EXHIBIT T3C
DADE BEHRING INC., as Issuer
THE GUARANTORS (as defined herein), as Guarantors,
And
BNY MIDWEST TRUST COMPANY
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INDENTURE
Dated as of [*], 2002
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$[315,312,533]
*%(1) Senior Subordinated Notes due 2010
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(1) DB to advise as to Interest Rate
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
--------- -----------
310(a)(1) ..................................................................... 7.10
(a)(2) ..................................................................... 7.10
(a)(3) ..................................................................... N.A.
(a)(4) ..................................................................... N.A.
(a)(5) ..................................................................... 7.08; 7.10
(b) ..................................................................... 7.08; 7.10;
13.02
(c) ..................................................................... N.A.
311(a) ..................................................................... 7.11
(b) ..................................................................... 7.11
(c) ..................................................................... N.A.
312(a) ..................................................................... 2.05
(b) ..................................................................... 13.03
(c) ..................................................................... 13.03
313(a) ..................................................................... 7.06
(b) (1).................................................................. N.A.
(b) (2).................................................................. 7.06
(c) ..................................................................... 7.06; 13.02
(d) ..................................................................... 7.06
314(a) ..................................................................... 4.07; 4.08;
13.02
(b) ..................................................................... N.A.
(c) (1).................................................................. 13.04
(c) (2).................................................................. 13.04
(c) (3).................................................................. N.A.
(d) ..................................................................... N.A.
(e) ..................................................................... 13.05
(f) ..................................................................... N.A.
315(a) ..................................................................... 7.01(b)
(b) ..................................................................... 7.05; 13.02
(c) ..................................................................... 7.01(a)
(d) ..................................................................... 7.01(c)
(e) ..................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a) (1)(A)............................................................... 6.05
(a) (1)(B)............................................................... 6.04
(a) (2).................................................................. N.A.
(b) ..................................................................... 6.07
(c) ..................................................................... 9.05
317(a) (1).................................................................. 6.08
TIA INDENTURE
SECTION SECTION
--------- -----------
(a) (2).................................................................. 6.09
(b) ..................................................................... 2.04
318(a) ..................................................................... 13.01
(c) ..................................................................... 13.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the
Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS..........................................................................2
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA...................................................24
SECTION 1.03. RULES OF CONSTRUCTION...............................................................24
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING.....................................................................24
SECTION 2.02. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL AMOUNT............................25
SECTION 2.03. REGISTRAR, PAYING AGENT AND DEPOSITORY..............................................26
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST................................................26
SECTION 2.05. NOTEHOLDER LISTS....................................................................27
SECTION 2.06. TRANSFER AND EXCHANGE...............................................................27
SECTION 2.07. REPLACEMENT NOTES...................................................................28
SECTION 2.08. OUTSTANDING NOTES...................................................................28
SECTION 2.09. TREASURY NOTES......................................................................28
SECTION 2.10. TEMPORARY NOTES.....................................................................28
SECTION 2.11. CANCELLATION........................................................................29
SECTION 2.12. DEFAULTED INTEREST..................................................................29
SECTION 2.13. CUSIP NUMBER........................................................................29
SECTION 2.14. DEPOSIT OF MONEYS...................................................................29
SECTION 2.15. GLOBAL NOTE LEGEND..................................................................30
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY...........................................30
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE..................................................................31
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED...................................................32
SECTION 3.03. NOTICE OF REDEMPTION................................................................32
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION......................................................33
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.........................................................33
SECTION 3.06. NOTES REDEEMED IN PART..............................................................33
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES....................................................................34
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.....................................................34
SECTION 4.03. CORPORATE EXISTENCE.................................................................34
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS...................................................35
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SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.............................................35
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT...........................................35
SECTION 4.07. COMPLIANCE WITH LAWS................................................................36
SECTION 4.08. SEC REPORTS.........................................................................36
SECTION 4.09. WAIVER OF STAY, EXTENSION OR USURY LAWS.............................................37
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS...................................................37
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES..........................................39
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.................................41
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES........42
SECTION 4.14. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED DEBT AND GUARANTOR SENIOR
SUBORDINATED INDEBTEDNESS........................................................43
SECTION 4.15. CHANGE OF CONTROL...................................................................43
SECTION 4.16. LIMITATION ON ASSET SALES...........................................................45
SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.......................................48
SECTION 4.18. LIMITATION ON LIENS.................................................................48
SECTION 4.19. FUTURE GUARANTORS...................................................................49
SECTION 4.20. LIMITATION OF GUARANTEES BY SUBSIDIARIES............................................49
SECTION 4.21. CONDUCT OF BUSINESS.................................................................49
[SECTION 4.22. Payments for Consent...............................................................50
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS............................................50
SECTION 5.02. SUCCESSOR CORPORATION AND GUARANTORS SUBSTITUTED....................................51
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT...................................................................52
SECTION 6.02. ACCELERATION........................................................................53
SECTION 6.03. OTHER REMEDIES......................................................................54
SECTION 6.04. WAIVER OF PAST DEFAULTS.............................................................54
SECTION 6.05. CONTROL BY MAJORITY.................................................................54
SECTION 6.06. LIMITATION ON SUITS.................................................................54
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................................................55
SECTION 6.08. COLLECTION SUIT BY TRUSTEE..........................................................55
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM....................................................55
SECTION 6.10. PRIORITIES..........................................................................56
SECTION 6.11. UNDERTAKING FOR COSTS...............................................................56
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS....................................................56
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE...................................................................57
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SECTION 7.02. RIGHTS OF TRUSTEE...................................................................58
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE........................................................59
SECTION 7.04. TRUSTEE'S DISCLAIMER................................................................59
SECTION 7.05. NOTICE OF DEFAULT...................................................................59
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.......................................................60
SECTION 7.07. COMPENSATION AND INDEMNITY..........................................................60
SECTION 7.08. REPLACEMENT OF TRUSTEE..............................................................61
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC....................................................62
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.......................................................62
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...................................62
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS............................................62
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................63
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE...............................65
SECTION 8.04. APPLICATION OF TRUST MONEY..........................................................66
SECTION 8.05. REPAYMENT TO THE COMPANY............................................................66
SECTION 8.06. REINSTATEMENT.......................................................................67
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS..........................................................67
SECTION 9.02. WITH CONSENT OF HOLDERS.............................................................68
SECTION 9.03. EFFECT ON SENIOR DEBT AND GUARANTOR SENIOR DEBT.....................................69
SECTION 9.04. COMPLIANCE WITH TIA.................................................................69
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS...................................................69
SECTION 9.06. NOTATION ON OR EXCHANGE OF NOTES....................................................70
SECTION 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC.....................................................70
ARTICLE TEN
SUBORDINATION
SECTION 10.01. NOTES SUBORDINATED TO SENIOR DEBT...................................................70
SECTION 10.02. NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES........................................71
SECTION 10.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC......................................72
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION...........................................73
SECTION 10.05. SUBROGATION.........................................................................74
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL............................................74
SECTION 10.07. NOTICE TO TRUSTEE...................................................................74
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT......................75
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT...................................................75
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY OR HOLDERS
OF SENIOR DEBT....................................................................75
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SECTION 10.11. NOTEHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF NOTES..................76
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT...................................76
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED...............................................77
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. GUARANTEES..........................................................................77
SECTION 11.02. LIMITATION ON LIABILITY.............................................................79
SECTION 11.03. SUCCESSORS AND ASSIGNS..............................................................80
SECTION 11.04. NO WAIVER...........................................................................80
SECTION 11.05. MODIFICATION........................................................................80
SECTION 11.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS...........................80
ARTICLE TWELVE
SUBORDINATION OF THE GUARANTEES
SECTION 12.01. GUARANTEES SUBORDINATED TO GUARANTOR SENIOR DEBT....................................81
SECTION 12.02. GUARANTEES IN CERTAIN CIRCUMSTANCES.................................................81
SECTION 12.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC......................................82
SECTION 12.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION...........................................83
SECTION 12.05. SUBROGATION.........................................................................84
SECTION 12.06. OBLIGATIONS OF EACH GUARANTOR UNCONDITIONAL.........................................84
SECTION 12.07. NOTICE TO TRUSTEE...................................................................84
SECTION 12.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT......................85
SECTION 12.09. TRUSTEE'S RELATION TO SENIOR DEBT...................................................85
SECTION 12.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY, THE
GUARANTORS OR HOLDERS OF SENIOR DEBT..............................................86
SECTION 12.11. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF THE GUARANTEES.............86
SECTION 12.12. THIS ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT................................87
SECTION 12.13. TRUSTEE'S COMPENSATION NOT PREJUDICED...............................................87
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA CONTROLS........................................................................87
SECTION 13.02. NOTICES.............................................................................87
SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS........................................88
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT..................................88
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.......................................88
SECTION 13.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR...........................................89
SECTION 13.07. LEGAL HOLIDAYS......................................................................89
SECTION 13.08. GOVERNING LAW.......................................................................89
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.......................................89
SECTION 13.10. NO RECOURSE AGAINST OTHERS..........................................................89
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SECTION 13.11. SUCCESSORS..........................................................................89
SECTION 13.12. DUPLICATE ORIGINALS.................................................................90
SECTION 13.13. SEVERABILITY........................................................................90
Signatures..........................................................................................78
Exhibit A-Form of Global Note......................................................................A-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the
Indenture.
v
INDENTURE, dated as of [*], 2002, between
Dade Behring Inc., a
Delaware corporation (the "COMPANY"), Dade Behring Holdings Inc. ("HOLDINGS"),
each subsidiary of the Company listed on the signature pages (each a "SUBSIDIARY
GUARANTOR" and together with Holdings, the "GUARANTORS"), and BNY Midwest Trust
Company, an Illinois trust company, as Trustee (the "TRUSTEE").
RECITALS
WHEREAS, on August 1, 2002, the Company and certain of its
wholly-owned subsidiaries filed a voluntary petition under Chapter 11 of the
United States Code, as amended (the "BANKRUPTCY CODE") with the United States
Bankruptcy Court for the Northeastern District of Illinois, Eastern Division
(the "BANKRUPTCY COURT");
WHEREAS, the Company and the Guarantors filed a Plan of Reorganization
(the "PLAN") which was approved by the Bankruptcy Court on September 18, 2002;
WHEREAS, pursuant to the Plan, the Company is required to issue the
Notes (as defined herein), to certain holders of indebtedness of the Company and
certain of its Guarantors outstanding on the date the Plan was approved by the
Bankruptcy Court;
WHEREAS, the Company has duly authorized the creation of an issue of
*% Senior Subordinated Notes due 2010 (the "NOTES") and, to provide therefore,
the Company has duly authorized the execution and delivery of this
Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this
Indenture a
valid and binding agreement of the Company, in accordance with their and its
terms, have been done;
WHEREAS, each of the Guarantors has duly authorized its Guarantee (as
defined below) of the Notes and, to provide therefore, each Guarantor has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Guarantees, when executed by
the Guarantors and when the Notes have been authenticated and delivered
hereunder and duly issued by the Company, the valid and binding obligations of
the Guarantors, and to make this Indenture a valid agreement of the Guarantors,
in accordance with their and its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the acquisition of the
Notes for the Holders thereof, it is mutually agreed, for the equal and ratable
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACCELERATION NOTICE" has the meaning provided in Section 6.02(a).
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company or
such acquisition.
"AFFILIATE" means a Person who directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, the Company. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise, PROVIDED that beneficial ownership of 10% or more of the
voting securities of the Company or Holdings shall be deemed to be control.
Notwithstanding the foregoing, no Person (other than the Company, or any
Subsidiary of the Company) in whom a Securitization Entity makes an Investment
in connection with a Qualified Securitization Transaction shall be deemed to be
an Affiliate of the Company, or any of its Subsidiaries solely by reason of such
Investment.
"AFFILIATE TRANSACTION" has the meaning provided in Section 4.11.
"AGENT" means any Registrar, Paying Agent, co-Registrar or agent for
service of demands and notices in connection with the Notes.
"AGENT MEMBERS" has the meaning provided in Section 2.16.
"ASSET ACQUISITION" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person if, as a result of such
Investment, such Person shall become a Restricted Subsidiary of the Company or
any Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person which constitute all or substantially all of the assets of such Person,
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries) to any Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company of (a) any Capital Stock of any
Restricted Subsidiary of the Company or (b) any other property or assets of the
Company or any Restricted Subsidiary of the Company other than in the ordinary
course of business; PROVIDED, HOWEVER, that Asset Sales shall not include (i) a
transaction or series of
2
related transactions for which the Company or its Restricted Subsidiaries
receive aggregate consideration of less than $1.0 million, (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of the Company as permitted under Section 5.01 or any disposition that
constitutes a Change of Control, (iii) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof, (iv)
the factoring of accounts receivable arising in the ordinary course of business
pursuant to arrangements customary in the region, (v) the licensing of
intellectual property, (vi) disposals or replacements of obsolete equipment in
the ordinary course of business, (vii) the sale, lease, conveyance, disposition
or other transfer by the Company or any Restricted Subsidiary of assets or
property to one or more Wholly Owned Restricted Subsidiaries in connection with
Investments permitted under Section 4.10, (viii) sales of accounts receivable,
equipment and related assets (including contract rights) of the type specified
in the definition of "Qualified Securitization Transaction" to a Securitization
Entity for the fair market value thereof, including cash in an amount at least
equal to 75% of the fair market value thereof as determined in accordance with
GAAP, (ix) transfers of accounts receivable, equipment and related assets
(including contract rights) of the type specified in the definition of
"Qualified Securitization Transaction" (or a fractional undivided interest
therein) by a Securitization Entity in a Qualified Securitization Transaction,
(x) the exchange of assets held by the Company or a Restricted Subsidiary of the
Company for assets held by any Person or entity, provided that (i) the assets
received by the Company or such Restricted Subsidiary in any such exchange will
immediately constitute, be part of, or be used as permitted under Section 4.21;
and (ii) any such assets received are of a comparable fair market value to the
assets exchanged as determined in good faith by the Company, and (xi) the
disposition of current assets in connection with the rationalization of the
Company's foreign distribution network not to exceed $[*] million in the
aggregate. For the purposes of clause (viii), Purchase Money Notes shall be
deemed to be cash.
"AUTHENTICATING AGENT" has the meaning provided in Section 2.02.
"BANK CREDIT AGREEMENT" means the credit agreement dated as of the
Effective Date, among Holdings, the Company and the lenders party thereto in
their capacities as lenders thereunder and Deutsche Bank AG, as administrative
agent, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement(s) extending the maturity of, refinancing, replacing or otherwise
restructuring (including, without limitation, increasing the amount of available
borrowings thereunder or adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under
such agreement(s) or any successor or replacement agreement(s) and whether by
the same or any other agent, lender or group of lenders.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"BLOCKAGE PERIOD" has the meaning provided in Section 10.02.
3
"BOARD OF DIRECTORS" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors or other equivalent governing body of such
Person.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of corporate stock, including each class of common stock
and preferred stock of such Person and (ii) with respect to any Person that is
not a corporation, any and all partnership or other equity interests of such
Person.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means: (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iv)
certificates of deposit or bankers' acceptances (or, with respect to foreign
banks, similar instruments) maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia having at the
date of acquisition thereof combined capital and surplus of not less than $500.0
million; PROVIDED that instruments issued by banks not having one of the two
highest ratings obtainable from either S&P or ▇▇▇▇▇'▇ shall not constitute "Cash
Equivalents" for purposes of the subordination provisions of this Indenture; (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; and (vi) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (v) above; PROVIDED that for
purposes of the subordination provisions contained in the Articles Ten and
Twelve, the term "Cash Equivalents" will not include cash equivalents of the
type described in clause (v) of the definition thereof.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "GROUP"), together with
4
any Affiliates thereof (whether or not otherwise in compliance with the
provisions of this Indenture); (ii) the approval by the holders of Capital Stock
of the Company of any plan or proposal for the liquidation or dissolution of the
Company (whether or not otherwise in compliance with the provisions of this
Indenture); (iii) any Person or Group shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than 50% of
the aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of Holdings; (iv) any Person or Group, other than Holdings, shall
become the owner, directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power represented by
the issued and outstanding voting stock of the Company; or (v) the first day
within any two-year period on which a majority of the members of the Board of
Directors of the Company or Holdings are not Continuing Directors.
"CHANGE OF CONTROL DATE" has the meaning provided in Section 4.15.
"CHANGE OF CONTROL OFFER" has the meaning provided in Section 4.15.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning provided in
Section 4.15.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"COMPARABLE TREASURY ISSUE" means a particular United States treasury
security selected by the Company as having a maturity comparable to the earliest
optional redemption of the Notes that would be utilized in accordance with
customary financial practice, in pricing new issues of corporate debt
securities.
"COMPARABLE TREASURY YIELD" means, with respect to any Redemption Date
for a Makewhole Redemption: (a) the yield for the Comparable Treasury Issue
(expressed as a yield to maturity) on the third business day preceding such
Redemption Date, as set forth under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)"(2) (or any successor release)
published by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities" or (b) if
that release (or any successor release) is not published or does not contain the
applicable prices on the applicable business day, the yield to maturity for the
Comparable Treasury Issue for that redemption date quoted to the Company by an
independent investment banking firm of national standing selected by the
Company.
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes and foreign withholding taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period, (B)
Consolidated Interest Expense and (C) Consolidated Non-cash Charges.
----------
(2) DB to confirm.
5
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "TRANSACTION DATE") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence of any
Indebtedness giving rise to the need to make such calculation and any incurrence
or repayment of other Indebtedness occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Effective Date, as if such incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first day of
the Four Quarter Period and (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Securities Act as in effect and applied as of September
30, 2002 attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Effective Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed Indebtedness as
if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Effective Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Effective Date; (2) if interest on any
Indebtedness actually incurred on the Effective Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
(before amortization or write-off of debt issuance costs) plus (ii) the amount
of all cash dividend payments on any series of Preferred Stock of such Person
plus (iii) the amount of all dividend payments on any series of Permitted
Domestic Subsidiary Preferred Stock.
6
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum of, without duplication, (i) the aggregate of all cash and
non-cash interest expense with respect to all outstanding Indebtedness of such
Person and its Restricted Subsidiaries, including the net costs associated with
Interest Swap Obligations, for such period determined on a consolidated basis in
conformity with GAAP, and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" of any Person means, for any period, the
aggregate net income (or loss) of such Person for such period on a consolidated
basis, determined in accordance with GAAP; PROVIDED that there shall be excluded
therefrom (a) gains and losses from Asset Sales (without regard to the $1.0
million limitation set forth in the definition thereof) or abandonments or
reserves relating thereto and the related tax effects according to GAAP, (b)
gains and losses due solely to fluctuations in currency values and the related
tax effects according to GAAP, (c) items classified as extraordinary, unusual or
nonrecurring gains and losses (including, without limitation, restructuring
costs), and the related tax effects according to GAAP, (d) the net income (or
loss) of any Person acquired in a pooling of interests transaction accrued prior
to the date it becomes a Restricted Subsidiary of the Company or is merged or
consolidated with the Company or any Restricted Subsidiary of the Company, (e)
the net income of any Restricted Subsidiary of the Company to the extent that
the declaration of dividends or similar distributions by that Restricted
Subsidiary of the Company of that income is restricted by contract, operation of
law or otherwise, (f) the net loss of any Person, other than a Restricted
Subsidiary of the Company, (g) the net income of any Person, other than a
Restricted Subsidiary of the Company, except to the extent of cash dividends or
distributions paid to the Company or a Restricted Subsidiary of the Company by
such Person, (h) only for purposes of clause (iii)(w) of the first paragraph of
Section 4.10, any amounts included pursuant to clause (iii)(z) of Section 4.10,
and (i) one time non-cash compensation charges, including any arising from
existing stock options resulting from any merger or recapitalization
transaction.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such non-cash charge
constituting an extraordinary item or loss or any such non- cash charge which
requires an accrual of or a reserve for cash charges for any future period,
other than the net non-cash charges related to deferred revenue in connection
with recourse provisions under instrument sales programs entered into in the
ordinary course of business).
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company or Holdings, as the case may be,
who (i) was a member of such Board of Directors on the Effective Date or (ii)
was nominated for election or elected to such Board of Directors with, or whose
election to such Board of Directors was approved by, the affirmative vote of a
majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election.
"COVENANT DEFEASANCE" has the meaning provided in Section 8.02.
7
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company, Holdings or any Restricted Subsidiary against fluctuations in currency
values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"DEFAULT NOTICE" has the meaning provided in Section 10.02.
"DEPOSITORY" means The Depository Trust Company, its nominees and
successors.
"DESIGNATED SENIOR DEBT" means (i) Indebtedness under or in respect of
the Bank Credit Agreement and (ii) any other Indebtedness constituting Senior
Debt or Guarantor Senior Debt which, at the time of determination, has an
aggregate principal amount of at least $25.0 million and is specifically
designated in the instrument evidencing such Senior Debt or Guarantor Senior
Debt as "Designated Senior Debt" by the Company or the Guarantor.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(other than an event which would constitute a Change of Control), matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except, in
each case, upon the occurrence of a Change of Control) on or prior to the final
maturity date of the Notes.
"EFFECTIVE DATE" means the date of original issuance of the Notes.
"EQUITY OFFERING" means any public or private offering for cash of the
Company's common stock or the common stock of Holdings after the Effective Date
(other than sales made to any Restricted Subsidiary of the Company or Holdings
and other than sales of Disqualified Stock); PROVIDED that in the event an
Equity Offering is consummated by Holdings, Holdings contributes to the capital
of the Company all of the net cash proceeds of such Equity Offering necessary to
pay the aggregate redemption price (plus accrued interest to the redemption
date) of the Notes to be redeemed pursuant to Paragraph 6(b) of the Notes.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"FAIR MARKET VALUE" means, unless otherwise specified, with respect to
any asset or property, the price which could be negotiated in an arm's-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Fair market value shall be determined by the
8
Board of Directors of the Company acting reasonably and in good faith and shall
be evidenced by a resolution of the Board of Directors of the Company delivered
to the Trustee.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary that is not
organized under the laws of the United States of America or any state thereof or
the District of Columbia.
"GAAP" is defined to mean generally accepted accounting principles in
the United States of America as in effect as of the date of this Indenture,
including, without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis.
"GLOBAL NOTE" has the meaning provided in Section 2.01.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the obligee
of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); PROVIDED,
HOWEVER, that the term "guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term
"guarantee" used as a verb has a corresponding meaning.
"GUARANTEE" means, individually, any guarantee of payment of the
Obligations of the Company under or with respect to the Notes by a Guarantor
pursuant to the terms of the Indenture and any supplemental indenture thereto,
and, collectively, all such Guarantees. Each such Guarantee will be in the form
prescribed by this Indenture.
"GUARANTEED OBLIGATION" has the meaning provided in Section 11.01.
"GUARANTOR" means, individually, each of Holdings and each Subsidiary
Guarantor.
"GUARANTOR SENIOR DEBT" means, with respect to a Guarantor, the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy, or other like proceedings,
at the rate provided for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable law) on any Indebtedness
of such Guarantor, whether outstanding on the Effective Date or thereafter
9
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes or such Guarantor's Guarantee.
Without limiting the generality of the foregoing, "Guarantor Senior Debt" shall
also include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of, (x) all monetary obligations (including guarantees thereof)
of every nature of such Guarantor under, or with respect to, the Bank Credit
Agreement, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations of such Guarantor (including
guarantees thereof) and (z) all obligations of such Guarantor (including
guarantees thereof) under Currency Agreements, in each case whether outstanding
on the Effective Date or thereafter incurred. Notwithstanding the foregoing,
Guarantor Senior Debt shall not include (i) any Indebtedness, if the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes or the Guarantor Guarantees, (ii) any Indebtedness of a Guarantor to a
Subsidiary of such Guarantor, (iii) Indebtedness to, or guaranteed on behalf of,
any director, officer or employee of such Guarantor or any Subsidiary of such
Guarantor (including, without limitation, amounts owed for compensation), (iv)
Indebtedness to trade creditors and other amounts incurred by such Guarantor in
connection with obtaining goods, materials or services; PROVIDED that
obligations owing under the Bank Credit Agreement shall not be excluded pursuant
to this clause (iv), (v) Indebtedness represented by Disqualified Capital Stock,
(vi) any liability for federal, state, local or other taxes owed or owing by
such Guarantor, (vii) that portion of any Indebtedness incurred in violation of
the Indenture provisions set forth under Section 4.12 (but as to (x) any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (vii) if the holder(s) of such obligation or their representative shall
have received an officers' certificate of the Company to the effect that the
incurrence of such Indebtedness does not (or, in the case of revolving credit
Indebtedness, that the incurrence of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would not) violate such
provisions of the Indenture and (y) any revolving Indebtedness under the Bank
Credit Agreement (and any guarantee Obligations in respect thereof) incurred in
violation of such provisions as a result of the applicable of subclause (x) of
the proviso appearing in clause (ii) of the definition of "Permitted
Indebtedness" shall not be excluded from Guarantor Senior Debt, so long as such
Indebtedness (or the Indebtedness subject to such guarantee) was extended in
good faith to the Company or any other obligor under the Bank Credit Agreement
and (viii) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of such Guarantor.
"GUARANTOR SENIOR SUBORDINATED INDEBTEDNESS" means, with respect to a
Guarantor, the obligations of such Guarantor under its Guarantee and any other
Indebtedness of such Guarantor (whether outstanding on the Effective Date or
thereafter incurred) that specifically provides that such Indebtedness is to
rank equally in right of payment with the obligations of such Guarantor under
its Guarantee and is not expressly subordinated by its terms in right of payment
to any Indebtedness of such Guarantor which is not Guarantor Senior Debt of such
Guarantor.
10
"GUARANTOR SUBORDINATED OBLIGATION" means, with respect to a
Guarantor, any Indebtedness of such Guarantor (whether outstanding on the
Effective Date or thereafter incurred) which is expressly subordinate in right
of payment to the obligations of such Subsidiary Guarantor under its Guarantee
pursuant to a written agreement.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"HOLDINGS" means Dade Behring Holdings Inc., a Delaware corporation
and its successors.
"INCUR" has the meaning provided in Section 4.12.
"INDEBTEDNESS" means with respect to any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable and warranty and service
obligations arising in the ordinary course of business), (v) all obligations for
the reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all obligations of any other Person of the type referred to
in clauses (i) through (vi) which are secured by any lien on any property or
asset of such Person, the amount of such obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of the
obligation so secured, (viii) all obligations under currency swap agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. For purposes hereof, (x) the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock and (y) any transfer of accounts receivable,
equipment or other assets (including contract rights) which constitute a sale
for purposes of GAAP and any related recourse provisions under instrument sales
programs entered into in the ordinary course of business shall not constitute
Indebtedness hereunder.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INITIAL PUBLIC OFFERING" means the first underwritten public offering
of Qualified Capital Stock (other than pursuant to the Plan) by either Holdings
or by the Company pursuant to a registration statement filed with the Commission
in accordance with the Securities
11
Act for aggregate net cash proceeds of at least [$*] million; PROVIDED that in
the event the Initial Public Offering is consummated by Holdings, Holdings
contributes to the capital of the Company at least [$*] million of the net cash
proceeds of the Initial Public Offering.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Notes.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"INVESTMENT" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude (a) issuances of any Person's common
stock and (b) extensions of trade credit by the Company and its Subsidiaries on
commercially reasonable terms in accordance with normal trade practices of the
Company or such Subsidiary, as the case may be. For the purposes of Section
4.10, (i) "Investment" shall include and be valued at the book value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the book value of the
net assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investments by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any common
stock of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, the Company no longer owns,
directly or indirectly, 100% of the outstanding common stock of such Restricted
Subsidiary, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the book value of the common stock of
such Restricted Subsidiary not sold or disposed of.
"LEGAL DEFEASANCE" has the meaning provided in Section 8.02.
"LEGAL HOLIDAY" has the meaning provided in Section 13.07.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
12
"MAKEWHOLE RATE" means, for any redemption date, the annual rate equal
to the yield to maturity, compounded semi-annually, of a selected Comparable
Treasury Issue, assuming a yield for the selected Comparable Treasury Issue
equal to the Comparable Treasury Yield for the particular redemption date.
"MATURITY DATE" means *, 2010.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents received by the Company or any
of its Subsidiaries from such Asset Sale net of (a) out-of-pocket expenses and
fees relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions), (b) taxes paid or
payable after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing arrangements, (c)
repayment of Indebtedness that is required to be repaid in connection with such
Asset Sale, (d) any portion of cash proceeds which the Company determines in
good faith should be reserved for post-closing adjustments, it being understood
and agreed that on the day that all such post-closing adjustments have been
determined, the amount (if any) by which the reserved amount in respect of such
Asset Sale exceeds the actual post-closing adjustments payable by the Company or
any of its Subsidiaries shall constitute Net Cash Proceeds on such date.
"NET PROCEEDS OFFER" has the meaning provided in Section 4.16.
"NET PROCEEDS OFFER PAYMENT DATE" has the meaning provided in Section
4.16.
"NET PROCEEDS OFFER TRIGGER DATE" has the meaning provided in Section
4.16.
"NOTES" means the *% senior subordinated notes of the Company as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness, without duplication.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05, as they relate to the making of an
Officers' Certificate.
13
"OPINION OF COUNSEL" means a written opinion from legal counsel, who
may be counsel for the Company, and who is reasonably acceptable to the Trustee
complying with the requirements of Sections 13.04 and 13.05, as they relate to
the giving of an Opinion of Counsel.
"PAYING AGENT" has the meaning provided in Section 2.03.
"PERMITTED DOMESTIC SUBSIDIARY PREFERRED STOCK" means any series of
Preferred Stock of a domestic Restricted Subsidiary of the Company that
constitutes Qualified Capital Stock and has a fixed dividend rate, the
liquidation value of all series of which, when combined with the aggregate
amount of Indebtedness of the Company and its Restricted Subsidiaries incurred
pursuant to clause (xvi) of the definition of Permitted Indebtedness, does not
exceed $37.5 million; PROVIDED that such amount shall increase to $75.0 million
upon consummation of an Initial Public Offering.
"PERMITTED INDEBTEDNESS" means, without duplication, (i) the Notes and
the Guarantees, (ii) Indebtedness owing under the Bank Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed $ * million,
(A) less the amount of all mandatory principal payments actually made by the
Company in respect of term loans thereunder with the Net Cash Proceeds of Asset
Sales and (B) reduced by any required permanent repayments (which are
accompanied by a corresponding permanent commitment reduction) thereunder with
the Net Cash Proceeds of Asset Sales; PROVIDED that (x) the aggregate principal
amount of Indebtedness permitted to be incurred under this clause (ii) shall be
reduced on a dollar-for-dollar basis by the amount of any Indebtedness
outstanding under clause (xv) below (other than Indebtedness pursuant to a
Qualified Securitization Transaction involving equipment and related assets),
PROVIDED that the amount of such reduction shall not exceed $50.0 million and
(y) that the amount of Indebtedness permitted to be incurred pursuant to the
Bank Credit Agreement in accordance with this clause (ii) shall be in addition
to any Indebtedness permitted to be incurred pursuant to the Bank Credit
Agreement in reliance on, and in accordance with, clauses (x) and (xvi) of this
definition, (iii) Indebtedness of foreign Restricted Subsidiaries of the
Company, not to exceed $ * million; PROVIDED that such amount shall increase to
$ * million upon consummation of an Initial Public Offering, (iv) other
Indebtedness of the Company and its Subsidiaries outstanding on the Effective
Date reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon, (v) Interest
Swap Obligations of the Company or any of its Subsidiaries covering Indebtedness
of the Company or any of its Subsidiaries; PROVIDED that any Indebtedness to
which any such Interest Swap Obligations correspond is otherwise permitted to be
incurred under this Indenture; PROVIDED, FURTHER, that such Interest Swap
Obligations are entered into, in the judgment of the Company, to protect the
Company from fluctuation in interest rates on their respective outstanding
Indebtedness, (vi) Indebtedness under Currency Agreements, (vii) intercompany
Indebtedness owed by the Company to any Wholly Owned Restricted Subsidiary of
the Company or by any Restricted Subsidiary of the Company to the Company or any
Wholly Owned Restricted Subsidiary of the Company, (viii) Acquired Indebtedness
to the extent the Company could have incurred such Indebtedness in accordance
with Section 4.12 on the date such Indebtedness became Acquired Indebtedness,
(ix) guarantees by the Company, its Wholly Owned Restricted Subsidiaries of each
other's Indebtedness; PROVIDED that such Indebtedness is permitted to be
incurred under this Indenture, including, with respect to guarantees by Wholly
Owned Restricted Subsidiaries of the Company, Section 4.20, (x) Indebtedness
(including
14
Capitalized Lease Obligations) incurred by the Company or any of its Restricted
Subsidiaries to finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate principal amount
outstanding not to exceed 5.0% of Total Assets at the time of any incurrence
thereof (including any Refinancing Indebtedness with respect thereto) (which
amount may, but need not, be incurred in whole or in part under the Bank Credit
Agreement), (xi) Indebtedness incurred by the Company, any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including, without limitation,
letters of credit in respect of workers' compensation claims or self-insurance,
or other Indebtedness with respect to reimbursement type obligations regarding
workers' compensation claims, (xii) Indebtedness arising from agreements of the
Company or a Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price, earn out or other similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or a Restricted Subsidiary of the Company, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary for the purpose of financing such
acquisition; PROVIDED that the maximum assumable liability in respect of all
such Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and its Restricted Subsidiaries in connection with such
disposition, (xiii) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary of
the Company in the ordinary course of business, (xiv) any refinancing,
modification, replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale of existing or future
Indebtedness, including any additional Indebtedness incurred to pay interest or
premiums required by the instruments governing such existing or future
Indebtedness as in effect at the time of issuance thereof ("REQUIRED PREMIUMS")
and fees in connection therewith ("REFINANCING INDEBTEDNESS"); PROVIDED that any
such event shall not (1) result in an increase in the aggregate principal amount
of Permitted Indebtedness (except to the extent such increase is a result of a
simultaneous incurrence of additional Indebtedness (A) to pay Required Premiums
and related fees or (B) otherwise permitted to be incurred under this Indenture)
of the Company and its Subsidiaries and (2) create Indebtedness with a Weighted
Average Life to Maturity at the time such Indebtedness is incurred that is less
than the Weighted Average Life to Maturity at such time of the Indebtedness
being refinanced, modified, replaced, renewed, restated, refunded, deferred,
extended, substituted, supplemented, reissued or resold (except that this
subclause (2) will not apply in the event the Indebtedness being refinanced,
modified, replaced, renewed, restated, refunded, deferred, extended,
substituted, supplemented, reissued or resold was originally incurred in
reliance upon clauses (vii) or (xvi) of this definition), (xv) the incurrence by
a Securitization Entity of Indebtedness in a Qualified Securitization
Transaction that is not recourse to the Company or any Subsidiary of the Company
(except for Standard Securitization Undertakings), and (xvi) additional
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate
principal amount, which together with the aggregate liquidation value of all
outstanding series of Permitted Domestic Subsidiary Preferred Stock, does not
exceed $ * million at any one time outstanding (which amount, in the case of
Indebtedness, may, but need not, be incurred in whole or in part under the Bank
Credit Agreement); PROVIDED that such amount shall increase to $ * million upon
consummation of an Initial Public Offering.
15
"PERMITTED INVESTMENTS" means (i) Investments by the Company or any
Restricted Subsidiary of the Company in any Wholly Owned Restricted Subsidiary
of the Company (whether existing on the Effective Date or created thereafter) or
in any other Person (including by means of any transfer of cash or other
property) if as a result of such Investment such Person shall become a Wholly
Owned Restricted Subsidiary of the Company and Investments in the Company by any
Restricted Subsidiary of the Company, (ii) cash and Cash Equivalents, (iii)
Investments existing on the Effective Date, (iv) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business, (v) accounts receivable created or acquired in the ordinary
course of business, (vi) Currency Agreements and Interest Swap Obligations
entered into in the ordinary course of the Company's or its Restricted
Subsidiaries' businesses and otherwise in compliance with this Indenture, (vii)
Investments in securities of trade creditors or customers received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers, (viii) guarantees (A) by the
Company of Indebtedness otherwise permitted to be incurred by Restricted
Subsidiaries of the Company under this Indenture or (B) permitted by Section
4.20, (ix) additional Investments having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (ix) that are
at that time outstanding, not to exceed 2.0% of Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value), (x) any
Investment by the Company or a Wholly Owned Subsidiary of the Company in a
Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Qualified Securitization Transaction; PROVIDED that
any Investment in a Securitization Entity is in the form of a Purchase Money
Note or an equity interest, (xi) any transaction to the extent it constitutes an
Investment that is permitted by, and made in accordance with, clause (b) of
Section 4.11 (other than transactions described in clause (v) of such clause),
(xii) Investments the payment for which consists exclusively of Qualified
Capital Stock of the Company, (xiii) Investments received by the Company or its
Restricted Subsidiaries as consideration for asset sales, including Asset Sales;
PROVIDED in the case of an Asset Sale, such Asset Sale is effected in compliance
with Section 4.16, (xiv) the creation of Liens on the assets of the Company or
any of its Restricted Subsidiaries in compliance with Section 4.18.
"PERMITTED LIENS" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in
respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of
16
social security, including any Lien securing letters of credit issued in
the ordinary course of business consistent with past practice in connection
therewith, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation;
(vii) purchase money Liens to finance property or assets of the Company
or any Restricted Subsidiary of the Company acquired in the ordinary course
of business; PROVIDED, HOWEVER, that (A) the related purchase money
Indebtedness shall not exceed the cost of such property or assets and shall
not be secured by any property or assets of the Company or any Restricted
Subsidiary of the Company other than the property and assets so acquired
and (B) the Lien securing such Indebtedness shall be created within 90 days
of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment, or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens securing Indebtedness of foreign Restricted Subsidiaries of
the Company incurred in reliance on clause (iii) of the definition of
Permitted Indebtedness;
(xiv) Liens securing Acquired Indebtedness incurred in reliance on
clause (viii) of the definition of Permitted Indebtedness;
17
(xv) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary with respect to obligations that do not in the
aggregate exceed $10.0 million at any one time outstanding;
(xvi) Liens on assets transferred to a Securitization Entity or on
assets of a Securitization Entity, in either case incurred in connection
with a Qualified Securitization Transaction;
(xvii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries;
(xviii) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods; and
(xx) Liens existing on the Effective Date, together with any Liens
securing Indebtedness incurred in reliance on clause (xiv) of the
definition of Permitted Indebtedness in order to refinance the Indebtedness
secured by Liens existing on the Effective Date; PROVIDED that the Liens
securing the refinancing Indebtedness shall not extend to property other
than that pledged under the Liens securing the Indebtedness being
refinanced.
"PERSON" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"PHYSICAL NOTES" has the meaning provided in Section 2.01.
"PLAN OF LIQUIDATION" means, with respect to any Person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"PREFERRED STOCK" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"PRINCIPAL" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"PRODUCTIVE ASSETS" means assets (including Capital Stock) of a kind
used or usable in the businesses of the Company and its Restricted Subsidiaries
permitted by Section 4.21.
18
"PURCHASE MONEY NOTE" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Subsidiary of the Company in connection with a Qualified Securitization
Transaction to a Securitization Entity, which note shall be repaid from cash
available to the Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables or
newly acquired equipment.
"QUALIFIED CAPITAL STOCK" means any stock that is not Disqualified
Capital Stock.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or series
of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any or its Subsidiaries may sell,
convey or otherwise transfer to (a) a Securitization Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Securitization Entity), or may grant a security
interest in, any accounts receivable or equipment (whether now existing or
arising or acquired in the future) of the Company or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing such accounts receivable and equipment, all contracts and contract
rights and all guarantees or other obligations in respect of such accounts
receivable and equipment, proceeds of such accounts receivable and equipment and
other assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable and equipment.
"RECORD DATE" means the Record Dates specified in the Notes, whether
or not a Legal Holiday.
"REDEMPTION DATE" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"REDEMPTION PRICE" when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Notes.
"REFERENCE DATE" has the meaning provided in Section 4.10.
"REFINANCING INDEBTEDNESS" has the meaning provided in clause (xiv) of
the definition of Permitted Indebtedness.
"REFUNDING CAPITAL STOCK" has the meaning provided in Section 4.10.
"REGISTRAR" has the meaning provided in Section 2.03.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; PROVIDED that if,
and for so long as, any Designated Senior Debt lacks such a representative, then
the Representative for such Designated Senior Debt shall at all times constitute
the holders of a majority in outstanding principal amount of such Designated
Senior Debt in respect of any Designated Senior Debt.
19
"REQUIRED PREMIUMS" has the meaning provided in clause (xiv) of the
definition of Permitted Indebtedness.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PAYMENT" has the meaning provided in Section 4.10.
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"RETIRED CAPITAL STOCK" shall have the meaning provided in Section
4.10.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means, the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"SECURITIZATION ENTITY" means a Wholly Owned Subsidiary of the Company
(or another Person in which the Company or any Subsidiary of the Company makes
an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable or equipment and related assets) which engages in
no activities other than in connection with the financing of accounts receivable
or equipment and which is designated by the Board of Directors of the Company
(as provided below) as a Securitization Entity (a) no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which (i) is
guaranteed by the Company or any Subsidiary of the Company (excluding guarantees
of Obligations (other than the principal of, and interest on, Indebtedness))
pursuant to Standard Securitization Undertakings, (ii) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any property
or asset of the Company or any Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which neither the
Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to the
Company or such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing receivables of such
entity, and (c) to which neither the Company nor any Subsidiary of the Company
has any obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"SENIOR DEBT" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy, or other like proceeding, at the rate provided for in the
documentation with respect thereto, whether or not
20
such interest is an allowed claim under applicable law) on any Indebtedness of
the Company, whether outstanding on the Effective Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes. Without limiting the generality of the foregoing,
"Senior Debt" shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of, (x) all monetary obligations (including
guarantees thereof) of every nature of the Company under, or with respect to,
the Bank Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, (y) all Interest Swap Obligations (including
guarantees thereof) and (z) all obligations (including guarantees thereof) under
Currency Agreements, in each case whether outstanding on the Effective Date or
thereafter incurred. Notwithstanding the foregoing, Senior Debt shall not
include (i) any Indebtedness, if the instrument creating or evidencing the same
or the assumption or guarantee thereof expressly provides that such Indebtedness
shall not be senior in right of payment to the Notes, (ii) any Indebtedness of
the Company to a Subsidiary of the Company, (iii) Indebtedness to, or guaranteed
on behalf of, any shareholder, director, officer or employee of the Company or
any Subsidiary of the Company (including, without limitation, amounts owed for
compensation), (iv) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services; PROVIDED that
obligations owing under the Bank Credit Agreement shall not be excluded pursuant
to this clause (iv), (v) Indebtedness represented by Disqualified Capital Stock,
(vi) any liability for federal, state, local or other taxes owed or owing by the
Company, (vii) that portion of any Indebtedness incurred in violation of the
Indenture provisions set forth in Section 4.12 (but (x) as to any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (vii) if the holder(s) of such obligation or their representative shall
have received an officers' certificate of the Company to the effect that the
incurrence of such Indebtedness does not (or, in the case of revolving credit
Indebtedness, that the incurrence of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would not) violate such
provisions of the Indenture and (y) any revolving Indebtedness under the Bank
Credit Agreement incurred in violation of such provisions as a result of the
application of subclause (x) of the proviso appearing in clause (ii) of the
definition of "Permitted Indebtedness" shall not be excluded from Senior Debt,
so long as such Indebtedness was extended in good faith to the Company) and
(viii) any Indebtedness which is, by its express terms, subordinated in right of
payment to any other Indebtedness of the Company.
"SENIOR SUBORDINATED DEBT" means the Notes and any other Indebtedness
of the Company that specifically provides that such Indebtedness is to rank
equally with the Notes in right of payment and is not subordinated by its terms
in right of payment to any Indebtedness or other obligation of the Company which
is not Senior Debt.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
21
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable or equipment transaction.
"SUBORDINATED OBLIGATION" means any Indebtedness of the Company
(whether outstanding on the Effective Date or thereafter incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"SUBSIDIARY", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Company that
guarantees the Senior Debt under the Bank Credit Agreement on the Effective Date
and any Restricted Subsidiary created or acquired by the Company after the
Effective Date (other than a Foreign Subsidiary or a Securitization Entity) that
guarantees the Senior Debt under the Bank Credit Agreement.
"TAX ALLOCATION AGREEMENT" means the tax allocation agreement between
the Company and Holdings as in effect on the Effective Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.04.
"TOTAL ASSETS" means the total consolidated assets of the Company and
its Restricted Subsidiaries, as set forth on the Company's most recent
consolidated balance sheet.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer this Indenture, or in the case of a successor trustee, an
officer assigned to the department, division or group performing the corporation
trust work of such successor and assigned to administer this Indenture.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" of any Person means (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; PROVIDED that (x) the
Company certifies to the Trustee that such designation complies with Section
4.10 and (y) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue,
22
assume, guarantee or otherwise become directly or indirectly liable with respect
to any Indebtedness pursuant to which the lender has recourse to any of the
assets of the Company or any of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. PHYSICAL NOTES" has the meaning provided in Section 2.01.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"WHOLLY OWNED SUBSIDIARY" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than directors'
qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law) are owned by such Person or any Wholly
Owned Subsidiary of such Person.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Restricted Subsidiary of such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF ▇▇▇.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
23
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP as in effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular; and
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING.
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 depository rule
or usage. The Company and the Trustee shall approve the form of the Notes and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes and the Guarantees,
annexed hereto as Exhibit A, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
24
One or more permanent global Notes in registered form, substantially
in the form set forth in Exhibit A, having the legend set forth in Section 2.15,
may be issued by the Depository, to the extent such Depository is the registered
holder of the applicable Notes. Otherwise, Notes hereunder may be issued in the
form of certificated Notes in registered form substantially in the form set
forth in Exhibit A, without the legend set forth in Section 2.15. The Physical
Notes shall initially be registered in the name of the Depository or the nominee
of such Depository and be delivered to the Trustee as custodian for such
Depository. Beneficial owners of Physical Notes, however, may request
registration of such Physical Notes in their names or the names of their
nominees.
SECTION 2.02. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL
AMOUNT.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature. The Company's seal shall also be reproduced on the Notes.
If an Officer or Assistant Secretary whose signature is on a Note was
an Officer or Assistant Secretary at the time of such execution but no longer
holds that office or position at the time the Trustee authenticates the Note,
the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount not to exceed $ * upon written orders of the Company
in the form of an Officers' Certificate. The Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated and the aggregate principal amount of Notes outstanding on the
date of authentication, and shall further specify the amount of such Notes to be
issued as the Global Note or Physical Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed $ * except as provided in Section
2.07.
The Trustee shall not be required to authenticate Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent (the "AUTHENTICATING
AGENT") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of whole dollar integrals.
25
SECTION 2.03. REGISTRAR, PAYING AGENT AND DEPOSITORY.
The Company shall maintain an office or agency (which shall be located
in the Borough of Manhattan in the City of
New York, State of
New York) where
(a) Notes may be presented or surrendered for registration of transfer or for
exchange ("REGISTRAR"), (b) Notes may be presented or surrendered for payment
("PAYING AGENT") and (c) notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company, upon
prior written notice to the Trustee, may have one or more co-Registrars and one
or more additional paying agents reasonably acceptable to the Trustee. The term
"Paying Agent" includes any additional Paying Agent. Neither the Company nor any
Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of demands and notices in connection with the Notes, until
such time as the Trustee has resigned or a successor has been appointed. The
Paying Agent or Registrar may resign upon 30 days notice to the Company.
The Company initially appoints The Depository Trust Company to act as
Depository with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
SECTION 2.05. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or
26
cause the Registrar to furnish to the Trustee before each Record Date and at
such other times as the Trustee may request in writing a list as of such date
and in such form as the Trustee may reasonably require of the names and
addresses of the Holders, which list may be conclusively relied upon by the
Trustee and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of Section 2.16, when Notes are presented to
the Registrar or a co-Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Notes presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfer and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made 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 exchanges or transfers pursuant to Sections
2.10, 3.06, 4.15, 4.16 or 9.06, in which event the Company shall be responsible
for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Notes may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
SECTION 2.07. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. Such Holder must provide an affidavit of lost
certificate and an indemnity bond or other indemnity, sufficient in the judgment
of both the Company and the Trustee, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Note is replaced. The
Company may charge such Holder for its reasonable, out-of-pocket expenses in
replacing a Note, including reasonable fees and expenses of counsel. Every
replacement Note shall constitute an additional obligation of the Company.
27
SECTION 2.08. OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives an Opinion of Counsel that the replaced Note is held by a BONA
FIDE purchaser. A mutilated Note ceases to be outstanding upon surrender of such
Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned by
the Company or any of its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Notes, of the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon receipt of a written
order of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate upon receipt
of a written order of the Company pursuant to Section 2.02 definitive Notes in
exchange for temporary Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer exchange, payment or cancellation in
accordance with customary procedures. Subject to Section 2.07, the Company may
not issue new Notes to
28
replace Notes that it has paid or delivered to the Trustee for cancellation. If
the Company shall acquire any of the Notes, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such Notes
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, as of a recent date selected by the Company, with a copy to the Trustee,
a notice that states the subsequent special record date, the payment date and
the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and if so,
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; PROVIDED that no representation is hereby deemed to be
made by the Trustee as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 11:00 a.m.
New York City time on each Interest Payment Date
and on the Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent, to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be.
SECTION 2.15. GLOBAL NOTE LEGEND. The following legend shall appear on
the face of all Global Notes issued under this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE
29
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN."
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE.
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
(a) The Global Note initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.15.
Members of, or participants in, the Depository ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global Note
if (i) the
30
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the Global Note and a successor depositary is not appointed by
the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Note, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to Paragraph 6 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed.
The Company shall give each notice provided for in this Section 3.01
not less than 30 nor more than 60 days before the Redemption Date (unless a
notice period shorter than 45 days shall be satisfactory to the Trustee, as
evidenced in a writing signed on behalf of the Trustee), together with an
Officers' Certificate stating that such redemption shall comply with the
conditions contained herein and in the Notes.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed on a PRO RATA basis, by lot or in such other
fair and reasonable manner chosen at the discretion of the Trustee; PROVIDED,
HOWEVER, that if a partial redemption is made with the proceeds of an Equity
offering, selection of the Notes or portion thereof for redemption shall be made
by the Trustee only on a PRO RATA basis, unless such method is otherwise
prohibited. The Trustee shall make the selection from the Notes outstanding and
not previously
31
called for redemption and shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail, postage prepaid, to each Holder whose Notes are to be redeemed, at
the last address for such Holder in the Registrar's book, with a copy to the
Trustee and any Paying Agent. At the Company's written request, the Trustee
shall give the notice of redemption in the Company's name and at the Company's
expense.
Each notice for redemption shall identify the Notes to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption is
being made;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price plus accrued
interest, if any, upon surrender to the Paying Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
and
(8) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption.
32
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant record dates referred to in the Notes.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m.,
New York City time, on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all Notes to be
redeemed on that date. The Paying Agent shall promptly return to the Company,
upon its written request, any U.S. Legal Tender so deposited which is not
required for that purpose, except with respect to monies owed as obligations to
the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder a new Note or
Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and in this Indenture. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment in full, unless the provisions of Article
X hereof prohibit such payment.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
borne by the Notes plus 2% per annum. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
33
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
SECTION 4.03. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five and Section 4.16, the
Company shall do or cause to be done, at its own cost and expense, all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each Restricted Subsidiary in accordance with the
respective organizational documents of each such Restricted Subsidiary and the
material rights (charter and statutory) and franchises of the Company and each
such Restricted Subsidiary; PROVIDED, HOWEVER, that neither the Company nor any
such Restricted Subsidiary shall be required to preserve, with respect to
itself, any material right or franchise and, with respect to any of its
Restricted Subsidiaries, any such existence, material right or franchise, if the
Board of Directors of the Company shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the Restricted Subsidiaries, taken as a whole.
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall, and shall cause each Restricted Subsidiary to,
maintain its material properties in good working order and condition (subject to
ordinary wear and tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively conduct and carry
on its business; PROVIDED, HOWEVER, that nothing in this Section 4.05 shall
prevent the Company or any Restricted Subsidiary from
34
discontinuing the operation and maintenance of any of its properties, if such
discontinuance is, in the good faith judgment of the Board of Directors of the
Company or the Restricted Subsidiary, as the case may be, desirable in the
conduct of their respective businesses and is not disadvantageous in any
material respect to the Holders; PROVIDED, FURTHER that nothing in this Section
4.05 shall prevent the Company or any of its Restricted Subsidiaries from
discontinuing or disposing of any properties to the extent otherwise permitted
by this Indenture.
(b) The Company shall provide or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Board of Directors of the Company, are adequate and appropriate
for the conduct of the business of the Company and such Restricted Subsidiaries
in a prudent manner, with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Board of Directors of the Company, for companies
similarly situated in the industry.
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of the Company's fiscal year, an Officers' Certificate, one of the signers
of which shall be the principal executive officer, principal financial officer
or principal accounting officer of the Company, stating that a review of its
activities and the activities of its Subsidiaries and Guarantors during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge the Company during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no Default or
Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or,
if such signers do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section 4.08
shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company or any Guarantor has
violated any provisions of Article Four, Five or Six of this Indenture insofar
as they relate to accounting matters or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 13.02 hereof,
by registered or certified mail or by facsimile transmission followed by
35
hard copy by registered or certified mail an Officers' Certificate specifying
such event, notice or other action within five Business Days of its becoming
aware of such occurrence.
SECTION 4.07. COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.08. SEC REPORTS.
(a) From and after December 31, 2002, whether or not required by the
rules and regulations of the Commission, so long as any Notes are outstanding,
the Company, or Holdings, if the reports of Holdings would satisfy the
requirements of the Company under the applicable rules and regulations as
specified below, will furnish to the Holders of Notes (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial condition and
results of operations of the Company and its consolidated Subsidiaries (showing
in reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports, in each within the time periods
specified in the Commission's rules and regulations. In addition, whether or not
required by the rules and regulations of the Commission, the Company or Holdings
will file a copy of all such information and reports with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors upon
request.
(b) In addition, the Company and the Guarantors have agreed that, for
so long as any Notes remain outstanding, they will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. The Company and the Guarantors will also comply with the other
provisions of TIA Section 314(a).
(c) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein,
36
including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.09. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company or any of its Restricted Subsidiaries
or to the Company or any of its Restricted Subsidiaries) on or in respect of
shares of Holdings', the Company's or any of its Restricted Subsidiaries'
Capital Stock to holders of such Capital Stock, in their capacity as such, (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
Holdings, the Company or any of its Restricted Subsidiaries or any warrants,
rights or options to purchase or acquire shares of any class of such Capital
Stock, (iii) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations (other than the purchase, repurchase or other acquisition of
Subordinated Obligations or Guarantor Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition); or (iv) make any Restricted Investment (each of the
foregoing actions set forth in clauses (i), (ii), (iii) and (iv) being referred
to as a "RESTRICTED PAYMENT"), if at the time of such Restricted Payment or
immediately after giving effect thereto:
(1) a Default or an Event of Default shall have occurred and be
continuing (or would result therefrom),
(2) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.12, or
(3) the aggregate amount of Restricted Payments made subsequent to the
Effective Date shall exceed the sum of: (w) 50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be
a loss, minus 100% of such loss) of the Company earned subsequent to the
Effective Date and on or prior to the end of the most recent fiscal quarter
ending prior to the date such Restricted Payment occurs
37
(the "REFERENCE DATE") (treating such period as a single accounting
period); plus (x) 100% of the aggregate net proceeds received by the
Company (including the fair market value of property other than cash) from
any Person (other than a Subsidiary of the Company) from the issuance and
sale subsequent to the Effective Date and on or prior to the Reference Date
of Qualified Capital Stock of the Company (including Capital Stock issued
upon the conversion of convertible Indebtedness or in exchange for
outstanding Indebtedness); plus (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate net proceeds
(including the fair market value of property other than cash) of any equity
contribution received by the Company; plus (z) 100% of the aggregate net
proceeds (including the fair market value of property other than cash) of
any (i) sale or other disposition of Restricted Investments made by the
Company and its Restricted Subsidiaries or (ii) dividend from, or the sale
of the stock of, an Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (i) the payment of any dividend
or the consummation of any irrevocable redemption within 60 days after the date
of declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
on the date of declaration or notice; (ii) if no Event of Default shall have
occurred and be continuing as a consequence thereof, the acquisition of any
shares of Capital Stock of the Company (the "RETIRED CAPITAL STOCK"), either (1)
solely in exchange for shares of Qualified Capital Stock of the Company (the
"REFUNDING CAPITAL STOCK"), or (2) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company, and, in the case
of subclause (1) of this clause (ii), the declaration and payment of dividends
on the Refunding Capital Stock in an aggregate amount per year no greater than
the aggregate amount of dividends per annum that was declarable and payable on
such Retired Capital Stock immediately prior to such retirement; PROVIDED that
at the time of the declaration of any such dividends, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof; (iii) payments for the purpose of and in an amount equal to the amount
required to permit Holdings to redeem or repurchase Holdings' common equity or
options in respect thereof, in each case in connection with the repurchase
provisions under employee stock option or stock purchase agreements or other
agreements to compensate management employees; PROVIDED that such redemptions or
repurchases pursuant to this clause (iii) shall not exceed $ * million (which
amount shall be increased (A) to $ * million upon consummation of an Initial
Public Offering and (B) by the amount of any proceeds to the Company from (x)
sales of Capital Stock of Holdings to management employees subsequent to the
Effective Date and (y) any "key-man" life insurance policies which are used to
make such redemptions or repurchases) in the aggregate; PROVIDED, FURTHER, that
the cancellation of Indebtedness owing to the Company from members of management
of the Company or any of its Restricted Subsidiaries in connection with a
repurchase of Capital Stock of Holdings will not be deemed to constitute a
Restricted Payment under the Indenture; (iv) the making of distributions, loans
or advances in an amount not to exceed $ * million per annum sufficient to
permit Holdings to pay the ordinary operating expenses of Holdings (including,
without limitation, directors' fees, indemnification obligations, professional
fees and expenses) related to Holdings' ownership of Capital Stock of the
Company; (v) the payment of any amounts pursuant to the Tax Allocation
Agreement; (vi) the
38
making of distributions, loans or advances in an amount not to exceed $[2.0]
million per annum sufficient to permit Holdings to pay the salaries or other
compensation of employees who perform services for both Holdings and the
Company; (vii) so long as no Default or Event of Default shall have occurred and
be continuing, payments to Holdings not to exceed $100,000 in the aggregate, to
enable Holdings to make payments to holders of its Capital Stock in lieu of
issuance of fractional shares of its Capital Stock; (viii) if no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence thereof and the Company would be permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12, other Restricted Payments in an aggregate amount not to
exceed $ * million; and (ix) repurchases of Capital Stock deemed to occur upon
the exercise of stock options if such Capital Stock represents a portion of the
exercise price thereof. In determining the aggregate amount of Restricted
Payments made subsequent to the Effective Date in accordance with clause (3) of
the immediately preceding paragraph, (a) amounts expended (to the extent such
expenditure is in the form of cash) pursuant to clauses (i), (ii), (iii), (vii)
and (viii) shall be included in such calculation; PROVIDED such expenditures
pursuant to clause (iii) shall not be included to the extent of cash proceeds
received by the Company from any "key man" life insurance policies and (b)
amounts expended pursuant to clauses (iv), (v), (vi), or (ix) shall be excluded
from such calculation.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates involving aggregate
consideration in excess of $1.0 million (an "AFFILIATE TRANSACTION"), other than
(x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions on terms that are not materially less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on
an arm's-length basis from a Person that is not an Affiliate; PROVIDED, HOWEVER,
that for a transaction or series of related transactions with an aggregate value
of $7.5 million or more but less than $10.0 million, at the Company's option (i)
such determination shall be made in good faith by a majority of the
disinterested members of the Board of the Directors of the Company or (ii) the
Board of Directors of the Company and any such Restricted Subsidiary party to
such Affiliate Transaction shall have received an opinion from a nationally
recognized investment banking firm that such Affiliate Transaction is on terms
not materially less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate; and PROVIDED, FURTHER, that for a transaction
or series of related transactions with an aggregate value of $10.0 million or
more, the Board of Directors of the Company and any such Restricted Subsidiary
party to such Affiliate Transaction shall have received an opinion from a
nationally recognized investment banking firm that such Affiliate Transaction is
on terms not materially less favorable than those that might reasonably have
been obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate.
(b) The restrictions of Section 4.11(a) shall not apply to (i)
reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees or consultants of Holdings, the Company or any
Subsidiary as determined in good faith by the
39
Company's Board of Directors or senior management; (ii) transactions exclusively
between or among the Company and any of its Restricted Subsidiaries or
exclusively between or among such Restricted Subsidiaries, PROVIDED such
transactions are not otherwise prohibited by the Indenture; iii) transactions
effected as part of a Qualified Securitization Transaction; (iv) any agreement
as in effect as of the Effective Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Effective Date; (v)
Restricted Payments or Permitted Investments permitted by this Indenture; (vi)
payments or loans to employees or consultants which are approved by the Board of
Directors of the Company in good faith and which are incurred in the ordinary
course of business; (vii) the existence of, or the performance by Holdings, the
Company or any of its Restricted Subsidiaries of its obligations under the terms
of, any stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Effective
Date and any similar agreements which it may enter into thereafter; PROVIDED,
HOWEVER, that the existence of, or the performance by Holdings, the Company or
any of its Restricted Subsidiaries of obligations under, any future amendment to
any such existing agreement or under any similar agreement entered into after
the Effective Date shall only be permitted by this clause (vii) to the extent
that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Holders of the Notes in any material respect; (viii)
transactions permitted by, and complying with, the provisions of Section 5.01;
and (ix) transactions with customers, clients, suppliers, joint venture partners
or purchasers or sellers of goods or services, in each case in the ordinary
course of business (including, without limitation, pursuant to joint venture
agreements) and otherwise in compliance with the terms of the Indenture which
are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of the Company or the senior management
thereof, or are on terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party.
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of any such Indebtedness, the Company and any
Guarantor may incur Indebtedness if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is at least 2.0 to 1.0.
(b) Neither the Company nor any Guarantor will incur any Indebtedness
under Section 4.12(a) if the proceeds thereof are used, directly or indirectly,
to refinance any Subordinated Obligations or Guarantor Senior Subordinated
Indebtedness of the Company or any Guarantor, as applicable, unless such
Indebtedness will be subordinated to the Notes or such Guarantee to at least the
same extent as such Subordinated Obligations or such Guarantor Senior
Subordinated Indebtedness.
40
(c) For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
PROVIDED that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-dominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
U.S. dollar-dominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed
the principal amount of such Indebtedness being refinanced. Notwithstanding any
other provision of this covenant, the maximum amount of Indebtedness that the
Company or any Guarantor may incur pursuant to this covenant shall not be deemed
to be exceeded solely as a result of fluctuations in the exchange rate of
currencies (including for purposes of determination of (x) any basket amount in
any clause of the definition of "Permitted Indebtedness" or (y) whether any
violation of the Indenture has occurred for purposes of determining whether such
debt constitutes "Senior Debt" or "Guarantor Senior Debt" and, PROVIDED that the
full amount of any revolving credit facility shall be deemed to have been
incurred on the date such facility is established and not on the date of any
draws on such facility). The principal amount of any Indebtedness incurred to
refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such Refinancing
Indebtedness is denominated that is in effect on the date of such refinancing.
(d) For purposes of determining compliance with, and the outstanding
principal amount of a particular Indebtedness incurred pursuant to and in
compliance with this Section 4.12, in the event such Indebtedness meets the
criteria on the date on which it was incurred of more than one of the types of
Indebtedness described in clauses (i) through (xv) of the definition of
"Permitted Indebtedness" or described in Section 4.12(a), (a) the Company may,
in its sole discretion, classify (or later reclassify) such item of Indebtedness
and only be required to include the amount and type of such Indebtedness
described in either clauses (i) through (xv) of the definition of "Permitted
Indebtedness" or described in Section 4.12(a), or any combination thereof, and
(b) the Company, in its sole discretion, may reclassify such item of
Indebtedness under a different paragraph or clause of this Section 4.12 so long
as such Indebtedness met the criteria of such paragraph or clause on the date on
which it was incurred.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to (a) pay dividends or make any
other distributions on or in respect of its Capital Stock, (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of:
41
(1) applicable law;
(2) the Indenture;
(3) non-assignment provisions of any contract or any lease entered into in
the ordinary course of business;
(4) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or
assets of the Person so acquired;
(5) agreements existing on the Effective Date;
(6) the Bank Credit Agreement;
(7) restrictions on the transfer of assets subject to any Lien permitted
under the Indenture imposed by the holder of such ▇▇▇▇;
(8) restrictions imposed by any agreement to sell assets or Capital Stock
permitted under the Indenture to any Person pending the closing of
such sale;
(9) any agreement or instrument governing Capital Stock of any Person that
is acquired (other than Indebtedness incurred as consideration in, or
to provide all or any portion of the funds utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired
by the Company in contemplation of the transaction);
(10) Indebtedness or other contractual requirements of a Securitization
Entity in connection with a Qualified Securitization Transaction;
PROVIDED that such restrictions apply only to such Securitization
Entity;
(11) any agreement or instrument governing Indebtedness (whether or not
outstanding) of foreign Restricted Subsidiaries of the Company
incurred in reliance on clause (iii) of the definition of Permitted
Indebtedness;
(12) any agreement or instrument governing any other Indebtedness permitted
to be incurred subsequent to the Effective Date pursuant to the
provisions of clauses (ii), (iii), (x), (xiv) and (xvi) of the
definition of "Permitted Indebtedness"; PROVIDED that any such
restrictions are ordinary and customary with respect to the type of
Indebtedness being incurred (under the relevant circumstances);
(13) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business; and
(14) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (1)
42
through (13) above; PROVIDED that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the
Company's Board of Directors, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
SECTION 4.14. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED DEBT
AND GUARANTOR SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not incur any Indebtedness if such Indebtedness is
contractually subordinate or junior in ranking to any Senior Debt unless such
Indebtedness is Senior Subordinated Debt or is contractually subordinated in
right of payment to Senior Subordinated Debt. No Guarantor will incur any
Indebtedness if such Indebtedness is contractually subordinate or junior in
ranking in any respect to any Guarantor Senior Indebtedness of such Guarantor
unless such Indebtedness is Guarantor Senior Subordinated Indebtedness of such
Guarantor or is contractually subordinated in right of payment to Guarantor
Senior Subordinated Indebtedness of such Guarantor.
SECTION 4.15. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer to purchase all outstanding Notes pursuant to the offer described in
paragraph (b) below (the "CHANGE OF CONTROL OFFER") at a purchase price equal to
101% of the principal amount thereof plus accrued interest, if any, to the date
of purchase. Prior to the mailing of the notice referred to below, but in any
event within 45 days following any Change of Control, the Company shall (i)
repay in full and terminate all commitments under Indebtedness under the Bank
Credit Agreement, and all other Senior Debt the terms of which require repayment
upon a Change of Control, or offer to repay in full and terminate all
commitments under all Indebtedness under the Bank Credit Agreement and all such
other such Senior Debt and to repay the Indebtedness owed to each lender which
has accepted such offer, or (ii) obtain the requisite consents under the Bank
Credit Agreement and all other Senior Debt to permit the repurchase of the Notes
as provided below. The Company shall first comply with the covenant in the
immediately preceding sentence before it shall be required to repurchase Notes
pursuant to the provisions described in this Section 4.15. The Company's failure
to comply with the second preceding sentence and the Company's failure to send
the notice referred to below because of the requirements of the second preceding
sentence may (with notice and lapse of time) shall constitute an Event of
Default under Section 6.01(3) but shall not constitute an Event of Default under
Section 6.01(2).
(b) Within 45 days following the date upon which the Change of Control
occurred (the "CHANGE OF CONTROL DATE"), the Company shall send, by first class
mail, a notice to each Holder, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. Such notice shall state:
43
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn will be accepted
for payment;
(2) the purchase price (including the amount of accrued interest) and
the purchase date (which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed, other than as may be required by
law) (the "CHANGE OF CONTROL PAYMENT DATE"); PROVIDED that the Change of
Control Payment Date for the Notes shall be a date subsequent to any
payment dates for the purchase or other repayment of Senior Debt having
similar provisions;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefore, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his
election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; PROVIDED that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient
to pay the purchase price plus accrued interest, if any, of all Notes so
tendered and (iii) deliver to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any, and the Trustee shall promptly authenticate and mail to such Holders new
Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so accepted shall be promptly mailed by the Company
to the Holder thereof. For purposes of this Section 4.15, the Trustee shall act
as the Paying Agent.
44
Any amounts remaining after the purchase of Notes pursuant to a Change
of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.15, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.15 by virtue thereof.
SECTION 4.16. LIMITATION ON ASSET SALES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be cash or Cash Equivalents; PROVIDED that the amount of (a) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or any such Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Notes) that are
assumed by the transferee of any such assets, and (b) any notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are immediately converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received), shall be deemed to be
cash for the purposes of this provision or for purposes of the third paragraph
of this covenant, and (iii) upon the consummation of an Asset Sale, the Company
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either (A) to
prepay any Senior Debt or any Guarantor Senior Debt and, in the case of any
Senior Debt or Guarantor Senior Debt under any revolving credit facility, effect
a permanent reduction in the availability under such revolving credit facility,
(B) to reinvest in Productive Assets, or (C) a combination of prepayment,
repurchase and investment permitted by the foregoing clauses (iii)(A) and
(iii)(B). Pending the final application of any such Net Cash Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce Indebtedness under
a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds
in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date,
if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (iii)(A), (iii)(B) or (iii)(C) of the next
preceding sentence (each, a "NET PROCEEDS OFFER TRIGGER DATE"), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each a "NET PROCEEDS OFFER AMOUNT")
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER
PAYMENT DATE") not less than 30 nor more than 45 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that
amount of Notes equal to the Net Proceeds Offer Amount at a price equal to 100%
of the principal amount of the Notes to be purchased, plus accrued and unpaid
interest thereon, if any,
45
to the date of purchase; PROVIDED, HOWEVER, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this covenant.
Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less
than $10.0 million, the application of the Net Cash Proceeds constituting such
Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such
time as such Net Proceeds Offer Amount plus the aggregate amount of all Net
Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date
relating to such initial Net Proceeds Offer Amount from all Asset Sales by the
Company and its Restricted Subsidiaries aggregates at least $10.0 million, at
which time the Company or such Restricted Subsidiary shall apply all Net Cash
Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred
to make a Net Proceeds Offer (the first date the aggregate of all such deferred
Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to
be a "NET PROCEEDS OFFER TRIGGER DATE").
Each Net Proceeds Offer will be mailed to the record Holders as shown
on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering
Holders will be purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 business days or such longer
period as may be required by law. To the extent that the aggregate amount of
Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds
Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for
general corporate purposes. Upon completion of any such Net Proceeds Offer, the
Net Proceeds Offer Amount shall be reset at zero.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in the second paragraph of subsection (a) above, each notice of a Net
Proceeds Offer pursuant to this Section 4.16 shall be mailed or caused to be
mailed, by first class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last registered addresses as
of a date within 15 days of the mailing of such notice, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall
state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section 4.16
and that all Notes tendered will be accepted for payment; PROVIDED,
HOWEVER, that if the aggregate principal amount of Notes tendered in a Net
Proceeds Offer plus accrued interest at the expiration of such offer
exceeds the aggregate amount of the Net Proceeds Offer, the Company shall
select the Notes to be purchased on a PRO RATA basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or multiples thereof shall be purchased);
46
(2) the purchase price (including the amount of accrued interest) and
the purchase date (which shall be 20 Business Days from the date of mailing
of notice of such Net Proceeds Offer, or such longer period as required by
law) (the "PROCEEDS PURCHASE DATE"); PROVIDED that the Proceeds Purchase
Date for the Notes shall be a date subsequent to any payment dates for the
purchase or other repayment of Senior Debt having similar provisions;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefore, any
Note accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day prior to the Proceeds
Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his
election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; PROVIDED that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof.
On or before the Proceeds Purchase Date, the Company shall (i) accept
for payment Notes or portions thereof tendered pursuant to the Net Proceeds
offer which are to be purchased in accordance with item (b)(1) above, (ii)
deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase
price plus accrued interest, if any, of all Notes to be purchased and (iii)
deliver to the Trustee Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price plus accrued interest, if any. For purposes
of this Section 4.16, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to a Net Proceeds Offer. To the extent the provisions of any
securities laws or regulations conflict with the provisions of this Indenture
relating to a Net Proceeds Offer, the Company shall comply with
47
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations relating to such Net Proceeds offer by virtue thereof.
SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly-Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company, other than
Permitted Domestic Subsidiary Preferred Stock.
SECTION 4.18. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, incur, assume or suffer to exist any Liens of any kind against or
upon any of its property or assets, or any proceeds therefrom, unless (i) in the
case of Liens securing Indebtedness that is expressly subordinate or junior in
right of payment to the Notes or any Guarantee, as applicable, the Notes or such
Guarantee, as the case may be, are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens and (ii) in all other cases,
the Notes or Guarantees, as the case may be, are equally and ratably secured,
except for (A) Liens existing as of the Effective Date and any extensions,
renewals or replacements thereof, (B) Liens securing Senior Debt and Guarantor
Senior Debt (whether incurred by the Company or a Restricted Subsidiary), (C)
Liens securing the Notes and the Guarantees, (D) Liens of the Company or a
Wholly Owned Restricted Subsidiary of the Company on assets of any Subsidiary of
the Company, (E) Liens securing Indebtedness which is incurred to refinance
Indebtedness which has been secured by a Lien permitted under this Indenture and
which has been incurred in accordance with the provisions of this Indenture;
PROVIDED, HOWEVER, that such Liens do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so refinanced, and (F) Permitted Liens.
SECTION 4.19. FUTURE GUARANTORS.
After the Effective Date, the Company will cause each Restricted
Subsidiary other than a Foreign Subsidiary or Securitization Entity created or
acquired by the Company or one or more of its Restricted Subsidiaries that
becomes a Guarantor under the Bank Credit Agreement to execute and deliver to
the Trustee a Guarantee pursuant to which such Guarantor will unconditionally
guarantee, on a joint and several basis, the full and prompt payment of the
principal of, premium, if any, and interest on the Notes on a senior
subordinated basis.
SECTION 4.20. LIMITATION OF GUARANTEES BY SUBSIDIARIES.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, by way of the pledge of any intercompany note or otherwise, to
assume, guarantee or in any other manner become liable with respect to any
Indebtedness of the Company or any other Subsidiary (other than (A) Indebtedness
and other obligations under the Bank Credit Agreement (whether outstanding on
the Effective Date or thereafter incurred), (B) Permitted Indebtedness of a
Restricted Subsidiary, (C) Indebtedness under Currency Agreements in reliance on
clause (vi) of the definition of Permitted Indebtedness or (D) Interest Swap
Obligations incurred in reliance on
48
clause (v) of the definition of Permitted Indebtedness), unless, in any such
case (a) such Restricted Subsidiary executes and delivers a supplemental
indenture to the Indenture, providing a Guarantee of the Notes by such
Restricted Subsidiary and (b) (x) if any such assumption, guarantee or other
liability of such Restricted Subsidiary is provided in respect of Senior Debt,
the guarantee or other instrument provided by such Restricted Subsidiary in
respect of such Senior Debt may be superior to the Guarantee pursuant to
subordination provisions no less favorable to the Holders of the Notes than
those contained in the Indenture and (y) if such assumption, guarantee or other
liability of such Restricted Subsidiary is provided in respect of Indebtedness
that is expressly subordinated to the Notes, the guarantee or other instrument
provided by such Restricted Subsidiary in respect of such subordinated
Indebtedness shall be subordinated to the Guarantee pursuant to subordination
provisions no less favorable to the Holders of the Notes than those contained in
the Indenture.
Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection with which such Guarantee was executed
and delivered pursuant to the preceding paragraph; or (ii) any sale or other
disposition (by merger or otherwise) to any Person which is not a Restricted
Subsidiary of the Company, of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary; PROVIDED that
(a) such sale or disposition of such Capital Stock or assets is otherwise in
compliance with the terms of the Indenture and (b) such assumption, guarantee or
other liability of such Restricted Subsidiary has been released by the holders
of the other Indebtedness so guaranteed.
SECTION 4.21. CONDUCT OF BUSINESS.
The Company and its Restricted Subsidiaries shall not engage in any
businesses a majority of whose revenues are not derived from the same or
reasonably 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 Effective Date.
[SECTION 4.22. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries will,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fees or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Indenture or the Notes unless such consideration is offered to be paid or
is paid to all holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or amendment.]
49
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, another Person or Persons or adopt a Plan of Liquidation unless:
(i) either (A) the Company shall be the survivor of such merger or
consolidation or (B) the surviving Person is a corporation, partnership or
trust organized and existing under the laws of the United States, any state
thereof or the District of Columbia and such surviving Person shall
expressly assume all the obligations of the Company under the Notes and
this Indenture;
(ii) immediately after giving effect to such transaction (on a pro
forma basis, including any Indebtedness incurred or anticipated to be
incurred in connection with such transaction), the Company or the surviving
Person is able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.12;
(iii) each Guarantor, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture and
the Notes; and
(iv) immediately before and immediately after giving effect to such
transaction (including any Indebtedness incurred or anticipated to be
incurred in connection with the transaction), no Default or Event of
Default shall have occurred and be continuing.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Company, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clauses (ii) and (iv), (a) any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction.
(c) Subject to Section 11.02 hereof governing the release of a
Guarantee, each Guarantor will not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, another Person or Persons or adopt a Plan of Liquidation unless:
(i) either (A) such Guarantor shall be the survivor of such merger or
consolidation or (B) the surviving Person is a corporation, partnership or
trust organized
50
and existing under the laws of the United States, any state thereof or the
District of Columbia and such surviving Person shall expressly assume all
the obligations of the Guarantor under its Guarantee and the Indenture
(such Guarantor or such Person, as the case may be, being herein call the
"SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Guarantor) expressly
assumes all the obligations of such Guarantor under the Indenture and its
Guarantee pursuant to a supplemental indenture or other documents or
instruments in form reasonably satisfactory to the Trustee; and
(iii) immediately before and immediately after giving effect to such
transaction (including any Indebtedness incurred or anticipated to be
incurred by the Successor Guarantor or any of its Subsidiaries in
connection with the transaction), no Default or Event of Default shall have
occurred and be continuing.
SECTION 5.02. SUCCESSOR CORPORATION AND GUARANTORS SUBSTITUTED.
(a) Upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with the
foregoing, the surviving entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture and the
Notes with the same effect as if such surviving entity had been named as such;
PROVIDED that solely for purposes of computing amounts described in clause
(iv)(3) of the first paragraph of Section 4.10(a), any such surviving entity to
the Company shall only be deemed to have succeeded to and be substituted for the
Company with respect to periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets.
(b) Subject to Section 11.02, upon any consolidation, combination or
merger or any transfer of all or substantially all of the assets of a Guarantor
in accordance with the foregoing, the surviving entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor under
this Indenture and such Guarantor's Guarantee with the same effect as if such
surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Company fails to pay interest on any Note when the same
becomes due and payable and the default continues for a period of 30 days
(whether or not such payment shall be prohibited by Article Ten of this
Indenture); or
(2) the Company fails to pay the principal on any Note when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control
51
Offer or a Net Proceeds Offer) (whether or not such payment shall be
prohibited by Article Ten); or
(3) the Company defaults in the observance or performance of any other
covenant or agreement contained in this Indenture and which default
continues for a period of 30 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes; or
(4) the Company fails to pay at final stated maturity (giving effect
to any applicable grace period and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
(other than a Securitization Entity) of the Company, and such failure
continues for a period of 20 days or more, or the acceleration of the final
stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 20 days of receipt by the
Company or such Restricted Subsidiary of notice of any such acceleration)
if the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to
pay principal at final stated maturity or which has been accelerated, in
each case with respect to which the 20-day period described above has
passed, aggregates $20.0 million or more at any time; or
(5) one or more judgments in an aggregate amount in excess of $20.0
million shall have been rendered against the Company or any of its
Significant Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable; or
(6) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for relief
against it in an involuntary case or proceeding under any Bankruptcy Law,
(C) consents to the appointment of a Custodian of it or for substantially
all of its property, (D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (E) makes a general
assignment for the benefit of its creditors, or (F) takes any corporate
action to authorize or effect any of the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary in
an involuntary case or proceeding under any Bankruptcy Law, which shall (A)
approve as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any Significant
Subsidiary, (B) appoint a Custodian of the Company or any Significant
Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(8) any Guarantee ceases to be in full force and effect (except as
contemplated by the terms of the Indenture) or is declared null and void in
a judicial proceeding or any Guarantor denies or disaffirms its obligations
under the Indenture or its Guarantee.
52
Any Event of Default shall not be deemed to have occurred under clause
(4) or (5) until the Trustee shall have received written notice from the Company
or any of the Holders or unless a Trust Officer shall have actual knowledge of
such Event of Default.
SECTION 6.02. ACCELERATION.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, then the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes may declare the
principal of and accrued interest on all the Notes to be due and payable by
notice in writing to the Company and the Trustee specifying the respective Event
of Default and that it is a "notice of acceleration" (the "ACCELERATION
NOTICE"), and the same (i) shall become immediately due and payable or (ii) if
there are any amounts outstanding under the Bank Credit Agreement, shall become
due and payable upon the first to occur of an acceleration under the Bank Credit
Agreement or 5 business days after receipt by the Company and the Representative
under the Bank Credit Agreement of such Acceleration Notice but only if such
Event of Default is then continuing. Upon any such declaration, but subject to
the immediately preceding sentence, such amount shall be immediately due and
payable.
(b) If an Event of Default specified in Section 6.01(6) or (7) occurs
with respect to the Company, all unpaid principal and accrued interest on the
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Noteholder.
(c) At any time after a declaration of acceleration with respect to
the Notes in accordance with Section 6.02(a), the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
Section 6.01(6) or (7), the Trustee shall have received an Officers' Certificate
and an Opinion of Counsel that such Event of Default has been cured or waived.
The holders of a majority in principal amount of the Notes may waive any
existing Default or Event of Default under this Indenture, and its consequences,
except a default in the payment of the principal of or interest on any Notes.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
53
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Note as specified in clauses (1)
and (2) of Section 6.01. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it, including, without limitation, any remedies provided for
in Section 6.03. Subject to Section 7.01, however, the Trustee may refuse to
follow any direction that the Trustee reasonably believes conflicts with any law
or this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of another Noteholder, or that may involve the Trustee in personal
liability; PROVIDED that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and PROVIDED FURTHER
that this provision shall not affect the rights of the Trustee set forth in
Section 7.01(d).
SECTION 6.06. LIMITATION ON SUITS.
A Noteholder may not pursue any remedy with respect to this Indenture
or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer of satisfactory indemnity; and
54
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction which,
in the opinion of the Trustee, is inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Noteholder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07 hereunder. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
55
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Noteholders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS.
Neither the Company nor any Guarantor (to the extent it may lawfully
do so) shall at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company and each Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and no covenants or obligations shall be implied in
this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(e) Whether or not herein expressly provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate, an
Opinion of Counsel or both, which shall conform to Sections 11.04 and 11.05. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel or advice
of such counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or indirectly or by or through
agents or attorneys and the Trustee shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or attorney and to
consult with the officers and representatives of the Company, including the
Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such request, order
or direction.
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(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) The Trustee shall not be deemed to have notice of any default or
Event of Default unless a Trust Officer has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at its principal corporate trust office, and such notice references the
Notes and this Indenture,
(i) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary of the Company, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The recitals contained herein and in the Notes shall be taken as
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, and it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Company in this Indenture or the Notes other than the
Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Noteholder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Note, including an accelerated
payment and the failure to make payment on the Change of Control Payment Date
pursuant to a Change of Control Offer or on the Proceeds Purchase Date pursuant
to a Net Proceeds Offer and, except in the case of a failure to comply with
Article V hereof, the Trustee may withhold the notice if and so long as its
Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Noteholders.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, the Trustee shall, to the extent
that any of the events described in TIA Section 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Noteholder a brief
report dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and any delisting thereof, and the Trustee shall
comply with TIA Section 313(d).
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed between the Issuer and the Trustee for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable fees and expenses, including
out-of-pocket expenses incurred or made by it in connection with the performance
of its duties under this Indenture. Such expenses shall include the reasonable
fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee and its agents, employees, stockholders and directors and officers for,
and hold them harmless against, any and all loss, liability or expense incurred
by them except for such actions to the extent caused by any negligence, bad
faith or willful misconduct on their part, arising out of or in connection with
the acceptance or administration of this trust including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. At the Trustee's
sole discretion, the Company shall defend the claim and the Trustee shall
cooperate and may participate in the defense; PROVIDED that any settlement of a
claim shall be approved in writing by the Trustee. Alternatively, the Trustee
may at its option have separate counsel of its own choosing and the Company
shall pay the reasonable fees and expenses of such counsel; PROVIDED that the
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense as reasonably determined by the
Trustee. The Company need not pay for any settlement made without its written
consent. The Company need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes. The Trustee's
right to receive payment of any amounts due under this Section
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7.07 shall not be subordinate to any other liability or indebtedness of the
Company (even though the Notes may be subordinate to such other liability or
indebtedness).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law; PROVIDED, HOWEVER, that this shall not
affect the Trustee's rights as set forth in the preceding paragraph or Section
6.10.
The provisions of this Section 7.07 shall survive termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor Trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; PROVIDED that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital requirements of TIA Section 310(a)(2). The Trustee shall comply with TIA
Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met. The provisions of TIA Section 310 shall apply to
the Company, as obligor of the Notes.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company, as obligor on the
Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
The Company may terminate its obligations and the obligations of the
Guarantors under the Notes and this Indenture, except those obligations referred
to in the penultimate paragraph of this Section 8.01, if all Notes previously
authenticated and delivered (other than destroyed, lost or stolen Notes which
have been replaced or paid or Notes for whose payment U.S. Legal Tender has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder, or if:
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(a) either (i) pursuant to Article Three, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of the
redemption of all of the Notes under arrangements satisfactory to the Trustee
for the giving of such notice or (ii) all Notes have otherwise become due and
payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, as trust funds in trust solely for the benefit of the Holders for
that purpose, U.S. Legal Tender in such amount as is sufficient without
consideration of reinvestment of such interest, to pay principal of, premium, if
any, and interest on the outstanding Notes to maturity or redemption; PROVIDED
that the Trustee shall have been irrevocably instructed to apply such U.S. Legal
Tender to the payment of said principal, premium, if any, and interest with
respect to the Notes and, PROVIDED, FURTHER, that from and after the time of
deposit, the money deposited shall not be subject to the rights of holders of
Senior Debt pursuant to the provisions of Article Ten;
(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument or
agreement to which the Company or any of its Subsidiaries is a party or by which
it is bound (including, without limitation, the Bank Credit Agreement);
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligations under the
Notes and this Indenture have been complied with. Such Opinion of Counsel shall
also state that such satisfaction and discharge, does not result in a default
under the Bank Credit Agreement (if then in effect) or any other agreement or
instrument then known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by Board Resolution of the Board of
Directors of the Company, at any time, elect to have either paragraph (b) or (c)
below be applied to all outstanding Notes upon compliance with the conditions
set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions
63
set forth in Section 8.03, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.04 hereof and the other Sections of this Indenture referred to in (i) and (ii)
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), and Holders of the
Notes and any amounts deposited under Section 8.03 hereof shall cease to be
subject to any obligations to, or the rights of, any holder of Senior Debt under
Article Ten or otherwise, except for the following provisions, which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Notes when such payments are
due, (ii) the Company's obligations with respect to such Notes under Article Two
and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (iv) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) hereof. In the event that the
Company terminates all of its obligations under the Notes and this Indenture by
exercising its Legal Defeasance option, the obligations under the Guarantees
shall each by terminated simultaneously with the termination of such
obligations.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, be released
from its obligations under the covenants contained in Sections 4.10 through 4.20
and Article Five hereof with respect to the outstanding Notes on and after the
date the conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes) and Holders of the Notes and any amounts deposited under Section 8.03
hereof shall cease to be subject to any obligations to, or the rights of, any
holder of Senior Debt under Article Ten or otherwise. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event or Default under Section 6.01(3) hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, Sections
6.01(3), 6.01(4) and 6.01(5) shall not constitute Events of Default.
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SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company has irrevocably deposited with the Trustee, in trust,
for the benefit of the Holders, U.S. Legal Tender or U.S. Government
Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of and interest on the Notes on
the stated date for payment thereof or on the applicable redemption date,
as the case may be, of such principal or installment of principal of or
interest on the Notes; PROVIDED that the Trustee shall have received an
irrevocable written order from the Company instructing the Trustee to apply
such U.S. Legal Tender or the proceeds of such U.S. Government Obligations
to said payments with respect to the Notes;
(b) in the case of an election under Section 8.02(b) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) in the case of an election under Section 8.02(c) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default or event which with notice or lapse
of time or both would become a Default or an Event of Default with respect
to the Notes shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
incurrence of Indebtedness all or a portion of the proceeds of which will
be used to defease the Notes pursuant to this Article Eight concurrently
with such incurrence) or insofar as Sections 6.01(6) and 6.01(7) hereof are
concerned, at any time in the period ending on the 91st day after the date
of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of or constitute a default under this Indenture, the
Bank Credit Agreement or any other material agreement or instrument
(including, without limitation, the Bank
65
Credit Agreement) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the trust funds will not be subject to any
rights of any holders of Indebtedness of the Company other than the Notes,
and (ii) assuming no intervening bankruptcy or insolvency of the Company
between the date of deposit and the 91st day following the deposit and that
no Holder is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law.
SECTION 8.04. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Article Eight, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of principal of and
interest on the Notes. The Trustee shall be under no obligation to invest said
U.S. Legal Tender or U.S. Government Obligations except as it may agree with the
Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender or U. S. Government obligations held by it as
provided in Section 8.03 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.05. REPAYMENT TO THE COMPANY.
Subject to Article Eight, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money.
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The Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed for
two years; PROVIDED that the Trustee or such Paying Agent, before being required
to make any payment, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of
New York or mail to
each Holder entitled to such money notice that such money remains unclaimed and
that after a date specified therein which shall be at least 30 days from the
date of such publication or mailing any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Noteholders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Article Eight by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Article
Eight until such time as the Trustee or Paying Agent is permitted to apply all
such U.S. Legal Tender or U.S. Government obligations in accordance with Article
Eight; PROVIDED that if the Company has made any payment of interest on or
principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Subject to Section 9.03, the Company, when authorized by a Board
Resolution, and the Trustee, together, may amend or supplement this Indenture or
the Notes without notice to or consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency that does not
adversely affect the rights of any Noteholder;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Noteholders or that does not adversely affect the rights of
any Noteholder; or
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(6) to make any other change that does not, in the opinion of the
Trustee, adversely affect in any material respect the rights of any
Noteholders hereunder;
PROVIDED that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Sections 6.07 and 9.03, the Company, when authorized by a
Board Resolution, and the Trustee, together, with the written consent of the
Holder or Holders of at least a majority in aggregate principal amount of the
outstanding Notes, may amend or supplement this Indenture or the Notes, without
notice to any other Noteholders. Subject to Sections 6.07 and 9.03, the Holder
or Holders of a majority in aggregate principal amount of the outstanding Notes
may waive compliance by the Company with any provision of this Indenture or the
Notes without notice to any, other Noteholder. No amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, shall, without the consent
of each Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any Notes;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or repurchase, or reduce the redemption or
repurchase price therefore;
(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce such
payment, permitting holders of a majority in principal amount of Notes to
waive Defaults or Events of Default, other than ones with respect to the
payment of principal of or interest on the Notes;
(6) amend, modify or change in any material respect the obligation of
the Company to make or consummate a Change of Control Offer in the event of
a Change of Control or make and consummate a Net Proceeds Offer in respect
of any Asset Sale that has been consummated or modify any of the provisions
or definitions with respect thereto, in each case, after a Change of
Control has occurred or the subject Asset Sale has been consummated;
(7) release any Guarantor that is a Significant Subsidiary from any of
its obligations under its Guarantee, except in accordance with the terms of
this Indenture; or
(8) modify Article Ten or Article Twelve or the definitions used in
Article Ten or Article Twelve to adversely affect the Holders of the Notes
in any material respect.
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It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. EFFECT ON SENIOR DEBT AND GUARANTOR SENIOR DEBT.
No amendment, or supplement or waiver to, of this Indenture (including
the definitions contained herein) shall adversely affect the rights of any
holder of Senior Debt or Guarantor Senior Debt under Article Ten or Article
Twelve of this Indenture, without the consent of such holder of Senior Debt or
Guarantor Senior Debt, as the case may be.
SECTION 9.04. COMPLIANCE WITH ▇▇▇.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holders Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (1)
through (7) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; PROVIDED that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note, on or
69
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.
SECTION 9.06. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Any such notation
or exchange shall be made at the sole cost and expense of the Company.
SECTION 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. NOTES SUBORDINATED TO SENIOR DEBT.
The Company covenants and agrees, and the Trustee and each Holder of
the Notes, by its acceptance thereof, likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of this Article Ten; and the
Trustee and each Person holding any Note, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the payment of
all Obligations on the Notes by the Company shall, to the extent and in the
manner herein set forth, be subordinated and junior in right of payment to the
prior payment in full in cash or Cash Equivalents of all Obligations on the
Senior Debt; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt (including the Obligations
under or with respect to the Bank Credit Agreement), and that each holder of
Senior Debt whether now outstanding or hereafter created, incurred, assumed or
guaranteed shall be deemed to have acquired Senior Debt in reliance upon the
covenants and provisions contained in this Indenture and the Notes
Notwithstanding the foregoing, payments and distributions made with
U.S. Legal Tender or the proceeds of U.S. Government Obligations held in any
defeasance trust (as described in Section 8.03) shall not be subordinated in
right of payment to any Senior Debt, so long as all of the conditions to deposit
into such trust are satisfied at the time of such deposit and such payments and
distributions are otherwise permitted by the terms of all Senior Debt.
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SECTION 10.02. NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES.
(a) Unless Section 10.03 shall be applicable, if any default occurs
and is continuing in the payment when due, whether at maturity, upon redemption,
by declaration or otherwise, of any principal of, premium (if any) on, interest
on, unpaid drawings for letters of credit issued in respect of, or regularly
accruing fees with respect to, any Senior Debt, no payment or distribution of
any kind or character shall be made by, or on behalf of, the Company or any
other Person on its or their behalf with respect to any Obligations on or
relating to the Notes, or to acquire any of the Notes for cash or property or
otherwise. In addition, unless Section 10.03 shall be applicable, if any other
event of default occurs and is continuing with respect to any Designated Senior
Debt, as such event of default is defined in the instrument creating or
evidencing such Designated Senior Debt, permitting the holders of such
Designated Senior Debt then outstanding to accelerate the maturity thereof and
if the Representative for the respective issue of Designated Senior Debt gives
written notice of the event of default to the Trustee (a "DEFAULT NOTICE"),
then, unless and until all events of default have been cured or waived or have
ceased to exist or the Trustee receives notice thereof from the Representative
for the respective issue of Designated Senior Debt terminating the Blockage
Period (as defined below), during the 180 days after the delivery of such
Default Notice (the "BLOCKAGE PERIOD"), neither the Company nor any other Person
on its behalf shall (x) make any payment of any kind or character with respect
to any Obligations on, or with respect to the Notes or (y) acquire any of the
Notes for cash or property or otherwise. Notwithstanding anything herein to the
contrary, (I) in no event will a Blockage Period extend beyond 180 days from the
date the applicable Default Notice is received by the Trustee and (II) only one
such Blockage Period may be commenced within any 360 consecutive days. No
non-payment event of default which existed or was continuing on the date of the
commencement of any Blockage Period with respect to the Designated Senior Debt
shall be, or be made, the basis for the commencement of a subsequent Blockage
Period by the Representative of such Designated Senior Debt whether or not
within a period of 360 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, as their respective interests may
appear. The Trustee shall be entitled to rely on information regarding amounts
then due and owing on the Senior Debt, if any, received from the holders of
Senior Debt (or their Representatives) or, if such information is not received
from such holders or their Representatives, from the Company and only amounts
included in the information provided to the Trustee shall be paid to the holders
of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section
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6.02 or to pursue any rights or remedies hereunder (subject, however, to the
rights, if any, under this Article X, of the holders of Senior Debt in respect
of cash or other property of the Company received upon the exercise of any such
remedy); PROVIDED that all Senior Debt thereafter due or declared to be due
shall first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to
Obligations on, or with respect to, the Notes.
SECTION 10.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property, or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents (including interest after the
commencement of any bankruptcy or other like proceeding at the rate specified in
the applicable Senior Debt, whether or not such interest is an allowed claim in
any such proceeding), before any payment or distribution of any kind or
character is made on account of any Obligations on, or with respect to, the
Notes, or for the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Senior Debt (PRO
RATA to such holders on the basis of the respective amounts of Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefore to or for the holders of Senior
Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding paragraph) of the Company's obligation to make any
distribution or payment pursuant to any Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Senior Debt in cash or Cash Equivalents, shall have no
72
force or effect for purposes of the subordination provisions contained in this
Article X, with any turnover of payments as otherwise calculated pursuant to
this Article X to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by Section 10.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt (PRO RATA to such holders on the
basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefore to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five hereof.
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of and interest on the Notes, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual knowledge
by the Trustee that a given payment would be prohibited by Section 10.02, 10.03,
12.02 or 12.03, the application by the Trustee of any moneys deposited with it
for the purpose of making such payments of principal of, and interest on, the
Notes to the Holders entitled thereto unless at least two Business Days prior to
the date upon which such payment would otherwise become due and payable a Trust
Officer shall have actually received the written notice provided for in the
second sentence of Section 10.02(a) or in Section 10.07 (PROVIDED that,
notwithstanding the foregoing, the Holders receiving any payments made in
contravention of Sections 10.02 and/or 10.03 (and the respective such payments)
shall otherwise be subject to the provisions of the first sentence of Section
10.02(a) and Section 10.03). The Company shall give prompt written notice to the
Trustee of any dissolution, winding-up, liquidation or reorganization of the
Company, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein.
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SECTION 10.05. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein. Regardless of anything
to the contrary contained in this Article Ten or elsewhere in this Indenture,
the Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Company, or from a
holder of Senior Debt or a Representative therefore, and, prior to the receipt
of any such written notice, the Trustee shall be entitled to assume (in the
absence of actual knowledge to the contrary) that no such facts exist (PROVIDED
that, notwithstanding the foregoing, the Holders of the Notes receiving any
payments made in contravention of Section 10.02 and/or 10.03 (and the respective
such payments shall otherwise be subject to the provision of the first sentence
of Section 10.03). The Trustee shall be entitled to rely on the delivery to it
of any notice pursuant to this Section 10.07 to establish that such notice has
been given by a holder of Senior Debt (or a Representative therefore).
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In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceedings is pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
75
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Trustee or the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Notes to the holders of the Senior
Debt, do any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt, or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the payment or collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 10.11. NOTEHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF NOTES.
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this Article Ten, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its Notes and accrued
interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Debt or their Representative to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
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SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. GUARANTEES.
Each Guarantor hereby jointly and severally irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety,
subject to Article Twelve herein, to each Holder and to the Trustee and its
successors and assigns (a) the full and punctual payment when due, whether at
the Maturity Date, by acceleration, by redemption or otherwise, of all
Obligations of the Company under this Indenture (including obligations to the
Trustee) and the Notes, whether for payment of principal of, interest on or
liquidated damages in respect of the Notes and all other monetary obligations of
the Company under this Indenture and the Notes and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company whether for expenses, indemnification or otherwise under this Indenture
and the Notes (all the foregoing being hereinafter collectively called the
"GUARANTEED OBLIGATIONS"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from each such Guarantor, and that each such Guarantor shall
remain bound under this Article Eleven notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from and
protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each Guarantor
hereunder shall not be affected by (a) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (f) any
change in the ownership of such Guarantor, except as provided in Section
11.02(b).
Each Guarantor hereby waives any right to which it may be entitled to
have its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Company first be used and depleted as payment of the Company's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Company be sued prior to an action
being initiated against such Guarantor.
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Each Guarantor further agrees that its Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.
The Obligations of each Guarantor to the Holders of the Notes and to
the Trustee pursuant to the Guarantee of such Guarantor and this Indenture are
expressly subordinate and subject in right of payment to the prior payment in
full in cash or Cash Equivalents of all Guarantor Senior Debt to the extent and
in the manner provided in Article Twelve.
Except as expressly set forth in Sections 8.02(b), 11.02 and 11.06,
the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
Each Guarantor agrees that its Guarantee shall remain in full force
and effect until payment in full of all the Guaranteed Obligations. Each
Guarantor further agrees that its Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Guaranteed Obligation, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid principal amount of such Guaranteed Obligations
then due and owing, (ii) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (iii) all other
monetary obligations of the Company to the Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranteed Obligations
guaranteed hereby until payment in full of all Guaranteed Obligations and all
obligations to which the Guaranteed Obligations are subordinated as provided in
Article Twelve. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the
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maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of any Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such Guaranteed Obligations
as provided in Article Six, such Guaranteed Obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purposes of this Section 11.01.
Each Guarantor also agrees to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01.
Upon request of the Trustee, each Guarantor shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
SECTION 11.02. LIMITATION ON LIABILITY.
(a) Any term or provision of this Indenture to the contrary
notwithstanding, the maximum, aggregate amount of the Guaranteed Obligations
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that,
after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, all Guarantor Senior Debt of such
Guarantor) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, can be hereby guaranteed without rendering this Indenture, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) A Guarantee as to any Guarantor of the Company shall terminate and
be of no further force or effect and such Guarantor shall be deemed to be
released from all obligations under this Article Eleven upon (i) the merger or
consolidation of such Guarantor with or into any Person other than the Company
or a Restricted Subsidiary of the Company (other than a Securitization Entity)
whether or not such Guarantor is the surviving entity of such consolidation or
merger or (ii) the sale by the Company or any Subsidiary of the Company (or any
pledgee of the Company) of the Capital Stock or of all or substantially all of
the assets of such Guarantor to any Person other than the Company or a
Restricted Subsidiary of the Company (other than a Securitization Entity),
where, after such sale, such Guarantor is no longer a Subsidiary of the Company;
PROVIDED, HOWEVER, that each such merger, consolidation or sale (or, in the case
of a sale by such a pledgee, the disposition of the proceeds of such sale) shall
comply with this Indenture, including Section 4.16 and Section 5.01(c) and that
all the obligations of such Guarantor under the Bank Credit Agreement and
related documentation and under any other agreements relating to any other
Indebtedness of the Company or its Restricted Subsidiaries terminate upon
consummation of the transaction. At the request of the Company, the Trustee
shall execute and deliver an appropriate instrument evidencing such release.
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(c) A Guarantee as to any Guarantor of the Company shall terminate and
be of no further force or effect and such Guarantor shall be deemed to be
released from all obligations under this Article Eleven if the Company
designates such Guarantor as an Unrestricted Subsidiary and such designation
complies with all applicable provisions of this Indenture.
SECTION 11.03. SUCCESSORS AND ASSIGNS.
This Article Eleven shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
SECTION 11.04. NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article Eleven
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article Eleven at law, in
equity, by statute or otherwise.
SECTION 11.05. MODIFICATION.
No modification, amendment or waiver of any provision of this Article
Eleven, nor the consent to any departure by any Guarantor therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 11.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE
GUARANTORS.
Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.19 hereof shall promptly execute and deliver to the Trustee a
supplemental indenture substantially in the form of Exhibit B hereto pursuant to
which such Subsidiary shall become a Guarantor under this Article Eleven and
shall guarantee the Guaranteed Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
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ARTICLE TWELVE
SUBORDINATION OF THE GUARANTEES
SECTION 12.01. GUARANTEES SUBORDINATED TO GUARANTOR SENIOR DEBT.
Each Guarantor agrees, and the Trustee and each Holder by accepting a
Note, agrees, that the obligations of a Guarantor hereunder are subordinated and
junior in right of payment, to the extent and in the manner provided in this
Article Twelve, to the prior payment in full of all Obligations on the Guarantor
Senior Debt of such Guarantor and that the subordination is for the benefit of,
and enforceable directly by, the holders of such Guarantor Senior Debt of such
Guarantor (including any Obligations under or with respect to the Bank Credit
Agreement) , and that each holder of Guarantor Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Guarantor Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
Notwithstanding the foregoing, payments and distributions made with
U.S. Legal Tender or the proceeds of U.S. Government Obligations held in any
defeasance trust (as described in Section 8.03) shall not be subordinated in
right of payment to any Guarantor Senior Debt, so long as all the conditions to
deposit into such trust are satisfied at the time of such deposit and such
payments and distributions are otherwise permitted by the terms of all Guarantor
Senior Debt.
SECTION 12.02. GUARANTEES IN CERTAIN CIRCUMSTANCES.
(a) Unless Section 12.03 shall be applicable, if any default occurs
and is continuing in the payment when due, whether at maturity, upon redemption,
by declaration or otherwise, of any principal of, premium (if any) on, interest
on, unpaid drawings for letters of credit issued in respect of, or regularly
accruing fees with respect to, any Guarantor Senior Debt, no payment or
distribution of any kind or character shall be made by, or on behalf of, such
Guarantor or any other Person on its or their behalf with respect to any
Guaranteed Obligations, or to acquire any of the Guarantees for cash or property
or otherwise. At any time while any Blockage Period is in existence, neither any
Guarantor nor any other Person on any Guarantors' behalf shall (x) make any
payment of any kind or character with respect to any Obligations on its
Guarantee or (y) acquire any of the Notes for cash or property or otherwise.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Guarantor Senior Debt (pro
rata to such holders on the basis of the respective amount of Guarantor Senior
Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Guarantor Senior Debt,
if any, received from the holders of Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Guarantor and only amounts included in the
information provided to the Trustee shall be paid to the holders of Guarantor
Senior Debt.
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Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Notes to pursue any rights or remedies hereunder
(subject, however, to the rights, if any, under this Article Twelve, of the
holders of Guarantor Senior Debt, in respect of cash or other property of such
Guarantor received upon the exercise of such remedy); PROVIDED that all
Guarantor Senior Debt thereafter due or declared to be due shall first be paid
in full in cash or Cash Equivalents before the Holders are entitled to receive
any payment of any kind or character with respect to Guaranteed Obligations or
the Notes.
SECTION 12.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of a Guarantor of any
kind or character, whether in cash, property, or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of a Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceedings relating to a Guarantor or its property, whether voluntary or
involuntary, all Guaranteed Obligations due or to become due upon all Guarantor
Senior Debt shall first be paid in full in cash or Cash Equivalents (including
interest after the commencement of any bankruptcy or like proceeding at the rate
specified in the applicable Guarantor Senior Debt, whether or not such interest
is an allowed claim in any such proceeding), before any payment or distribution
of any kind or character is made on account of any Guaranteed Obligations on the
Notes, or for the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of a
Guarantor of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes and the Guarantees or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Guarantor Senior Debt (PRO RATA to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has
been paid in full in cash or Cash Equivalents after giving effect to any
concurrent payment, distribution or provision therefore to or for the holders of
such Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or
on behalf of such Guarantor, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set aside
or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Guarantor Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding
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paragraph) of such Guarantor's obligation to make any distribution or payment
pursuant to any Guarantor Senior Debt, except to the extent such diminution
occurs by reason of the repayment (which has not been disgorged or returned) of
such Guarantor Senior Debt in cash or Cash Equivalents, shall have no force or
effect for purposes of the subordination provisions contained in this
Article XII, with any turnover of payments as otherwise calculated pursuant to
this Article XII to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of any Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the Trustee, any Holder when
such payment or distribution is prohibited by Section 12.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Debt (PRO RATA to such holders
on the basis of the respective amount of Senior Debt held by such holders) or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Guarantor Senior Debt may have been
issued, as their respective interests may appear, for application to the payment
of Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt
has been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefore to or for the holders of
such Guarantor Senior Debt.
(d) The consolidation of a Guarantor with, or the merger of a
Guarantor with or into, another corporation or the liquidation or dissolution of
a Guarantor following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Guarantor
Senior Debt shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, assume the
Guarantor's obligations hereunder in accordance with Article Five hereof.
SECTION 12.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Guarantees, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence
of actual knowledge by the Trustee that a given payment would be prohibited by
Section 12.02 or 12.03, the application by the Trustee of any moneys deposited
with it for the purpose of making such payments pursuant to the Guarantees to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Trust Officer
shall have actually received the written notice provided for in the second
sentence of Section 12.02(a) or in Section 12.07 (PROVIDED that, notwithstanding
the foregoing, the Holders receiving any payments made in contravention of
Sections 12.02 and/or 12.03 (and the respective such payments) shall otherwise
be subject to the provisions of the first sentence of Section 12.02(a) and
Section 12.03). Each Guarantor shall give prompt written notice to the Trustee
of any dissolution, winding-up, liquidation or reorganization of such Guarantor,
although any delay or failure to give any such notice shall have not effect on
the subordination provisions contained herein.
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SECTION 12.05. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of a Guarantor, the Holders of the Notes shall be
subrogated to the rights of the holders of Guarantor Senior Debt to receive
payments or distributions of cash, property or securities of such Guarantor
applicable to such Guarantor Senior Debt until the Guaranteed Obligations shall
be paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Guarantor Senior Debt by or on behalf of
such Guarantor or by or on behalf of the Holders by virtue of this Article
Twelve which otherwise would have been made to the Holders shall, as between the
Guarantor and the Holders of the Notes, be deemed to be a payment by the
Guarantor to or on account of the Guarantor Senior Debt, it being understood
that the provisions of this Article Twelve are and are intended solely for the
purpose of defining the relative rights of the Holders of the Guarantees, on the
one hand, and the holders of the Guarantor Senior Debt, on the other hand.
SECTION 12.06. OBLIGATIONS OF EACH GUARANTOR UNCONDITIONAL.
Nothing contained in this Article Twelve or elsewhere in this
Indenture, the Guarantees or in the Notes is intended to or shall impair, as
among each Guarantor, its creditors other than the holders of Guarantor Senior
Debt, and the Holders, the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders the Guaranteed Obligations as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of each
Guarantor other than the holders of the Guarantor Senior Debt, nor shall
anything herein or therein prevent the Holder of any Guarantee or the Trustee on
its behalf from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, in respect of
cash, property or securities of the Guarantor received upon the exercise of any
such remedy.
SECTION 12.07. NOTICE TO TRUSTEE.
Each Guarantor shall give prompt written notice to the Trustee of any
fact known to each such Guarantor which would prohibit the making of any payment
to or by the Trustee in respect of each such Guarantee pursuant to the
provisions of this Article Twelve, although any delay or failure to give any
such notice shall have no effect on the subordination provisions contained
herein. Regardless of anything to the contrary contained in this Article Twelve
or elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any default or event of default with respect to any
Guarantor Senior Debt or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing from such Guarantor, or from a holder of Guarantor
Senior Debt or a Representative therefore, and, prior to the receipt of any such
written notice, the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts exist (PROVIDED that,
notwithstanding the foregoing, the Holders of the Notes receiving any payments
made in contravention of Section 12.02 and/or 12.03 (and the respective such
payments shall otherwise be subject to the provisions of the first sentence of
Section 12.02(a) and Section 12.03). The Trustee shall be entitled to rely on
the delivery to it of any notice
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pursuant to this Section 12.07 to establish that such notice has been given by a
holder of Guarantor Senior Debt (or a Representative therefore).
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Twelve, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of a Guarantor referred to
in this Article Twelve, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceedings is pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Guarantees, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Guarantor Senior Debt and other Indebtedness of
the Guarantor, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Twelve.
SECTION 12.09. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Twelve with respect to any
Guarantor Senior Debt which may at any time be held by it in its individual or
any other capacity to the same extent as any other holder of Guarantor Senior
Debt and nothing in this Indenture shall deprive the Trustee or any such agent
of any of its rights as such holder.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Twelve, and no implied covenants
or obligations with respect to the holders of Guarantor Senior Debt shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the distribution may be made and the notice may
be given to their Representative, if any.
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SECTION 12.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Guarantor Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any Guarantor
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by such Guarantor with the terms of this Indenture or the
Guarantee regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or Holders of the Notes, without
incurring responsibility to the Trustee or the Holders of the Guarantees and
without impairing or releasing the subordination provided in this Article Twelve
or the obligations hereunder of the Holders of the Guarantors to the holders of
the Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Guarantor and any other Person.
SECTION 12.11. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION
OF THE GUARANTEES.
Each Holder authorizes and expressly directs the Trustee on its behalf
to take such action as may be necessary or appropriate to effectuate, as between
the holders of Guarantor Senior Debt and the Holders of the Guarantees, the
subordination provided in this Article Twelve, and appoints the Trustee its
attorney-in-fact for such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of a Guarantor (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim
for the unpaid balance of its Guaranteed Obligations and accrued interest in the
form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Debt or their Representative to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
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SECTION 12.12. THIS ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT.
The failure of a Guarantor to make payment on any of its obligations
by reason of any provision of this Article Twelve will not be construed as
preventing the occurrence of a default by such Guarantor under such obligations.
Nothing in this Article Twelve shall have any effect on the right of the Holders
or the Trustee to make a demand for payment on a Guarantor pursuant to Article
Eleven.
SECTION 12.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Twelve will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 13.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if to the Company and the Guarantors:
Dade Behring Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-0778
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
if to the Trustee:
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Each of the Company and the Trustee by written notice to each other
such Person (and to each Representative of Designated Senior Debt known to it to
be then outstanding) may
87
designate additional or different addresses for notices to such Person or
persons. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if faxed; and five (5) calendar days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
88
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 13.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Noteholders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in
New York,
New
York, Chicago, Illinois or at such place of payment are not required to be open.
If a payment date is a Legal Holiday at such place, payment may be made at such
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 13.08. GOVERNING LAW.
This indenture and the notes shall be governed by and Construed in
accordance with the laws of the state of
New York, As applied to contracts made
and performed within the state of
New York, without regard to principles of
conflict of laws Each of the parties hereto agrees to submit to the jurisdiction
of the courts of the state of
New York in any action or proceeding arising out
of or relating to this indenture.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such,
of the Company or of the Trustee shall not have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Noteholder by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 13.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
89
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
90
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
DADE BEHRING INC.,
By:
-----------------------------------
Name:
Title:
DADE BEHRING HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
DADE MICROSCAN INC.
By:
-----------------------------------
Name:
Title:
DADE FINANCE, INC.
By:
-----------------------------------
Name:
Title:
SYVA DIAGNOSTICS HOLDING CO.
By:
-----------------------------------
Name:
Title:
SYVA CHILDCARE INC.
91
By:
-----------------------------------
Name:
Title:
SYVA COMPANY
By:
-----------------------------------
Name:
Title:
CHIMERA RESEARCH & CHEMICAL
By:
-----------------------------------
Name:
Title:
BNY MIDWEST TRUST COMPANY, as Trustee,
By:
-----------------------------------
Name:
Title:
92
EXHIBIT A
[FORM OF GLOBAL NOTE]
CUSIP No.:
DADE BEHRING INC.
*% SENIOR SUBORDINATED NOTE DUE 2010
No. $
DADE BEHRING INC., a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of Dollars, on *, 2010.
Interest Payment Dates: * and *.
Record Dates: * and *.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
DADE BEHRING INC.
By:
-----------------------------------
Name:
Title
By:
-----------------------------------
Name:
Title
Certificate of Authentication
This is one of the *% Senior Subordinated Notes due 2010 referred to
in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY, as Trustee
Dated: By:
-----------------------------------
Authorized Signatory
A-1
(REVERSE OF SECURITY)
*% SENIOR SUBORDINATED NOTE DUE 2010
1. INTEREST.
DADE BEHRING INC., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above (the "COUPON"). Interest on the Notes will accrue
from the most recent date on which interest has been paid or, if no interest has
been paid, from *, 2002. The Company will pay interest semi-annually in arrears
on each Interest Payment Date, commencing *, 2002. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes plus 2% per annum and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal, premium,
if any, and interest at the corporate offices of the Paying Agent in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. LEGAL TENDER"). However, the Company may pay
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. PAYING AGENT AND REGISTRAR. Initially, BNY Midwest Trust Company,
an Illinois trust company (the "TRUSTEE"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. INDENTURE. The Company issued the Notes under an Indenture, dated
as of *, 2002 (the "INDENTURE"), between the Company and the Trustee. This Note
is one of a duly authorized issue of Notes of the Company designated as its *%
Senior Subordinated Notes due 2010. The Notes are limited in aggregate principal
amount to $*. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. 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 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and said Act for a statement of them. The Notes are
general unsecured obligations of the Company.
5. SUBORDINATION. All Obligations on, or relating to, the Notes and
the Guarantees are subordinated in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full in cash or Cash
Equivalents of all Obligations under all Senior Debt or Guarantor Senior Debt of
the Company and each Guarantor, whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder
A-2
by his acceptance hereof agrees to be bound by such provisions and authorizes
and expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, at the
Company's option, in whole at any time or in part from time to time, upon not
less than 30 nor more than 60 days' notice, as set forth below:
Redemption after ____________, 2005.
On or after __________, 2005 the Notes will be subject to redemption at the
redemption prices (expressed as percentages of the principal amount thereof) set
forth below plus accrued and unpaid interest thereon to but not including the
applicable Redemption Date, if redeemed during the twelve-month period beginning
on [DATE] of the years indicated below:
Year % Percentage
---- --- ----------
2005...................................... __________% [100% plus 1/2 of the Note
Interest Rate]
2006...................................... __________% [100% plus 3/8 of the Note
Interest Rate]
2007...................................... __________% [100% plus 1/4 of the Note
Interest Rate]
2008...................................... __________% [100% plus 1/8 of the Note
Interest Rate]
2009 and thereafter....................... 100.000%
PROVIDED, HOWEVER, that if the notice of redemption is mailed prior to an
Interest Payment Date but the Redemption Date falls after such Interest Payment
Date, then the applicable interest shall be paid on such Interest Payment Date
and the accrued and unpaid interest to the Redemption Date shall be that
interest accruing from such Interest Payment Date to the Redemption Date.
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time and from
time to time, prior to __________, 2005, the Company may redeem up to a maximum
of 35% of the original aggregate principal amount of the Notes with the net cash
proceeds of one or more Equity Offerings, at a Redemption Price equal to 100% of
the principal amount thereof, plus the Coupon, plus accrued and unpaid interest
thereon, if any, to the Redemption Date; PROVIDED, HOWEVER, that immediately
after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Notes remains outstanding. Any such redemption
shall be made within 75 days of such Equity Offering upon not less than 30 nor
more than 60 days' prior notice; PROVIDED, HOWEVER, that if the notice of
redemption is mailed prior to an Interest Payment Date but the Redemption Date
falls after the same Interest Payment Date, then the applicable interest shall
be paid on the Interest Payment Date and the accrued and unpaid
A-3
interest to the Redemption Date shall be that interest accruing from the
Interest Payment Date to the Redemption Date.
(c) MAKEWHOLE REDEMPTION. The Company may choose to redeem the Notes
at any time prior to _________, 2005 upon the terms and subject to the
conditions set forth in this paragraph. The Company may redeem all or any
portion of the Notes, at once or from time to time, after giving the required
notice under the Indenture. To redeem the Notes prior to ________, 2005, the
Company must pay a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Notes to be redeemed,
and
(b) the sum of the present values of (i) the Redemption Price of
the Notes at _______, 2005 (such Redemption Price being ___%) and (ii) any
interest due on the Notes through _______, 2005, in each case discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Makewhole Rate plus 0.50%, plus, in either case,
accrued and unpaid interest, if any, to the Redemption Date; PROVIDED, HOWEVER,
that if the notice of redemption is mailed prior to an Interest Payment Date but
the Redemption Date falls after such Interest Payment Date, then the applicable
interest shall be paid on such Interest Payment Date and the accrued and unpaid
interest to the Redemption Date shall be that interest accruing from such
Interest Payment Date to the Redemption Date.
Any notice to Holders of Notes of such a redemption shall include the
appropriate calculation of the Redemption Price, but is not required to include
the Redemption Price itself. The actual Redemption Price, calculated as
described above, shall be set forth in an Officers' Certificate delivered to the
Trustee no later than two business days prior to the Redemption Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
8. OFFERS TO PURCHASE. Sections 4.15 and 4.16 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control (as defined in the Indenture), and subject
to further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
form, without coupons, in denominations of whole dollar integrals. A Holder
shall register the transfer of or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder,
A-4
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Notes or portions thereof selected
for redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default or noncompliance
with any provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material respect the rights
of any Holder of a Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Subsidiaries, merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with
A-5
the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Notes unless it has received indemnity
reasonably satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of any
continuing Default or Event of Default (except a Default in payment of principal
or interest) if it determines that withholding notice is in their interest.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation 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 of a Note 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.
19. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
20. GOVERNING LAW. The Laws of the State of New York shall govern
this Note and the Indenture, without regard to principles of conflict of laws.
21. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN CON (=
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).
22. 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 as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. INDENTURE. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to:
Dade Behring Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Chief Financial Officer.
A-6
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and social security or tax ID
number of assignee)
and irrevocably appoint ____________________________________, agent to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Dated: Signed:
--------------------- ---------------------------------------
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:
-----------------------------------------------------------
A-7
[OPTION OF HOLDER TO ELECT PURCHASE)
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$___________________________
Dated:
------------------------ --------------------------------------
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
-------------------------------
A-8
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
________________, among [GUARANTOR] (the "New Guarantor"), a subsidiary of
DADE
BEHRING INC. (or its successor), a Delaware corporation (the "Company"),
[EXISTING GUARANTORS] and BNY MIDWEST TRUST COMPANY, as trustee under the
Indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and [EXISTING GUARANTORS] (the "Existing
Guarantors") have heretofore executed and delivered to the Trustee and Indenture
(the "Indenture") dated as of *, 2002, providing for the issuance of an
aggregate principal amount of up to * of *% Senior Subordinated Notes due 2010
(the "Notes");
WHEREAS Section 4.19 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Securities pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly
and severally with all the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Indenture and the Securities.
2. RATIFICATION OF INDENTURE; SUPPLEMENT INDENTURES PART OF INDENTURE.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
B-1
STATE OF NEW YORK, WITHOUT CONFLICTS OF LAWS AND PRINCIPLES THEREOF.
4. TRUSTEE MAKES NO REPRESENTATIONS. The Trustee makes no
representation as to the validly or sufficiency of this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
By:
-----------------------------------
Name:
Title:
DADE BEHRING INC.,
By:
-----------------------------------
Name:
Title:
DADE BEHRING HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
DADE MICROSCAN INC.
By:
-----------------------------------
Name:
Title:
B-2
DADE FINANCE, INC.
By:
-----------------------------------
Name:
Title:
SYVA DIAGNOSTICS HOLDING CO.
By:
-----------------------------------
Name:
Title:
SYVA CHILDCARE INC.
By:
-----------------------------------
Name:
Title:
SYVA COMPANY
By:
-----------------------------------
Name:
Title:
CHIMERA RESEARCH & CHEMICAL
By:
-----------------------------------
Name:
Title:
BNY MIDWEST TRUST COMPANY, as Trustee,
B-3
By:
-----------------------------------
Name:
Title:
B-4