.01(13)(f); 1.01(13)(i); and 1.01(13)(j) shall not be so
suspended; and provided further, that if the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of the preceding sentence and, subsequently, a Rating Agency which
had given the Notes an Investment Grade Rating withdraws its rating or
downgrades the rating assigned to the Notes below the Investment Grade Ratings
so that the Notes do not have an Investment Grade Rating from both Rating
Agencies, or a Default (other than with respect to the Suspended Covenants)
occurs and is continuing, the Company and its Restricted Subsidiaries shall
thereafter again be subject to the Suspended Covenants, subject to the terms,
conditions and obligations set forth in this Supplemental Indenture and in the
Indenture (each such date of reinstatement being the "Reinstatement Date"),
including those set forth in the preceding sentence.
18
Compliance with the Suspended Covenant with respect to Restricted Payments made
after the Reinstatement Date shall be calculated in accordance with the terms of
the covenant described under Section 1.01(13)(d) as though such covenant had
been in effect during the entire period of time from which the Notes are issued.
As a result, during any period in which the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants, the Notes shall be
entitled to substantially reduced covenant protection.
Section 1.02 SECTION FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form of
---------
Note representing the Company's Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a specimen
---------
certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a specimen
---------
certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a specimen
---------
certificate from acquiring institutional accredited investor.
(5) The form of Guarantee shall be as set forth in Section 2.3 of the
Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
Section 2.01 SECTION GENERAL. Sections 2.4, 3.2 and 3.3 of the Indenture
are hereby supplemented as follows:
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Supplemental Indenture and the Company,
the Guarantors and the Trustee, by their execution and delivery of this
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Supplemental Indenture, the provisions of this
Supplemental Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of
19
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.02 of this Supplemental Indenture.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
Section 2.02 SECTION REGISTRATION, TRANSFER AND EXCHANGE. Section 3.5 of
the Indenture is hereby modified and superseded in its entirety as follows in
respect of the Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee, or (iii) there has occurred and is
continuing a Default or Event of Default with respect to the Notes. Upon the
occurrence of either of the preceding events in (i), (ii) or (iii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 3.6 and 3.4 of the Indenture. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.02 or Section 3.6 or 3.4 of the
Indenture, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.02(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.02(b), (c) or (f) of
this Supplemental Indenture.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Beneficial interests in
the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth in this Supplemental Indenture to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
20
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.02(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this
Supplemental Indenture, the requirements of this Section 2.02(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Supplemental
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.02(h) of this Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.02(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate
21
in the form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
Holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.02(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder of the beneficial interest to be transferred,
in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the applicable
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the
22
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in this
Supplemental Indenture and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any Holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-
U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect
23
set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed
in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.02(h) of this
Supplemental Indenture, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Restricted Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.02(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Restricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Restricted Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.02(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A Holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
24
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in this
Supplemental Indenture and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any Holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.02(b)(ii) of this Supplemental Indenture,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.02(h) of this
Supplemental Indenture, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
25
Note issued in exchange for a beneficial interest pursuant to this Section
2.02(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.02(c)(iii) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests in
Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
26
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the applicable
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
27
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in this
Supplemental Indenture and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.02(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Unrestricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from an Unrestricted Definitive Note
or a Restricted Definitive Note, as the case may be, to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 3.3 of the Indenture, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Unrestricted Definitive
Notes or Restricted Definitive Notes, as the case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.02(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
28
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable Registration
Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
29
and in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained in this Supplemental Indenture and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance
with the applicable Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 3.3, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not broker-
dealers, (y) they are not participating in a distribution of the Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Supplemental Indenture unless
specifically stated otherwise in the applicable provisions of this Supplemental
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
30
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE, IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.02 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
31
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.4, 8.6 and 11.7 of the Indenture and subsection 13(a) and (b)
of Section 1.01 of this Supplemental Indenture).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits of the Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Registrar shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 11.3 of the Indenture and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or (C) to
register the transfer of or to exchange a Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 3.3 of the Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02 to
effect a registration of transfer or exchange may be submitted by
facsimile.
ARTICLE III.
DEFINITIONS
32
Section 3.01 SECTION ADDITIONAL DEFINITIONS. In addition to the
definitions set forth in Article I of the Indenture, the Notes shall include the
following additional definitions, which, in the event of a conflict with the
definition of terms in the Indenture, the definitions in this Supplemental
Indenture, shall control:
"144A Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of,
the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule
144A.
"2006 Notes" means the Company's 10 7/8% Senior Subordinated Notes due
2006.
"Acquired Debt" means, with respect to any specified Person: (1)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or
in contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and (2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person
(limited to the maximum amount of liability of the specified Person with
respect to such Lien).
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures
of the Depository, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-
leaseback transaction) of (i) shares of Capital Stock of a Restricted
Subsidiary of the Company (other than directors' qualifying shares) or (ii)
property or assets of the Company or any Restricted Subsidiary of the
Company; provided, however, that an Asset Disposition shall not include (a)
any sale, transfer or other disposition of shares of Capital Stock,
property or assets by a Restricted Subsidiary of the Company to the Company
or to any Guarantor, (b) any sale, transfer or other disposition of
defaulted receivables for collection or any sale, transfer or other
disposition of property or assets in the ordinary course of business, (c)
any isolated sale, transfer or other disposition that does not involve
aggregate consideration in excess of $500,000 individually, (d) the grant
in the ordinary course of business of any non-exclusive license of patents,
trademarks, registrations therefor and other similar intellectual property,
(e) any Lien (or foreclosure thereon) securing Indebtedness to the extent
that such Lien is granted in compliance with Section 1.01(13)(f) above, (f)
any Restricted Payment permitted by Section 1.01(13)(d) above, (g) any
disposition of assets or property in the ordinary course of business to the
extent such property or assets are obsolete, worn-out or no longer useful
in the Company's or any of its Subsidiaries' business, (h) any sale and
leaseback of the Company's principal corporate headquarters consummated
within 180 days after the completion of the construction thereof, or (i)
any Qualified Securitization Transaction.
33
"Average Life" means, as of the date of determination, with respect to
any Indebtedness for borrowed money or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the number of years
from the date of determination to the dates of each successive scheduled
principal or liquidation value payments of such Indebtedness or Preferred
Stock, respectively, and the amount of such principal or liquidation value
payments, by (ii) the sum of all such principal or liquidation value
payments.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Capital Lease Obligation" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which
are required to be classified and accounted for as a capital lease or
liability on the face of a balance sheet of such Person in accordance with
GAAP. The amount of such obligations shall be the capitalized amount
thereof in accordance with GAAP and the stated maturity thereof shall be
the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock
of such Person (including any Preferred Stock outstanding on the Issue
Date) ; provided that the Trust Preferred Securities shall not be
considered Capital Stock of the Company.
"Clearstream" means Clearstream Banking SA.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as of the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock or any
other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" of any Person
means for any period the Consolidated Net Income of such Person and its
Restricted Subsidiaries for such period increased (to the extent
Consolidated Net Income for such period has been reduced thereby) by the
sum of (without duplication) (i) Consolidated Interest Expense of such
Person and its Restricted Subsidiaries for such period, plus (ii)
Consolidated Income Tax Expense of such Person for such period, plus (iii)
the consolidated depreciation and amortization expense included in the
income statement of such Person and its Restricted Subsidiaries for such
period, plus (iv) any other non-cash charges to the extent deducted from or
reflected in such Consolidated Net Income except for any non-cash charges
that represent accruals of, or reserves for, cash disbursements to be made
in any future accounting period.
"Consolidated Cash Flow Ratio" of any Person means for any period the
ratio of (i) Consolidated Cash Flow Available for Fixed Charges of such
Person for such period to (ii) the sum of (A) Consolidated Interest Expense
of such Person and its Restricted Subsidiaries for such period, plus (B)
the annual interest expense with respect to any Indebtedness proposed to be
Incurred by such Person or its Restricted Subsidiaries, minus (C)
Consolidated Interest Expense of such Person to the extent included in
clause (ii) (A) with respect to any Indebtedness that will no longer be
outstanding as a result of the Incurrence of the Indebtedness proposed to
be
34
Incurred, plus (D) the annual interest expense with respect to any other
Indebtedness Incurred by such Person or its Restricted Subsidiaries since
the end of such period to the extent not included in clause (ii) (A), minus
(E) Consolidated Interest Expense of such Person and its Restricted
Subsidiaries to the extent included in clause (ii) (A) with respect to any
Indebtedness that no longer is outstanding as a result of the Incurrence of
the Indebtedness referred to in clause (ii) (D); provided, however, that in
making such computation, the Consolidated Interest Expense of such Person
and its Restricted Subsidiaries attributable to interest on any
Indebtedness bearing a floating interest rate shall be computed on a pro
forma basis as if the rate in effect on the date of computation (after
giving effect to any hedge in respect of such Indebtedness that will, by
its terms, remain in effect until the earlier of the maturity of such
Indebtedness or the date one year after the date of such determination) had
been the applicable rate for the entire period; provided, further, however,
that, in the event such Person or any of its Restricted Subsidiaries has
made any Asset Dispositions or acquisitions of assets not in the ordinary
course of business (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) during or after such period and
on or prior to the date of measurement, such computation shall be made on a
pro forma basis as if the Asset Dispositions or acquisitions had taken
place on the first day of such period. Calculations of pro forma amounts in
accordance with this definition shall be done in accordance with Rule 11-02
of Regulation S-X under the Securities Act of 1933 or any successor
provision.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its
Restricted Subsidiaries for such period calculated on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" for any Person means for any period
the consolidated interest expense included in a consolidated income
statement (without deduction of interest or finance charge income of such
Person except to the extent such interest or finance charge income is
received by the Company or a Restricted Subsidiary in cash) of such Person
and its Restricted Subsidiaries except to the extent such net income is
received by the Company or a Restricted Subsidiary in cash of such Person
for such period calculated on a consolidated basis in accordance with GAAP,
plus discount on receivables sold or other discount related to any
receivables securitization transaction (including any Qualified
Securitization Transaction), plus the product of (a) all dividends or
distributions, whether paid or accrued and whether or not in cash, on any
series of preferred stock or the Trust Preferred Securities of such Person
or any of its Restricted Subsidiaries, other than dividends on Equity
Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary,
multiplied by (to the extent such dividends or distributions are not
deductible for federal income tax purposes) (b) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person for such period determined
on a consolidated basis in accordance with GAAP; provided, however, that
there shall be excluded therefrom (a) the net income (or loss) of any
Person acquired by such Person or a Restricted Subsidiary of such Person in
a pooling-of-interests transaction for any period prior to the date of such
transaction, (b) the net income (but not net loss) of any Restricted
Subsidiary of such Person which is subject to restrictions which prevent or
limit the payment of dividends or the making of distributions to such
Person to the extent of such restrictions (regardless of any waiver
thereof), (c) the net income of any Person that is not a Restricted
Subsidiary of such Person, except to the extent of the amount of dividends
or other distributions representing such Person's proportionate share of
such other
35
Person's net income for such period actually paid in cash to such Person by
such other Person during such period, (d) gains or losses on Asset
Dispositions by such Person or its Restricted Subsidiaries, (e) all
extraordinary gains and extraordinary losses determined in accordance with
GAAP, (f) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets,
any earnings (or losses) of the successor corporation prior to such
consolidation, merger or transfer of assets and (g) the Net Income (but not
loss) of any Unrestricted Subsidiary will be excluded, whether or not
distributed to the specified Person or one of its Subsidiaries.
"Continuing Director" means a director who either was a member of the
Board of Directors of the Company on the Issue Date or who became a
director of the Company subsequent to the Issue Date and whose election, or
nomination for election by the Company's shareholders, was duly approved by
a majority of the Continuing Directors then on the Board of Directors of
the Company, either by a specific vote or by approval of the proxy
statement issued by the Company on behalf of the entire Board of Directors
of the Company in which such individual is named as nominee for director.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.02 of this
Supplemental Indenture, substantially in the form of Exhibit A hereto
except that such Note shall not bear the Global Note Legend and shall not
have the "Schedule of Exchanges of Interests in the Global Note" attached
thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 3.1(b) of
the Indenture as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Supplemental Indenture.
"Designated Senior Indebtedness" means (i) so long as the Revolving
Credit Facility is outstanding, the Senior Indebtedness incurred under the
Revolving Credit Facility and (ii) thereafter, any other Senior
Indebtedness which has at the time of initial issuance an aggregate
outstanding principal amount in excess of $25 million which has been
designated as Designated Senior Indebtedness by the Board of Directors of
the Company at the time of initial issuance in a resolution delivered to
the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the final maturity of the
Notes.
36
"Eligible Accounts Receivable" means the face value of all "eligible
receivables" of the Company and its Restricted Subsidiaries party to any
credit agreement constituting the Revolving Credit Facility (as such term
is defined for purposes of such credit agreement) .
"Eligible Inventory" means the face value of all "eligible inventory"
of the Company and its Restricted Subsidiaries party to any credit
agreement constituting the Revolving Credit Facility (as such term is
defined for purposes of such credit agreement).
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.02(f) of this Supplemental Indenture.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Global Note Legend" means the legend set forth in Section 2.02(g)(ii),
which is required to be placed on all Global Notes issued under this
Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in
the form of Exhibit A hereto issued in accordance with Section 2.01,
2.02(b)(iv), 2.02(d)(ii) or 2.02(f) of this Supplemental Indenture.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note bearing the Private Placement
Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Purchasers" means, with respect to the Notes, Xxxxxx Brothers
Inc., Banc of America Securities LLC, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated, First Union Securities, Inc., Xxxxxxx, Sachs & Co. and X.X.
Xxxxxx Securities Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
37
"Investment" by any Person means any direct or indirect loan, advance,
guarantee or other extension of credit or capital contribution to (by means
of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities
or evidence of Indebtedness issued by any other Person.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's and BBB (or the equivalent) by S&P.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders
in connection with the Exchange Offer.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Indebtedness or other obligations relating to
such properties or assets or received in any other non-cash form) therefrom
by such Person, including any cash received by way of deferred payment or
upon the monetization or other disposition of any non-cash consideration
(including notes or other securities) received in connection with such
Asset Disposition, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred and all federal, state,
foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Indebtedness which is secured
by such assets (other than Senior Indebtedness or Guarantor Senior
Indebtedness) in accordance with the terms of any Lien upon or with respect
to such assets or which must by the terms of such Lien, 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, (iii) all
payments made with respect to liabilities associated with the assets which
are the subject of the Asset Disposition, including, without limitation,
trade payables and other accrued liabilities, (iv) appropriate amounts to
be provided by such Person or any Restricted Subsidiary thereof, as the
case may be, as a reserve in accordance with GAAP against any liabilities
associated with such assets and retained by such Person or any Restricted
Subsidiary thereof, as the case may be, after such Asset Disposition,
including, without limitation, liabilities under any indemnification
obligations and severance and other employee termination costs associated
with such Asset Disposition, until such time as such amounts are no longer
reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Available Proceeds to be allocated in
accordance with the provisions of clause (iii) of the covenant of the
Indenture described under Section 1.01(13)(a)) and (v) all distributions
and other payments made to minority interest holders in Subsidiaries of
such Person or joint ventures as a result of such Asset Disposition.
"Non-Recourse Debt" means Indebtedness:(1) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a
guarantor or otherwise, or (c) constitutes the lender; and (2) no default
with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action
38
against an Unrestricted Subsidiary) would permit upon notice, lapse of time
or both any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment of the Indebtedness to be accelerated or payable prior to
its stated maturity; and (3) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Supplemental Indenture.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the register for the Notes on the date of the Offer offering
to purchase up to the principal amount of Notes specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to the
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be not less than 30 days nor more than 60 days after the date
of such Offer and a settlement date (the "Purchase Date") for purchase of
Notes within five Business Days after the Expiration Date. The Company
shall notify the Trustee at least 15 Business Days (or such shorter period
as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company. The Offer shall contain all the
information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Section of the Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Notes offered to
be purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such amount has been determined
pursuant to the Section of the Indenture requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to the Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
39
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note being accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender all or any portion of a Note
pursuant to the Offer to Purchase will be required to surrender such Note
at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Note being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the
Holder tendered, the certificate number of the Note the Holder tendered and
a statement that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and (b)
if Notes in an aggregate principal amount in excess of the Purchase Amount
are tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased) ; and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"pari passu" when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person means that each such Debt:
(a) either (i) is not subordinated in right of payment to any other Debt of
such Person or (ii) is subordinate in right of payment to the same Debt of
such Person as is the other Debt and is so subordinate to the same extent
and (b) is not subordinate in right of payment to the other Debt or to any
Debt of such Person as to which the other Debt is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).
"Permitted Business" means any business (including stock or assets)
that derives a majority of its revenues from the business engaged in by the
Company and its Restricted Subsidiaries on the date of original issuance of
the Notes and/or activities that are reasonably
40
similar, ancillary or related to, or a reasonable extension, development or
expansion of, the businesses in which the Company and its Restricted
Subsidiaries are engaged on the date of original issuance of the Notes,
including, without limitation, the third party logistics business.
"Permitted Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or any
governmental entity or agency or political subdivision thereof (provided,
that the good faith and credit of the United States of America is pledged
in support thereof), maturing within one year of the date of purchase; (ii)
Investments in commercial paper issued by corporations or financial
institutions maturing within 180 days from the date of the original issue
thereof, and rated "P-l" or better by Xxxxx`s or "A-1" or better by S&P or
an equivalent rating or better by any other nationally recognized
securities rating agency; (iii) Investments in certificates of deposit
issued or acceptances accepted by or guaranteed by any bank or trust
company organized under the laws of the United States of America or any
state thereof or the District of Columbia, in each case having capital,
surplus and undivided profits totaling more than $500,000,000, maturing
within one year of the date of purchase; (iv) Investments representing
Capital Stock or obligations issued to the Company or any of its
Subsidiaries in the course of the good faith settlement of claims against
any other Person or by reason of a composition or readjustment of debt or a
reorganization of any debtor of the Company or any of its Subsidiaries; (v)
deposits, including interest-bearing deposits, maintained in the ordinary
course of business in banks; (vi) any acquisition of the Capital Stock of
any Person; provided, however, that after giving effect to any such
acquisition such Person shall become a Restricted Subsidiary of the
Company; (vii) trade receivables and prepaid expenses, in each case arising
in the ordinary course of business; provided, however, that such
receivables and prepaid expenses would be recorded as assets of such Person
in accordance with GAAP; (viii) endorsements for collection or deposit in
the ordinary course of business by such Person of bank drafts and similar
negotiable instruments of such other Person received as payment for
ordinary course of business trade receivables; (ix) any interest swap or
hedging obligation with an unaffiliated Person otherwise permitted by the
Indenture; (x) Investments received as consideration for an Asset
Disposition in compliance with the provisions of the Indenture described
under Section 1.01(13)(a) above; (xi) Investments for which the sole
consideration provided is Capital Stock of the Company (other than
Disqualified Stock); (xii) loans and advances to employees made in the
ordinary course of business; (xiii) Investments outstanding on the Issue
Date; (xiv) so long as no Default or Event of Default has occurred and is
continuing, Investments in Persons or entities in an aggregate outstanding
amount (valued at the cost thereof) not to exceed at any time $25 million,
(xv) payments on the guarantee referred to in the last sentence of the
definition of the term "Indebtedness" and (xvi) Investments made in or by
any Securitization Subsidiary in connection with and required pursuant to
the terms of any Qualified Securitization Transaction or in the Special
Purpose Trust in connection with and required by the terms of the Trust
Obligations.
41
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or
winding up of such Person, to shares of Capital Stock of any other class of
such Person.
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Notes issued under this Supplemental
Indenture except where otherwise permitted by the provisions of this
Supplemental Indenture.
"Purchase Date" has the meaning set forth in the definition of "Offer
to Purchase."
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Rating Agency" means each of S&P and Xxxxx'x, or if S&P or Xxxxx'x or
both shall not make a rating on the notes publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be,
selected by us (as certified by a resolution of the Company's Board of
Directors) which shall be substituted for S&P or Xxxxx'x, or both, as the
case may be.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation, 5% or more
of the equity interest in such Person) or (b) 5% or more of the combined
voting power of the Voting Stock of such Person.
"Replacement Assets" means properties or assets used or useful in a
Permitted Business.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
42
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard & Poor's Ratings Group, Inc., or any successor to
the rating agency business thereof.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Trust Securities" means the Trust Preferred Securities and the Junior
Subordinated Debentures.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note substantially
in the form of Exhibit A attached hereto that bears the Global Note Legend
and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and registered
in the name of the Depositary, representing a series of Notes that do not
bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company (or any
successor to any of them) that is designated by the Board of Directors of
the Company as an Unrestricted Subsidiary pursuant to a Board Resolution,
but only to the extent that such Subsidiary: (1) has no Indebtedness other
than Non-Recourse Debt; (2) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (3) is a Person with respect
to which neither the Company nor any of its Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person's financial condition
or to cause such Person to achieve any specified levels of operating
results; (4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries; and (5) has at least one director on its Board of
Directors that is not a director or executive officer of the Company or any
of its Restricted Subsidiaries and has at least one executive officer that
is not a director or executive officer of the Company or any of its
Restricted Subsidiaries.
43
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation
and an officers' certificate certifying that such designation complied with
the preceding conditions and was permitted by the covenant described under
Section 1.01(13)(d) of this Supplemental Indenture. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of the indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under Section
1.01(13)(c) of this Supplemental Indenture the Company will be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only
be permitted if (1) such Indebtedness is permitted under the covenant
described under Section 1.01(13)(c) of this Supplemental Indenture,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event
of Default would be in existence following such designation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments or principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 SECTION DEFINITIONS. Capitalized terms used but not defined
in this Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
Section 4.02 SECTION CONFIRMATION OF INDENTURE. The Indenture, as
modified, supplemented and superseded by this Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture and this Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
(References herein to the Indenture shall be deemed to be to the Indenture, as
modified, supplemented and superseded by this Supplemental Indenture).
Section 4.03 SECTION CONCERNING THE TRUSTEE. The Trustee assumes no
duties, responsibilities or liabilities by reason of this Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
44
Section 4.04 SECTION GOVERNING LAW. This Supplemental Indenture, the
Indenture and the Notes shall be governed by and construed in accordance with
the law of the State of New York without giving effect to any provisions thereof
relating to conflicts of law.
Section 4.05 SECTION SEPARABILITY. In case any provision in this
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 4.06 SECTION COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
45
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXX & MINOR, INC.
By:_________________________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief Operating Officer
XXXXX & MINOR MEDICAL, INC.
XXXXX & MINOR WEST, INC.
NATIONAL MEDICAL SUPPLY CORPORATION
KOLEY'S MEDICAL SUPPLY, INC.
STUART MEDICAL, INC.
By:_________________________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief Operating Officer
SUNTRUST BANK, as Trustee
By:_________________________________________
Name:
Title:
EXHIBIT A
[Face of Note]
--------------------------------------------------------------------------------
Rule 144A CUSIP __________
Regulation S CUSIP __________
IAI CUSIP __________
8 1/2% Senior Subordinated Notes due 2011
No. ______ $____________
XXXXX & MINOR, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on July 15, 2011.
Interest Payment Dates: January 15 and July 15, commencing January 15, 2002
Record Dates: January 1 and July 1
Dated: July 2, 2001
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated _________, 2001
XXXXX & MINOR, INC.
By:________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
SUNTRUST BANK,
as Trustee
By:__________________________
Authorized Signatory
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[Back of Note]
8 1/2% Senior Subordinated Notes due 2011
[Insert the Global Note Legend, if applicable pursuant to the provisions of
the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Xxxxx & Minor, Inc., a Virginia corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 8 1/2% per
annum from the date hereof until maturity and shall pay the Liquidated Damages,
if any, payable pursuant to the Registration Rights Agreement referred to below.
The Company will pay interest and Liquidated Damages semi-annually in arrears on
January 15 and July 15 of each year beginning January 15, 2002, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be January 15, 2002. Interest will be
computed on the basis of a 360 day year of twelve 30 day months.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are
registered Holders of Notes at the close of business on the January 1 or July 1
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date. The Notes will be
payable as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Liquidated
Damages on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent at least
10 Business Days prior to the applicable payment date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, SunTrust Bank, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
A-3
4. Indenture. The Company issued the Notes under an Indenture dated as of
July 2, 2001 (the "Original Indenture"), as amended by the Supplemental
Indenture dated as of July 2, 2001 (the "Supplemental Indenture" and together
with the Original Indenture, the "Indenture"), each among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $200 million in aggregate principal amount.
5. Subordination. The Notes are subordinated to Senior Indebtedness, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid in full before any payment may be made in respect of
the Notes or any other Obligation in respect of Senior Indebtedness. Each Holder
by accepting a Note 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. The Indenture also provides that, under
certain circumstances, the Company will be prohibited from making any payments
in respect of the Notes or any other Obligation in respect of Senior Debt if the
Company is in default on any Senior Debt.
6. Optional Redemption.
(a) Except as set forth in subparagraphs (b), (c) and (d) of this
Paragraph 5, the Company shall not have the option to redeem the Notes prior to
the final maturity of such Notes.
(b) The Notes shall be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after July 15, 2006 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at his address appearing in the register for the
Notes, in amounts of $1,000 or an integral multiple of $1,000, at the following
redemption prices (expressed as percentages of principal amount) plus accrued
interest and Liquidated Damages, if any, to but excluding the date fixed for
redemption (subject to the right of Holders of record on the relevant Record
Date to receive interest due on an interest payment date that is on or prior to
the date fixed for redemption), if redeemed during the 12-month period beginning
on July 15 of the years indicated:
Redemption
Year Price
---- -----
2006.............................. 104.250%
2007.............................. 102.833%
2008.............................. 101.417%
2009 and thereafter............... 100.000%
(c) In addition, prior to July 15, 2004, the Company may redeem up to 35%
of the original principal amount of the Notes with the net cash proceeds
received by the Company from a public offering of Capital Stock of the Company
(other than Disqualified Stock), at a redemption price (expressed as a
percentage of the principal amount) of 108.500% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, to the date
fixed for redemption; provided, however, that
A-4
at least 65% of the original principal amount of the Notes remains outstanding
immediately after any such redemption (excluding any Notes owned by the Company
or any of its Affiliates). Notice of redemption pursuant to this paragraph must
be mailed to holders of Notes not later than 60 days following the consummation
of such public offering.
(d) Selection of Notes for any partial redemption shall be made by the
Trustee, in accordance with the rules of any national securities exchange on
which the Notes may be listed or, if the Notes are not so listed, pro rata or by
lot or in such other manner as the Trustee shall deem appropriate and fair.
Notes in denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000. Notice of redemption shall be mailed before the
date fixed for redemption to each holder of Notes to be redeemed at his or her
registered address. On and after the date fixed for redemption, interest shall
cease to accrue on Notes or portions thereof called for redemption set forth in
paragraph 7 below, the Company shall not be required to make mandatory
redemption payments with respect to the Notes.
7. Repurchase at Option of Holder. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
but not more than 60 days before the redemption date to each Holder whose Notes
are to be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000, unless all
of the Notes held by a Holder are to be redeemed. On and after the redemption
date interest ceases to accrue on Notes or portions thereof called for
redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
11. Amendment, Supplement and Waiver. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the Guarantors and the rights of
the Holders of the Securities under the Indenture at any time by the Company,
the Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time.
A-5
12. Defaults and Remedies. Events of Default include: (i) default in the
payment of interest on, or Liquidated Damages with respect to, any Note when the
same becomes due and payable and such default continues for a period of 30 days
(whether or not prohibited by Article 17 of the Original Indenture); (ii)
failure to pay principal of or premium, if any, on the Notes when due (whether
or not prohibited by Article 17 of the Original Indenture); (iii) default in the
payment of principal of and interest on Notes required to be purchased pursuant
to an Offer to Purchase described in Subsections 13(a) and (b) of Section 1.01
of the Supplemental Indenture when due and payable (whether or not prohibited by
the Article 17 of the Original Indenture); (iv) failure to perform or comply
with any of the provisions described under Article 7 of the Original Indenture
(as superseded by Subsection 15 of Section 1.01 of the Supplemental Indenture);
(v) failure to perform any other covenant or warranty of the Company under the
Indenture or the Notes, continued for 30 days after written notice to the
Company by the Trustee or Holders of at least 25% in principal amount of the
then Outstanding Notes as provided in the Indenture; (vi) a default under the
terms of one or more instruments evidencing or securing Indebtedness of the
Company or any Restricted Subsidiary of the Company having an outstanding
principal amount of $10 million or more individually or in the aggregate that
has resulted in the acceleration of the payment of such Indebtedness or failure
to pay principal when due at the stated maturity of any such Indebtedness; (vii)
the rendering of a final judgment or judgments, not subject to appeal, against
the Company or any Restricted Subsidiary of the Company in an amount of $5
million or more (net of any amounts covered by reputable and creditworthy
insurance companies) which remains undischarged or unstayed for a period of 60
days after the date on which the right to appeal has expired; (viii) certain
events of bankruptcy, insolvency or reorganization affecting the Company, or any
Guarantor; and (ix) the Guarantee of any Guarantor ceases to be in full force
and effect (other than in accordance with the terms of such Guarantee and the
Indenture) or declared null and void and unenforceable or found to be invalid or
any Guarantor denies its liability under its Guarantee (other than by reason of
a release of such Guarantor from its Guarantee in accordance with the terms of
the Indenture and such Guarantee). If any Event of Default (other than an Event
of Default of the type described in clause (viii) above) occurs and is
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the then Outstanding Notes may accelerate the maturity of all such
Notes; provided, however, that after such acceleration, but before a judgment or
decree based on acceleration, the Holders of a majority in aggregate principal
amount of Outstanding Notes may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
If an Event of Default of the type described in clause (viii) above occurs, the
principal of any accrued interest on the Outstanding Notes will become
immediately due and payable. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, including
the provision for the identification of the Trustee, Holders of a majority in
principal amount of the then Outstanding Notes may direct the Trustee in its
exercise of any trust or power. In accordance with the terms of the Indenture,
the Trustee shall, within 30 days after the occurrence of any Event of Default
with respect to the Notes, give the Holders thereof notice of all uncured Events
of Default known to it; provided, however, that, except in the case of an Event
of Default in payment with respect to the Notes or an Event of Default in
complying with Section 7.1 of the Original Indenture (as superceded by
Subsection 15 of Section 1.01 of the Supplemental Indenture), the Trustee shall
be protected in withholding
A-6
such notice if and so long as the Board of Directors or responsible officers of
the Trustee in good faith determine that the withholding of such notice is in
the interest of the Holders of the Notes. The Holders of a majority in aggregate
principal amount of the Outstanding Notes, on behalf of all Holders of Notes,
may waive compliance by the Company with certain restrictive provisions of the
Indenture. Subject to certain rights of the Trustee, as provided in the
Indenture, the Holders of a majority in aggregate principal amount of the
Outstanding Notes, on behalf of all Holders of Notes, may waive any past default
under the Indenture, except a default in the payment of principal, premium, or
interest or a default arising from failure to purchase any Note tendered
pursuant to an Offer to Purchase, or a default in respect of a provision that
under the Indenture cannot be modified or amended without the consent of the
Holder of each Outstanding Note.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or shareholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. 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 right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes
shall have all the rights set forth in the Registration Rights Agreement
relating to the Notes dated as of July 2, 2001, among the Company, the
Guarantors and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP 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 Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-7
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
XXXXX & MINOR, INC.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention:
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ____________________
Your Signature: __________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee*: ________________
*Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Subsection 13(a) or 13(b) of Section 1.01 of the Supplemental Indenture, check
the appropriate box below:
A-8
[_] Subsection 13(a) [_] Subsection 13(b)
If you want to elect to have only part of the Note purchased by the Company
pursuant to Subsection 13(a) or Section 13(b) of Section 1.01 of the
Supplemental Indenture, state the amount you elect to have purchased:
$______________
Date: ________________________
Your Signature: ___________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.: ___________________
Signature Guarantee*: _________________
*Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
Schedule of Exchanges of Interests in the Global Note
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount
Amount of decrease Amount of increase of this Global Signature of
in Principal in Principal Note following authorized officer
Amount of this Amount of this such decrease (or of Trustee or Note
Date of Exchange Global Note Global Note increase) Custodian
------------------ ------------------ ------------------- ----------------- -------------------
A-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxx & Minor, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
SunTrust Bank
000 Xxxx Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Re: 8 1/2% Senior Subordinated Notes due 2001
-----------------------------------------
Reference is hereby made to the Indenture, dated as of July 2, 2001, as
amended by that First Supplemental Indenture, dated as of July 2, 2001
(collectively, the "Indenture"), between Xxxxx & Minor, Inc., as issuer (the
"Company"), and SunTrust Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in
------------------------------------------------------------------
the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer
---------------------------------------------------------------
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in
------------------------------------------------------------------
the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
--------------------------------------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
B-1
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in the IAI Global Note or a Definitive Note pursuant to any provision
------------------------------------------------------------------------------
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
----------------------------------------------------------
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect
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that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in
------------------------------------------------------------------
an Unrestricted Global Note or of an Unrestricted Definitive Note.
-----------------------------------------------------------------
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
B-3
___________________________________
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated:_________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _____________), or
(ii) [_] Regulation S Global Note (CUSIP ___________), or
(iii) [_] IAI Global Note (CUSIP ); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 000X Xxxxxx Xxxx (XXXXX 000000XX0), xx
(xx) [_] Regulation S Global Note (CUSIP X00000XX0), or
(iii) [_] IAI Global Note (CUSIP _______); or
(iv) [_] Unrestricted Global Note (CUSIP ______); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxx & Minor, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
SunTrust Bank
[Address]
Re: 8 1/2% Senior Subordinated Notes due 2011
-----------------------------------------
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of July 2, 2001, as
amended by that First Supplemental Indenture, dated as of July 2, 2001
(collectively, the "Indenture"), between Xxxxx & Minor, Inc., as issuer (the
"Company"), and SunTrust Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
--------------------------------------------------------------------
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
--------------------------------------------------------------------------------
in an Unrestricted Global Note.
------------------------------
(a) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive
C-1
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
------------------------------------------------------------------
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
-------------------------------------------------------------------------------
in Restricted Global Notes.
--------------------------
(a) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] [_] 144A Global Note, [_] Regulation S Global Note, [_] IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United
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States. Upon consummation of the proposed Exchange in accordance with the terms
of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Xxxxx & Minor, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
SunTrust Bank
[Address]
Re: 8 1/2% Senior Subordinated Notes due 2011
-----------------------------------------
Reference is hereby made to the Indenture, dated as of July 2, 2001, as
amended by that Supplemental Indenture, dated as of July 2, 2001 (collectively,
the "Indenture"), between Xxxxx & Minor, Inc., as issuer (the "Company"), and
SunTrust Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global
D-1
Note from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
________________________________________________
[Insert Name of Accredited Investor]
By:______________________________________________
Name:
Title:
Dated:_________________
D-2
