XXXXXX MEDICAL TECHNOLOGY, INC.
and
STATE STREET BANK AND TRUST COMPANY
as Successor Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of August 6, 1997
to INDENTURE
Dated as of June 30, 1993
---------------------------------------------------
$85,000,000
10 3/4% Series A Senior Secured Notes due July 1, 2000
10 3/4% Series B Senior Secured Notes due July 1, 2000
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This Third Supplemental Indenture, dated as of August 6, 1997, is by
and between Xxxxxx Medical Technology, Inc., a Delaware corporation, (the
"Company"), and State Street Bank and Trust Company, a Massachusetts trust
company, as successor Trustee (the "Trustee").
Recitals
WHEREAS, the Company and the Trustee are parties to the Indenture,
dated as of June 30, 1993, as amended by the First Supplemental Indenture, dated
as of November 1, 1993 and the Second Supplemental Indenture, dated as of
September 28, 1995, (the "Existing Indenture"), and as amended by this Third
Supplemental Indenture (the "Indenture"), providing for the issuance thereunder
by the Company, and the authentication and delivery by the Trustee, of the
Company's 10 3/4% Series A Senior Secured Notes due July 1, 2000 (and providing
for the future issuance, authentication and delivery of the Company's 10 3/4%
Series B Senior Secured Notes due July 1, 2000) (the "Securities"). Capitalized
terms used and not otherwise defined in this Third Supplemental Indenture shall
have the meanings respectively assigned to them in the Existing Indenture.
WHEREAS, the Company has commenced an exchange offer (the "Exchange
Offer") for the Securities and, in connection therewith, a solicitation of exit
consents (the "Exit Consent Solicitation") from the Holders to certain
amendments to the Existing Indenture as set forth in the Offering Circular and
Exit Consent Solicitation Statement of the Company dated August 6, 1997 (the
"Proposed Amendments");
WHEREAS, pursuant to the Exit Consent Solicitation, the Holders of at
least a majority in aggregate principal amount of the Securities outstanding
have consented (the "Requisite Consent") to the amendments effected by this
Third Supplemental Indenture in accordance with the provisions of the Existing
Indenture; and
WHEREAS, the Third Supplemental Indenture evidences the Proposed
Amendments described in the Offering Circular.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein and other good and valuable consideration (the
receipt and adequacy of which are hereby acknowledged), the Company and the
Trustee hereby agree as follows:
Section 1. Amendments to Existing Indenture and the
Securities. The amendments set forth in this Third Supplemental Indenture
shall become operative on the date that the Company notifies the
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Depository and the Trustee in connection with the Exchange Offer that the
Securities tendered are accepted for exchange pursuant to the Exchange Offer
(the "Acceptance Date"). If a majority in aggregate principal amount of the
Securities (the "Requisite Consent") are not accepted for exchange by the
Company for any reason and the Exchange Offer not effected, the amendments set
forth herein will not become operative. The Article and Section headings in this
Third Supplemental Indenture are for convenience only and shall not affect the
construction of the Existing Indenture or this Third Supplemental Indenture. The
Existing Indenture is hereby amended as follows:
1.1 Deletion of Sections. From and after the Acceptance Date, the
Existing Indenture is hereby automatically amended by deleting in their entirety
the following Sections of the Existing Indenture:
(a) Section 4.04. Stay, Extension and Usury Laws.
(b) Section 4.05. Corporate Existence.
(c) Section 4.06. Taxes.
(d) Section 4.07. Limitations on Restricted Payments.
(e) Section 4.08. Limitations on Incurrence of
Indebtedness and Issuance of Preferred Stock.
(f) Section 4.09. Limitation on Liens.
(g) Section 4.10. Limitation on Granting Liens and
Restrictions on Subsidiary Dividends.
(h) Section 4.13. Transactions with Affiliates.
(i) Section 4.14. Maintenance of Consolidated Net Worth.
(j) Section 4.15. Liquidation.
(k) Section 4.17. Payments for Consent.
(l) Section 4.18. Restrictions on Indirect Subsidiaries.
(m) Section 5.01. When Company May Merge, etc.
All other Articles and Sections of the Existing Indenture shall remain
in effect and shall retain their Article or Section numbers.
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1.2. The following defined terms are hereby added, in their
appropriate alphabetical order, to Section 1.01 of the Existing Indenture:
(a) "New Indenture" means that indenture dated as of the date
thereof by and between the Company and the New Trustee with respect to the New
Notes.
(b) "New Notes" means the Company's Series C and Series D 11
3/4% Senior Secured Step-Up Notes due July 1, 2000.
(c) "New Trustee" means State Street Bank and Trust
Company as Trustee under the New Indenture.
1.3 Addition of a New Section 10.06.
From and after the Acceptance Date, the Existing Indenture is
hereby amended as follows:
(a) Sections 10.06 through 10.12 inclusive are renumbered
to become Sections 10.07 through 10.13 inclusive.
(b) A new Section 10.06 is added to read in its entirety
as follows:
Section 10.06. Sharing of Collateral
(a) Notwithstanding any other provision of this Indenture
or the Collateral Agreements, the Company is
expressly authorized to grant security interests in
the Collateral to the New Trustee or a collateral
agent acting on behalf of the New Trustee, for the
benefit of the holders of the New Notes.
(b) Notwithstanding any other provision of this Indenture
or the Collateral Agreements, the Trustee and the
Collateral Agent hereby agree to enter into an
intercreditor agreement (the "Intercreditor
Agreement") with the New Trustee and the New
Collateral Agent, pursuant to which the benefit of
Collateral will be shared by the Trustee, the
Collateral Agent, the Holders, the New Trustee, the
New Collateral Agent, and the holders of the New
Notes, such sharing to be ratable among the Holders
and the holders of the New Notes, based upon the
aggregate principal amount outstanding of Securities
and New Notes.
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1.4 Deletion of Cross-References and Modification of Certain
Provisions. From and after the Acceptance Date, the Existing Indenture is
hereby automatically amended as follows:
(a) From and after the Acceptance Date, Sections 4.03 and
8.01 are hereby automatically amended to delete the
references made to existing Section 4.04.
(b) From and after the Acceptance Date, Section 5.02 is
hereby automatically amended by deleting in its entirety
the phrase "in accordance with Section 5.01."
(c) From and after the Acceptance Date, Section 6.01 is
hereby automatically amended (i) by deleting in their
entirety existing subsections (3), (4), (5) and (6) and
by renumbering existing subsections (7) and (8) as
subsections (3) and (4) and (ii) by deleting in its
entirety the paragraph beginning with the phrase "A
Default under clauses (3)" and ending with "state that
the notice is a "Notice of Default." Section 7.07 is
hereby automatically amended by replacing references to
existing subsections "6.01(7)" and "6.01(8)" with the
renumbered subsections "6.01(3) and "6.01(4)."
(d) From and after the Acceptance Date, Section 6.03 is
hereby automatically amended by deleting in its entirety
the remainder of the first paragraph following the first
appearance of the term "Securities."
(e) From and after the Acceptance Date, Section 9.01 is
hereby automatically amended by deleting in its entirety
existing subsection (2) and renumbering existing
subsections (3), (4) and (5) as subsections (2), (3) and
(4), respectively.
(f) From and after the Acceptance Date, the definition of
"Transfer Restricted Security" contained in Section 1.01
is hereby automatically amended by inserting the letter
"(g)" after "Section 2.06."
1.5 Deletion of Definitions. From and after the Acceptance Date, the
Existing Indenture is hereby automatically amended by deleting in their entirety
the definitions of each of the following defined terms from Section 1.01 of the
Existing Indenture:
(a) "Acquired Debt"
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(b) "Permitted Liens"
1.6 Deletion of Other Definitions. From and after the Acceptance Date,
the Existing Indenture is hereby automatically amended by deleting in their
entirety the references to definitions of each of the following defined terms
from Section 1.02 of the Existing Indenture.
(a) "Affiliate Transaction"
(b) "Incur"
(c) "Minimum Equity"
(d) "Offer"
(e) "Offer Amount"
(f) "Offer Period"
(g) "Purchase Money Indebtedness"
(h) "Refinance"
(i) "Refinancing Indebtedness"
(j) "Restricted Payments"
1.7 Stop Transfer and Legend. From and after the Acceptance Date, the
Securities may not be transferred prior to the Resale Restriction Termination
Date (as defined below) unless (a) sold to the Company, (b) transferred pursuant
to a registration statement declared effective under the Securities Act of 1933,
as amended (the "Securities Act") or (c) transferred pursuant to another
available exemption from the registration requirements of the Securities Act.
The Company shall have the right to require the delivery of an opinion of
counsel, certification and other information satisfactory to it prior to any
transfer under clause (c) above. Further, the Company shall place a stop
transfer order with the Transfer Agent prohibiting any transfer of the
Securities unless the conditions of clauses (a), (b) or (c) of this subsection
have been met.
From and after the Acceptance Date, the Existing Indenture is hereby
automatically amended by deleting in its entirety existing Section 2.06(g) and
inserting the following in its place:
"(g) Legends. Notwithstanding any
other provision of this Indenture, all
Securities (and all Securities issued in
exchange therefor or substitution thereof
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after the Third Supplemental Indenture takes effect) are
Transfer Restricted Securities for the purposes of the
Indenture and shall bear a legend in substantially the
following form:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT), OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATED PERSON OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, OR (C) PURSUANT TO ANY AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (C), TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION
SATISFACTORY TO IT, AND SUBJECT TO THE REQUIREMENT THAT IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THIS
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SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
1.8 Deletion of Certain Provisions of the Securities.
From and after the Acceptance Date, the Securities are hereby automatically
amended by deleting the following text from Section 12 of the Securities
regarding Defaults and Remedies:
"failure by the Company for 30 days after notice to it to
comply with any of its other agreements in the Indenture, the
Securities, the Registration Rights Agreement or the Collateral
Agreements or, in the case of failure of the Company to maintain its
corporate existence or its consolidated net worth, or to comply with
the restrictions on restricted payments, incurrence of investedness,
asset sales, changes of control or on consolidation, merger or transfer
or sale of substantially all its assets, without such notice or passage
of time; certain defaults under and acceleration prior to maturity of
other indebtedness; certain final judgments which remain undischarged;"
1.9 Additional Amendments. If and to the extent that any provision of
the covenants set forth in the sections and subsections of the Existing
Indenture deleted by Section 1.1 of this Third Supplemental Indenture would
impair the Company's ability to effect the Exchange Offer and the Exit Consent
Solicitation, compliance with such provision is hereby waived by the Trustee.
Section 2. Counterparts. This Third Supplemental Indenture may
be executed in two or more counterpart copies of the entire document or of
signature pages to the document, each of which may be executed by one or more of
the parties hereto, but all of which, when taken together, shall not be
necessary in making proof of this Third Supplemental Indenture to produce or
account for more than one such complete counterpart copy.
Section 3. Governance, Etc. This Third Supplemental Indenture
shall be governed and construed in accordance with the applicable terms and
provisions of the Existing Indenture as amended hereby, including (without
limitation) Sections 11.01, 11.02, 11.08, 11.09, 11.10, 11.11, 11.12, 11.13,
11.14 and 11.15 thereof, which terms and provisions are incorporated herein by
reference, as if this Third Supplemental Indenture were the "Indenture" referred
to therein.
Section 4. Applicability to all Holders. This Amendment and
all terms and provisions contained herein shall be effective and binding
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upon and inure to the benefit of the Trustee, the Holders and the Company and
their respective successors and permitted assigns whether so expressed or not.
This Third Supplemental Indenture shall form a part of the Existing Indenture
for all purposes, and every Holder of Securities heretofore or hereafter
authenticated and delivered under the Indenture shall be bound hereby.
Section 5. No Trustee Liability, Etc. This Third Supplemental
Indenture is executed and accepted by the Trustee subject to all of the terms
and conditions of its acceptance of the trust under the Indenture, as fully as
if those terms and conditions were set forth herein. The Trustee assumes no
duties, responsibilities or liabilities by reason of this Third Supplemental
Indenture other than as set forth in the Indenture. The Trustee assumes no
responsibility for the correctness of the statements contained herein, which
shall be taken as statements of the Company.
Section 6. Indenture to Continue as Amended. The Existing
Indenture as modified and amended by this Third Supplemental Indenture, shall
remain and continue in full force and effect after the date hereof. Any and all
references, whether within the Existing Indenture or in any notice, certificate
or other instrument or document, shall be deemed to include a reference to this
Third Supplemental Indenture (whether or not made), unless the context shall
otherwise require.
Section 7. Entire Agreement. This Third Supplemental
Indenture, together with the Existing Indenture as amended hereby and the
Securities, contains the entire agreement of the parties, and supersedes all
other representations, warranties, agreements and understandings between the
parties, oral or otherwise, with respect to the matters contained herein and
therein.
Section 8. Instruments To Be Read Together. The Third
Supplemental Indenture is an indenture supplemental to the Existing Indenture,
and the Existing Indenture and this Third Supplemental Indenture shall
henceforth be read together.
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In Witness Whereof, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and delivered as of the date first
written above by their respective officers thereunto duly authorized.
Xxxxxx Medical Technology, Inc.
By:________________________________
Name:______________________________
Title:_______________________________
ATTEST:
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Secretary
State Street Bank and Trust Company,
as Successor Trustee
By:________________________________
Name:______________________________
Title:_______________________________
ATTEST:
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