EXHIBIT 4.4
DENTSPLY International Inc.
JPY 6,237,500,000
1.39% Guaranteed Senior Notes due December 28, 2005
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Note Purchase Agreement
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Dated as of December 28, 2001
==============================================================
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Table of Contents
Section Heading Page
Section 1. Authorization of Notes; Guarantees................1
Section 2. Sale and Purchase of Notes........................1
Section 3. Closing...........................................2
Section 4. Conditions to Closing.............................2
Section 4.1. Representations and Warranties..................2
Section 4.2. Performance; No Default.........................2
Section 4.3. Compliance Certificates.........................2
Section 4.4. Opinions of Counsel.............................3
Section 4.5. Purchase Permitted by Applicable
Law, Etc........................................3
Section 4.6. Sale of Other Notes.............................3
Section 4.7. Payment of Special Counsel Fees.................3
Section 4.8. Private Placement Number........................3
Section 4.9. Changes in Corporate Structure..................3
Section 4.10. Subsidiary Guaranties...........................4
Section 4.11. Proceedings and Documents.......................4
Section 5. Representations and Warranties of
the Company.......................................4
Section 5.1. Organization; Power and Authority...............4
Section 5.2. Authorization, Etc..............................4
Section 5.3. Disclosure......................................4
Section 5.4. Organization and Ownership of
Shares of Subsidiaries..........................5
Section 5.5. Financial Statements............................5
Section 5.6. Compliance with Laws, Other
Instruments, Etc................................6
Section 5.7. Governmental Authorizations, Etc................6
Section 5.8. Litigation; Observance of
Statutes and Orders.............................6
Section 5.9. Taxes...........................................6
Section 5.10. Title to Property; Leases.......................7
Section 5.11. Licenses, Permits, Etc..........................7
Section 5.12. Compliance with ERISA...........................7
Section 5.13. Private Offering by the Company.................8
Section 5.14. Use of Proceeds; Margin
Regulations.....................................8
Section 5.15. Existing Debt; Future Liens.....................9
Section 5.16. Foreign Assets Control
Regulations, Etc................................9
Section 5.17. Status under Certain Statutes...................9
Section 5.18. Pari Passu......................................9
Section 5.19. Anti-Terrorism Order............................9
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Section 5.20. Environmental Matters..........................10
Section 6. Representations of the Purchaser.................10
Section 6.1. Purchase for Investment........................10
Section 6.2. Source of Funds................................10
Section 7. Information as to Company........................12
Section 7.1. Financial and Business Information.............12
Section 7.2. Officer's Certificate..........................15
Section 7.3. Inspection.....................................15
Section 8. Prepayment of the Notes..........................16
Section 8.1. Required Prepayments...........................16
Section 8.2. Optional Prepayments with
Make-Whole Amount..............................16
Section 8.3. Allocation of Partial Prepayments..............16
Section 8.4. Maturity; Surrender, Etc.......................16
Section 8.5. Purchase of Notes..............................17
Section 8.6. Make-Whole Amount..............................17
Section 9. Affirmative Covenants............................18
Section 9.1. Compliance with Law............................18
Section 9.2. Insurance......................................19
Section 9.3. Maintenance of Properties......................19
Section 9.4. Payment of Taxes...............................19
Section 9.5. Corporate Existence, Etc.......................19
Section 9.6. Subsequent Guarantors..........................20
Section 9.7. Covenant to Secure Notes Equally...............20
Section 9.8. Pari Passu Ranking.............................20
Section 9.9. Rule 144A Information..........................20
Section 10. Negative Covenants...............................20
Section 10.1. Transactions with Affiliates...................20
Section 10.2. Merger, Consolidation, Etc.....................20
Section 10.3. Consolidated Net Worth.........................21
Section 10.4. Interest Coverage Ratio........................21
Section 10.5. Debt and Priority Debt
Limitations....................................21
Section 10.6. Permitted Liens................................21
Section 10.7. Sale of Assets.................................23
Section 10.8. Sale of Stock and Debt of
Subsidiaries...................................23
Section 10.9. Sale or Discount of Receivables................23
Section 10.10.Subsidiary Dividend Restrictions...............24
Section 10.11. Sale and Leasebacks...........................24
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Section 10.12.Line of Business...............................24
Section 11. Events of Default................................24
Section 12. Remedies on Default, Etc.........................27
Section 12.1. Acceleration...................................27
Section 12.2. Other Remedies.................................27
Section 12.3. Rescission.....................................28
Section 12.4. No Waivers or Election of
Remedies, Expenses, Etc........................28
Section 13. Registration; Exchange; Substitution
of Notes.........................................28
Section 13.1. Registration of Notes..........................28
Section 13.2. Transfer and Exchange of Notes.................28
Section 13.3. Replacement of Notes...........................29
Section 14. Payments on Notes................................29
Section 14.1. Place of Payment...............................29
Section 14.2. Home Office Payment............................29
Section 14.3. Judgment Currency..............................30
Section 15. Expenses, Etc....................................30
Section 15.1. Transaction Expenses...........................30
Section 15.2. Survival.......................................31
Section 16. Survival of Representations and
Warranties; Entire Agreement.....................31
Section 17. Amendment and Waiver.............................31
Section 17.1. Requirements...................................31
Section 17.2. Solicitation of Holders of Notes...............31
Section 17.3. Binding Effect, Etc............................32
Section 17.4. Notes Held by Company, Etc.....................32
Section 18. Notices..........................................32
Section 19. Reproduction of Documents........................33
Section 20. Confidential Information.........................33
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Section 21. Substitution of Purchaser........................34
Section 22. Miscellaneous....................................34
Section 22.1. Successors and Assigns.........................34
Section 22.2. Payments Due on Non-Business Days.............34
Section 22.3. Severability...................................34
Section 22.4. Construction...................................35
Section 22.5. Counterparts...................................35
Section 22.6. Governing Law..................................35
Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 4.9-- Changes in Corporate Structure
Schedule 4.10 -- List of Subsidiary Guarantors at Closing
Schedule 5.3-- Disclosure Materials
Schedule 5.4-- Subsidiaries of the Company and Ownership
of Subsidiary Stock
Schedule 5.5-- Financial Statements
Schedule 5.8-- Certain Litigation
Schedule 5.11 -- Patents, Etc.
Schedule 5.15 -- Existing Debt
Exhibit 1(a)-- Form of 1.39% Guaranteed Senior
Notes due 2005
Exhibit 1(b)-- Form of Guarantee Agreement
Exhibit 4.4(a) -- Form of Opinion of Counsel for the
Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel
for the Purchasers
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DENTSPLY International Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1.39% Guaranteed Senior Notes due December 28, 2005
December 28, 2001
To Each of the Purchasers Listed In
The Attached Schedule A:
Ladies and Gentlemen:
DENTSPLY International Inc., a Delaware corporation
(the "Company"), agrees with you as follows:
Section 1. Authorization of Notes; Guarantees.
(a) The Company will authorize the issue and sale of
JPY 6,237,500,000 aggregate principal amount of its 1.39%
Guaranteed Senior Notes due December 28, 2005 (the "Notes,"
such term to include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement or the
Other Agreements (as hereinafter defined)). The Notes shall
be substantially in the form set out in Exhibit 1(a), with
such changes therefrom, if any, as may be approved by you
and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a
"Schedule" or an "Exhibit" are, unless otherwise specified,
to a Schedule or an Exhibit attached to this Agreement.
(b) The payment of the Notes and the performance by the
Company of its obligations under this Agreement and the
Other Agreements (as defined below) will be guaranteed by
certain Subsidiaries of the Company (each a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"),
pursuant to separate Guarantee Agreements of each Subsidiary
Guarantor (each a "Guarantee Agreement" and, collectively,
the "Guarantee Agreements"), each substantially in the form
of Exhibit 1(b) hereto.
Section 2. Sale and Purchase of Notes.
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Subject to the terms and conditions of this Agreement,
the Company will issue and sell to you and you will purchase
from the Company, at the Closing provided for in Section 3,
Notes in the principal amount specified opposite your name
in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this
Agreement, the Company is entering into separate Note
Purchase Agreements (the "Other Agreements") identical with
this Agreement with each of the other purchasers named in
Schedule A (the "Other Purchasers"), providing for the sale
at such Closing to each of the Other Purchasers of Notes in
the principal amount specified opposite its name in Schedule
A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and
not joint obligations and you shall have no obligation under
any Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser
thereunder.
Section 3. Closing.
The sale and purchase of the Notes to be purchased by
you and the Other Purchasers shall occur at the offices of
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at a closing (the "Closing") on December
28, 2001. At the Closing, the Company will deliver to you
the Notes to be purchased by you in the form of a single
Note (or such greater number of Notes in denominations of at
least JPY 125,000,000 as you may request) dated the date of
the Closing and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its
order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately
available funds to ABN AMRO Bank, Tokyo, Swift Code
▇▇▇▇▇▇▇▇, Account No. 17.23.499, for further credit to ABN
AMRO Chicago Treasury, Swift Code ▇▇▇▇▇▇▇▇▇▇▇, Ref:
Dentsply, JPY, Ref.: DENTSPLY International. If at the
Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been
fulfilled to your satisfaction, you shall, at your election,
be relieved of all further obligations under this Agreement,
without thereby waiving any rights you may have by reason of
such failure or such non-fulfillment.
Section 4. Conditions to Closing.
Your obligation to purchase and pay for the Notes to be
sold to you at the Closing is subject to the fulfillment to
your satisfaction, prior to or at the Closing, of the
following conditions:
Section 4.1. Representations and Warranties. The
representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
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Section 4.2. Performance; No Default. The Company shall
have performed and complied with all agreements and
conditions contained in this Agreement required to be
performed or complied with by it prior to or at the Closing
and after giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated
by Section 5.14) no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any
Subsidiary shall have entered into any transaction since the
date of the Memorandum that would have been prohibited by
Sections 10.1 or 10.2 had such Sections applied since such
date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have
delivered to you an Officer's Certificate, dated the date of
the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate certifying as to the
resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the
Notes and the Agreements. The Secretary or an Assistant
Secretary of each Subsidiary Guarantor shall have delivered
to you a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to
the authorization, execution and delivery of the Guarantee
Agreement to which it is a party.
Section 4.4. Opinions of Counsel. You shall have received
opinions in form and substance satisfactory to you, dated
the date of the Closing (a) from ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
General Counsel of the Company and each Subsidiary
Guarantor, covering the matters set forth in Exhibit 4.4(a)
and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably
request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit
4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On
the date of the Closing, your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction
to which you are subject, without recourse to provisions
(such as Section 1405(a)(8) of the New York Insurance Law)
permitting limited investments by insurance companies
without restriction as to the character of the particular
investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and
(c) not subject you to any tax, penalty or liability under or
pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may
reasonably specify to enable you to determine whether such
purchase is so permitted.
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Section 4.6. Sale of Other Notes. Contemporaneously with
the Closing, the Company shall sell to the Other Purchasers
and the Other Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the reasonable
fees, charges and disbursements of your special counsel
referred to in Section 4.4(b) to the extent reflected in a
statement of such counsel rendered to the Company at least
one Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement
Number issued by Standard & Poor's CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have
been obtained for the Notes.
Section 4.9. Changes in Corporate Structure. Except as
specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation or been a party to
any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.
Section 4.10. Subsidiary Guaranties. You shall have received
certain Guarantee Agreements, duly executed and delivered by
each Subsidiary listed in Schedule 4.10 and each such
Guarantee Agreement shall be in full force and effect.
Section 4.11. Proceedings and Documents. All corporate and
other proceedings in connection with the transactions
contemplated by this Agreement and all documents and
instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and
your special counsel shall have received all such
counterpart originals or certified or other copies of such
documents as you or they may reasonably request.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to you that:
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Section 5.1. Organization; Power and Authority. The
Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in
which such qualification is required by law, other than
those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and
authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute
and deliver this Agreement and the Other Agreements and the
Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement and the
Other Agreements and the Notes have been duly authorized by
all necessary corporate action on the part of the Company,
and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid
and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
Section 5.3. Disclosure. The Company, through its agent,
ABN AMRO Incorporated, has delivered to you and each Other
Purchaser a copy of a Private Placement Memorandum, dated
November 2001 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature and,
if applicable, properties of the business of the Company and
its Subsidiaries. Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or
other writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole, do not
contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein not misleading in light of the circumstances under
which they were made. Except as disclosed in the Memorandum
or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified
therein, or in the financial statements listed in Schedule
5.5, since December 31, 2000, there has been no change in
the financial condition, operations, business or properties
of the Company or any of its Subsidiaries except changes
that individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect. There is no
fact known to the Company that would reasonably be expected
to have a Material Adverse Effect that has not been set
forth herein or in the Memorandum or in the other documents,
certificates and other writings delivered to you by or on
behalf of the Company for use in connection with the
transactions contemplated hereby.
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Section 5.4. Organization and Ownership of Shares of
Subsidiaries. (a) Schedule 5.4 contains (except as noted
therein) complete and correct lists of (i) the Company's
Subsidiaries (other than those Subsidiaries which have no or
an immaterial amount of assets), showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of
its organization, and the percentage of shares of each class
of its capital stock or similar equity interests outstanding
owned by the Company and each other Subsidiary, (ii) the
Company's Affiliates which it directly or indirectly
controls, other than Subsidiaries, and (iii) the Company
directors and senior officers.
(b) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in
Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a
foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing would
not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to
own or hold under lease the properties it purports to own or
hold under lease and to transact the business it transacts
and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject
to any legal restriction or any agreement (other than this
Agreement, the agreements listed on Schedule 5.15 and
customary limitations imposed by statute) restricting the
ability of such Subsidiary to pay dividends out of profits
or make any other similar distributions of profits to the
Company or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5. Financial Statements. The Company has
delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including
in each case the related schedules and notes) fairly present
in all material respects the consolidated financial position
of the Company and its Subsidiaries as of the respective
dates specified in such financial statements and the
consolidated results of their operations and cash flows for
the respective periods so specified and have been prepared
in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements,
to normal year-end adjustments).
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Section 5.6. Compliance with Laws, Other Instruments, Etc.
The execution, delivery and performance by the Company of
this Agreement and the Notes will not (a) contravene, result
in any breach of, or constitute a default under, or result
in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement,
lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any
Subsidiary or any of their respective properties may be
bound or affected, (b conflict with or result in a breach of
any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or any
Subsidiary or (c) violate any provision of any statute or
other rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent,
approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by
the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company
or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind
or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in
default under any term of any Material agreement or
instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of
any applicable law, ordinance, rule or regulation
(including, without limitation, Environmental Laws) of any
Governmental Authority, which default or violation,
individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have
filed all income tax returns that are required to have been
filed in any jurisdiction, and have paid all taxes shown to
be due and payable on such returns and all other taxes and
assessments payable by or levied upon them or their
properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or
in the aggregate Material or (b) the amount, applicability
or validity of which
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is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Company knows of no
basis for any other tax or assessment that would reasonably
be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its
Subsidiaries in respect of federal, state or other taxes for
all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been
determined by the Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended
December 31, 1993.
Section 5.10. Title to Property; Leases. The Company and
its Subsidiaries have good and sufficient title to their
respective owned properties that individually or in the
aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred
to in Section 5.5 or purported to have been acquired by the
Company or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business),
in each case free and clear of Liens prohibited by this
Agreement, except for those defects in title and Liens that,
individually or in the aggregate, would not have a Material
Adverse Effect. All leases that individually or in the
aggregate are Material are valid and subsisting and are in
full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed
in Schedule 5.11,
(a) the Company and its Subsidiaries own or
possess all licenses, permits, franchises,
authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that are
Material, without known conflict with the rights of
others, except for those conflicts that, individually
or in the aggregate, would not have a Material Adverse
Effect.
(b) to the best of the knowledge of the Company,
no product of the Company infringes in any respect any
license, permit, franchise, authorization, patent,
copyright, service ▇▇▇▇, trademark, trade name or other
right owned by any other Person, except for any
infringement(s) that, individually or in the aggregate
would not have a Material Adverse Effect; and
(c) to the best of the knowledge of the Company,
there is no Material violation by any Person of any
right of the Company or any Subsidiary with respect to
any patent, copyright, service ▇▇▇▇, trademark, trade
name or other right owned or used by the Company or any
of its Subsidiaries that, individually or in the
aggregate, would have a Material Adverse Effect.
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Section 5.12. Compliance with ERISA. (a) The Company and
each ERISA Affiliate have operated and administered each
Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and would
not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in Section 3 of ERISA),
and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA
Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA
or to such penalty or excise tax provisions or to Section
401(a)(29) or 412 of the Code, other than such liabilities
or Liens as would not be individually or in the aggregate
Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such
Plan's most recent actuarial valuation report, did not
exceed the aggregate current value of the assets of such
Plan allocable to such benefit liabilities by more than
$10,000,000 in the aggregate for all Plans. The term
"benefit liabilities" has the meaning specified in section
4001 of ERISA and the terms "current value" and "present
value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to
contingent withdrawal liabilities) under section 4201 or
4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation
(determined as of the last day of the Company's most
recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard
to liabilities attributable to continuation coverage
mandated by Section 4980B of the Code) of the Company and
its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and
the issuance and sale of the Notes hereunder will not
involve any transaction that is subject to the prohibitions
of section 406 of ERISA or in connection with which a tax
could be imposed pursuant to Section 4975(c)(1)(A)-(D) of
the Code. The representation by the Company in the first
sentence of this Section 5.12(e) is made in reliance upon
and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds to be used to pay
the purchase price of the Notes to be purchased by you.
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Section 5.13. Private Offering by the Company. Neither the
Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited
any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person
other than you, the Other Purchasers and not more than 25
other Institutional Investors, each of which has been
offered the Notes at a private sale for investment. Neither
the Company nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or
sale of the Notes to the registration requirements of
Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The
Company will apply the proceeds of the sale of the Notes to
repay indebtedness to banks and for other general corporate
purposes. No part of the proceeds from the sale of the
Notes hereunder will be used, directly or indirectly, for
the purpose of buying or carrying any margin stock within
the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of
buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any
broker or dealer in a violation of Regulation T of said
Board (12 CFR 220). Margin stock does not constitute more
than 5% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have
any present intention that margin stock will constitute more
than 5% of the value of such assets. As used in this
Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said
Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as
described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Debt of the Company and its
Subsidiaries as of December 14, 2001, since which date there
has been no Material change in the amounts, interest rates,
sinking funds, installment payments or maturities of the
Debt of the Company or its Subsidiaries. Neither the
Company nor any Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any
principal or interest on any Debt of the Company or such
Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Subsidiary the outstanding
principal amount of which exceeds $10,000,000 that would
permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the
Company nor any Subsidiary has agreed or consented to cause
or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien not otherwise
permitted by Section 10.6.
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Section 5.16. Foreign Assets Control Regulations, Etc.
Neither the sale of the Notes by the Company hereunder nor
its use of the proceeds thereof will violate the Trading
with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
Section 5.17. Status under Certain Statutes. Neither the
Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the ICC
Termination Act of 1995, as amended, or the Federal Power
Act, as amended.
Section 5.18. Pari Passu. All obligations and liabilities
of the Company under this Agreement and the Other Agreements
rank at least pari passu with all other unsecured present
Debt of the Company, except to the extent of any mandatory
preferences which may arise only as a result of any
applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
All obligations and liabilities of each Subsidiary
Guarantor under the Guarantee Agreement to which it is a
party will, upon issuance of the Notes rank at least pari
passu without preference or priority with all other
outstanding unsecured and unsubordinated present Debt of
such Subsidiary Guarantor, except to the extent of any
mandatory preferences which may arise only as a result of
any applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
Section 5.19. Anti-Terrorism Order. Neither the Company nor
any of its Subsidiaries is, nor will become, a Person or
entity described in Section 1 of the Anti-Terrorism Order or
described in the Department of the Treasury Rule, and
neither the Company nor any of its Subsidiaries engages in
and will not engage in any dealings or transactions, or be
otherwise associated, with any such Persons or entities.
Section 5.20. Environmental Matters. Neither the Company
nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been
instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties
now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case,
such as would not reasonably be expected to result in a
Material Adverse Effect. Except as otherwise disclosed to
you in writing,
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(a) neither the Company nor any Subsidiary has
knowledge of any facts which would give rise to any
claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from,
occurring on or in any way related to real properties
now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each
case, such as would not reasonably be expected to
result in a Material Adverse Effect;
(b) neither the Company nor any Subsidiary has
stored any Hazardous Materials on real properties now
or formerly owned, leased or operated by any of them
and has not disposed of any Hazardous Materials in each
case in a manner contrary to any Environmental Laws and
in each case in a manner that would reasonably be
expected to have a Material Adverse Effect; and
(c) all buildings on all real property now owned
or leased and operated by the Company or any of its
Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply
would not reasonably be expected to result in a
Material Adverse Effect.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment. You represent that
you are purchasing the Notes for your own account or for one
or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a
view to the distribution thereof, provided that the
disposition of your or their property shall at all times be
within your or their control. Without limiting the
foregoing, you agree that you will not, directly or
indirectly, resell the Notes purchased by you to a Person
which you are aware is a Competitor. You understand that
the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where
neither such registration nor such an exemption is required
by law, and that the Company is not required to register the
Notes.
Section 6.2. Source of Funds. You represent that at least
one of the following statements is an accurate
representation as to each source of funds (a "Source") to be
used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) the Source is an insurance company pooled
separate account that is maintained solely in
connection with your fixed contractual obligations
under which the amounts payable, or credited, to an
employee benefit plan and to any participant or
beneficiary of an employee benefit plan (including any
annuitant) are not affected in any manner by the
investment performance of the separate account; or
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(b) the Source is either (i) an insurance company
pooled separate account, within the meaning of
Prohibited Transaction Exemption ("PTE") ▇▇-▇ (▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇), ▇▇ (▇▇) a bank collective investment
fund, within the meaning of the PTE 91-38 (issued July
12, 1991), and, except as you have disclosed to the
Company in writing pursuant to this paragraph (b), no
employee benefit plan or group of employee benefit
plans maintained by the same employer or employee
organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or
collective investment fund; or
(c) the Source constitutes assets of an
"investment fund" (within the meaning of Part V of the
QPAM Exemption) managed by a "qualified professional
asset manager" or "QPAM" (within the meaning of Part V
of the QPAM Exemption), no employee benefit plan's
assets that are included in such investment fund, when
combined with the assets of all other employee benefit
plans established or maintained by the same employer or
by an affiliate (within the meaning of Section V(c)(1)
of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM on
a discretionary basis, the conditions of Part I(c) and
(g) of the QPAM Exemption are satisfied, neither the
QPAM nor a Person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e)
of the QPAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such QPAM and (ii)
the names of all employee benefit plans whose assets
are included in such investment fund have been
disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is one or more employee benefit
plans, or a separate account or trust fund comprised of
one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to
this paragraph (d); or
(e) the Source is an "insurance company general
account," as such term is defined in PTE 95-60 (issued
July 12, 1995) and as of the date of this Agreement
there is no employee benefit plan with respect to which
the aggregate amount of such general account's reserves
and liabilities for the contracts held by or on behalf
of such employee benefit plan and all other employee
benefit plans maintained by the same employer (and
affiliates thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization (in each
case determined in accordance with the provisions of
PTE 95-60) exceeds 10% of the total reserves and
liabilities of such general account (as determined
under PTE 9560) (exclusive of separate account
liabilities) plus surplus as set forth in the National
Association of Insurance Commissioners Annual Statement
filed with your state of domicile; or
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(f) the Source is the assets of one or more
employee benefit plans which are managed by an
"in-house asset manager," as that term is defined in
PTE 96-23 (issued April 10, 1996), the conditions of
Section I(a), (b), (c), (g) and (h) of such exemption
have been met with respect to the purchase of the Notes
and the names of all employee benefit plans whose
assets are included in the transaction have been
disclosed to the Company in writing pursuant to this
clause (f); or
(g) the Source does not include assets of an
employee benefit plan, other than a plan exempt from
the coverage of ERISA and Section 4975 of the Code.
If you or any subsequent transferee of the Notes
notifies the Company in writing that you or such transferee
are relying on any representation contained in paragraphs
(b), (c), (d) or (f) above, the Company shall deliver on the
date of Closing and on the date of any applicable transfer,
a certificate, which shall either state that (i) it is
neither a "party in interest" (as defined in Title I,
section 3(14) of ERISA) nor a "disqualified person" (as
defined in Section 4975(e)(2) of the Code), with respect to
any plan identified pursuant to paragraphs (b), (d) or (f)
above, or (ii) with respect to any plan identified pursuant
to paragraph (c) above, neither it nor any "affiliate" (as
defined in Section V(c) of the QPAM Exemption) has at such
time, and during the immediately preceding one year,
exercised the authority to appoint or terminate said QPAM as
manager of any plan identified in writing pursuant to
paragraph (c) above or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan.
As used in this Section 6.2, the terms "employee benefit
plan" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA,
except that the term "employee benefit plan" shall also
include any "plan" as defined in Section 4975(e)(1) of the
Code.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The
Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements - within 60 days after
the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such
quarter, and
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(ii) consolidated statements of income,
changes in shareholders' equity and cash flows of
the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters)
for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the
figures for the corresponding periods in the previous
fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior
Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being
reported on and their results of operations and cash
flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time
period specified above of copies of the Company's
Quarterly Report on Form 10-Q prepared in compliance
with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(a);
(b) Annual Statements - within 90 days after the
end of each fiscal year of the Company, duplicate
copies of,
(i) a consolidated balance sheet of the
Company and its Subsidiaries, as at the end of
such year, and
(ii) consolidated statements of income,
changes in shareholders' equity and cash flows of
the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and
accompanied by (A) an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that such financial
statements present fairly, in all material respects,
the financial position of the companies being reported
upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that
the examination of such accountants in connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that
such audit provides a reasonable basis for such opinion
in the circumstances, and (B) a certificate of such
accountants stating that, in making the audit necessary
for their report on such financial statements, they
have obtained no knowledge of any Event of Default or
Default, or if they have obtained knowledge of any
Default or Event of Default, specifying the nature
thereof (such accountants, however, shall not be liable
to anyone by reason of their failure to obtain
knowledge of any Default or Event of Default which
would not be disclosed in the course of an audit
conducted in accordance with generally accepted
auditing standards), provided that the delivery within
the time period specified
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above of the Company's Annual Report on Form 10-K for
such fiscal year (together with the Company's annual
report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in
accordance with the requirements therefor and filed
with the Securities and Exchange Commission, together
with the accountant's certificate described in clause
(B) above, shall be deemed to satisfy the requirements
of this Section (b);
(c) SEC and Other Reports - promptly upon their
becoming available, one copy of (i) each financial
statement, report, notice or proxy statement sent by
the Company or any Subsidiary to public securities
holders generally, and (ii) each regular or periodic
report, each registration statement that shall have
become effective (without exhibits except as expressly
requested by such holder), and each final prospectus
and all material amendments thereto filed by the
Company or any Subsidiary with the Securities and
Exchange Commission and of all press releases and other
statements made available generally by the Company or
any Subsidiary to the public concerning developments
that are Material;
(d) Notice of Default or Event of Default -
promptly, and in any event within five days after a
Responsible Officer becoming aware of the existence of
any Default or Event of Default or that any Person has
given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given
any notice or taken any action with respect to a
claimed default of the type referred to in Section
11(f), a written notice specifying the nature and
period of existence thereof and what action the Company
is taking or proposes to take with respect thereto;
(e) ERISA Matters - promptly, and in any event
within five days after a Responsible Officer becoming
aware of any of the following, a written notice setting
forth the nature thereof and the action, if any, that
the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in section 4043(b) of ERISA and
the regulations thereunder, for which notice
thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the
institution of, proceedings under section 4042 of
ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such
Multiemployer Plan; or
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(iii) any event, transaction or condition that
could result in the incurrence of any liability by
the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the
Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken
together with any other such liabilities or Liens
then existing, would reasonably be expected to
have a Material Adverse Effect;
(f) Notices from Governmental Authorities -
promptly, and in any event within 30 days of receipt
thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental
Authority relating to any written or formal order,
ruling, statute or other law or regulation the result
of which would reasonably be expected to have a
Material Adverse Effect; and
(g) Requested Information - with reasonable
promptness, such other data and information relating to
the business, operations, affairs, financial condition,
assets or properties of the Company or any Subsidiary
or relating to the ability of the Company to perform
its obligations hereunder and under the Notes as from
time to time may be reasonably requested by any such
holder of Notes or relating to the ability of any
Guarantor to perform it obligations under its Guarantee
Agreement.
Section 7.2. Officer's Certificate. Each set of financial
statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied
by a certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance - the information
(including detailed calculations) required in order to
establish whether the Company was in compliance with
the requirements of Section 10.3 through Section 10.5
hereof, inclusive, Section 10.6(j), Section 10.7 and
Section 10.11 during the quarterly or annual period
covered by the statements then being furnished
(including with respect to each such Section, where
applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in
existence); and
(b) Event of Default - a statement that such
officer has reviewed the relevant terms hereof and has
made, or caused to be made, under his or her
supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by
the statements then being
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furnished to the date of the certificate and that such
review shall not have disclosed the existence during
such period of any condition or event that constitutes
a Default or an Event of Default or, if any such
condition or event existed or exists (including,
without limitation, any such event or condition
resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof
and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the
representatives of each holder of Notes that is an
Institutional Investor:
(a) No Default - if no Default or Event of
Default then exists, at the expense of such holder and
upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to
discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company's
officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) its
independent public accountants, and (with the consent
of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of
the Company and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in
writing; and
(b) Default - if a Default or Event of Default
then exists, at the expense of the Company, to visit
and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their
respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts
with their respective officers and independent public
accountants (and by this provision the Company
authorizes said accountants to discuss the affairs,
finances and accounts of the Company and its
Subsidiaries), all at such times and as often as may be
requested.
Section 8. Prepayment of the Notes,
Section 8.1. Required Prepayments. On each of December 28,
2003 and December 28, 2004, the Company will prepay JPY
2,079,166,666 principal amount (or such lesser principal
amount as shall then be outstanding) of the Notes at par and
without payment of the Make-Whole Amount or any premium,
provided that upon any partial prepayment of the Notes
pursuant to Section 8.2 or purchase of the Notes permitted
by Section 8.5 the principal amount of each required
prepayment of the Notes becoming due under this Section 8.1
on and after the date of such prepayment or purchase shall
be reduced in the same proportion as the aggregate unpaid
principal amount of the Notes is reduced as a result of such
prepayment or purchase.
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Section 8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided
below, prepay at any time all, or from time to time any part
of, the Notes, in an amount not less than 5% of the
aggregate principal amount of the Notes then outstanding in
the case of a partial prepayment, at 100% of the principal
amount so prepaid together with interest accrued thereon to
the date of such prepayment, plus the Make-Whole Amount, if
any, determined for the prepayment date with respect to such
principal amount. The Company will give each holder of
Notes written notice of each optional prepayment under this
Section 8.2 not less than 30 days and not more than 60 days
prior to the date fixed for such prepayment. Each such
notice shall specify such date, the aggregate principal
amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to
such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer
as to the estimated Make-Whole Amount, if any, due in
connection with such prepayment (calculated as if the date
of such notice were the date of the prepayment), setting
forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each
holder of Notes a certificate of a Senior Financial Officer
specifying the calculation of such Make-Whole Amount, if
any, as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In
the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in
proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for
prepayment.
Section 8.4. Maturity; Surrender, Etc. In the case of each
prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such
prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount,
if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to
accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and cancelled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
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Section 8.5. Purchase of Notes. The Company will not and
will not permit any Affiliate, which is directly or
indirectly controlled by the Company, to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement
and the Notes. The Company will promptly cancel all Notes
acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
Section 8.6. Make-Whole Amount. The term "Make-Whole
Amount" means, with respect to any Note, an amount equal to
the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of
such Note over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than
zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any
Note, the principal of such Note that is to be prepaid
pursuant to Section 8.2 or has become or is declared to
be immediately due and payable pursuant to Section
12.1, as the context requires.
"Discounted Value" means, with respect to the
Called Principal of any Note, the amount obtained by
discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect
to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on
the Notes is payable) equal to the Reinvestment Yield
with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the
Called Principal of any Note, the yield to maturity
implied by the lesser of the yields reported, as of
10:00 a.m. (New York time) on the second Business Day
preceding the Settlement Date with respect to such
Called Principal, on the display designated as (a)
Bloomberg Financial Markets News screen BTMM JN (or
such other Bloomberg Financial Markets News display as
may replace such BTMM JN screen) for actively traded
Japanese Government Bonds having a maturity which is
the same as the Remaining Average Life of such Called
Principal as of such Settlement Date, or (b) Bloomberg
Financial Markets News screen IRSB 16 (or such other
Bloomberg Financial Markets News screen which may
replace such IRSB 16 screen) for actively traded Yen
interest rate swaps which is the same as the Remaining
Average Life of such Called Principal as of such
Settlement Date, provided that if either of such yields
are not reported as of such time or either of the
yields reported as of such time are not ascertainable,
such yield to maturity in respect of Japanese
Government
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Bonds or Yen interest rate swaps, as the case may be,
shall be implied by the average of the rates as
determined by two Recognized Yen Bond Market Makers or
two Recognized Yen Swap Market Makers, as the case may
be. Such implied yields will be determined, if
necessary, by (i) converting quotations to
bond-equivalent yields in accordance with accepted
financial practice and (ii) interpolating linearly
between (x) the actively traded Japanese Government
Bonds or Yen interest rate swaps, as the case may be,
with a maturity closest to and greater than the
Remaining Average Life of such Called Principal as of
such Settlement Date.
"Recognized Yen Bond Market Maker" means any
financial institution that makes regular markets in
Japanese Government Bonds and Japanese Government
Bond-based securities and financial products, as shall
be agreed between the Required Holders and the Company
or, following the occurrence and continuance of an
Event of Default, as reasonably required by the
Required Holders.
"Recognized Yen Swap Market Maker" means any
financial institution that makes regular markets in Yen
interest rate swaps as shall be agreed between the
Required Holders and the Company or, following the
occurrence and continuance of an Event of Default, as
reasonably required by the Required Holders.
"Remaining Average Life" means, with respect to
any Called Principal, the number of years (calculated
to the nearest one-twelfth year) obtained by dividing
(i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) the principal
component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of
years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect
to the Called Principal of any Note, all payments of
such Called Principal and interest thereon that would
be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided
that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of
the Notes, then the amount of the next succeeding
scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to
Section 8.2 or 12.1.
"Settlement Date" means, with respect to the
Called Principal of any Note, the date on which such
Called Principal is to be prepaid pursuant to Section
8.2 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context
requires.
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Section 9. Affirmative Covenants.
The Company covenants that so long as any of the Notes
are outstanding:
Section 9.1. Compliance with Law. The Company will, and
will cause each of its Subsidiaries to, comply with all
laws, ordinances or governmental rules or regulations to
which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain
in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the
ownership of their respective properties or to the conduct
of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures
to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations
would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause
each of its Subsidiaries to, maintain, with financially
sound and reputable insurers, insurance with respect to
their respective properties and businesses against such
casualties and contingencies, of such types, on such terms
and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar
business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will,
and will cause each of its Subsidiaries to, maintain and
keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted
at all times, provided that this Section shall not prevent
the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its
business and the Company has concluded that such
discontinuance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes. The Company will, and will
cause each of its Subsidiaries to, file all income tax or
similar tax returns required to be filed in any jurisdiction
and to pay and discharge all taxes shown to be due and
payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of
their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and
payable and before they have become delinquent and all
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claims for which sums have become due and payable have or
might become a Lien on properties or assets of the Company
or any Subsidiary, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment or claims if
(a) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the
Company or a Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (b) the nonpayment of all such taxes
and assessments in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. The Company will at
all times preserve and keep in full force and effect its
corporate existence. Subject to Sections 9.3, 10.2 and
10.7, the Company will at all times preserve and keep in
full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a
Subsidiary) and all rights and franchises of the Company and
its Subsidiaries unless, in the good faith judgment of the
Company, the termination of or failure to preserve and keep
in full force and effect such corporate existence, right or
franchise would not, individually or in the aggregate, have
a Material Adverse Effect.
Section 9.6. Subsequent Guarantors. The Company agrees
that if at any time any Subsidiary which is not a Subsidiary
Guarantor on the date hereof, shall guarantee any of the
Bank Agreements, the Prudential Obligations or any other
Debt of the Company, the Company will cause such Subsidiary
to, simultaneously with the entry into the guarantee of such
Bank Agreements, the Prudential Obligations or any other
Debt, execute and deliver for the benefit of the holders of
the Notes a Guarantee Agreement.
Section 9.7. Covenant to Secure Notes Equally. In the
event that the Company or any Subsidiary shall create or
assume any Lien upon any of its property or assets, whether
now owned or hereafter acquired, other than Liens permitted
by the provisions of Section 10.6 (unless prior written
consent to the creation or assumption thereof shall have
been obtained pursuant to Section 17), it will make or cause
to be made effective provision whereby the Notes will be
secured by such Lien equally and ratably with any and all
other Debt thereby secured so long as any such other Debt
shall be so secured.
Section 9.8. Pari Passu Ranking. The Company's obligations
under the Notes and this Agreement will at all times rank at
least pari passu with all other unsecured present and future
Debt of the Company, except to the extent of any mandatory
preferences which may arise only as a result of any
applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
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Section 9.9. Rule 144A Information. The Company covenants
that it will, upon the request of the holder of any Note,
provide such holder, and any qualified institutional buyer
designated by such holder, such financial and other
information as such holder may reasonably determine to be
necessary in order to permit compliance with the information
requirements of Rule 144A under the Securities Act in
connection with the resale of Notes, except at such times as
the Company is subject to and in compliance with the
reporting requirements of section 13 or 15(d) of the
Exchange Act. For the purpose of this Section 9.9, the term
"qualified institutional buyer" shall have the meaning
specified in Rule 144A under the Securities Act.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes
are outstanding:
Section 10.1. Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, enter into
directly or indirectly any Material transaction or Material
group of related transactions (including without limitation
the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except
pursuant to the reasonable requirements of the Company's or
such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate.
Section 10.2. Merger, Consolidation, Etc. The Company will
not, and will not permit any Subsidiary to, merge or
consolidate with or into any other Person, except that, so
long as no Event of Default exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with
or into the Company, so long as the Company is the
continuing or surviving corporation,
(b) any Subsidiary may merge or consolidate with
or into another Subsidiary, so long as the surviving
Person is or contemporaneously becomes a Wholly-Owned
Subsidiary, and provided that if such merger or
consolidation involves a Subsidiary Guarantor and such
Subsidiary Guarantor is not the survivor, the surviving
Person shall assume in writing upon terms and
conditions reasonably satisfactory to the Required
Holders and will provide such related documents
(including, without limitation, corporate or other
showings, officer's certificates and opinions) as the
Required Holders may reasonably request, and
(c) the Company may merge with any other solvent
corporation, so long as the Company is the continuing
or surviving corporation.
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Section 10.3. Consolidated Net Worth. The Company will not
permit Consolidated Net Worth at any time to be less than
the sum of (a) $456,000,000 plus (b) to the extent positive,
25% of Consolidated Net Income for each fiscal quarter ended
subsequent to September 30, 2001 and prior to any date of
determination.
Section 10.4. Interest Coverage Ratio. The Company will not
permit as of the end of any fiscal quarter the ratio of
Consolidated EBITDA to Consolidated Interest Expense to be
less than 3.50 to 1.00 for the four consecutive fiscal
quarter period ended as of the end of such fiscal quarter,
commencing with the four consecutive fiscal quarter period
ended September 30, 2001.
Section 10.5. Debt and Priority Debt Limitations. The
Company will not permit (a) the ratio, expressed as a
percentage, of Consolidated Debt to Consolidated
Capitalization to (i)-exceed 65% at any time during the
period commencing on the date of Closing and ending on
December 31, 2002, (ii) exceed 55% during the period
commencing on January 1, 2003 and ending on December 31,
2003 or (iii) 50% at any time thereafter or (b) the
aggregate amount of Priority Debt to at any time exceed 15%
of Consolidated Net Worth.
Section 10.6. Permitted Liens. The Company will not, and
will not permit any Subsidiary to, create, assume or suffer
to exist any Lien upon any of its properties or assets,
whether now owned or hereafter acquired (whether or not
provision is made for the equal and ratable securing of the
Notes in accordance with the provisions of Section 9.7),
except:
(a) Liens for taxes, assessments or other
governmental levies or charges not yet due or which are
being contested in good faith for which adequate
reserves have been established in accordance with
generally accepted accounting principles,
(b) statutory Liens of landlords, Liens of
carriers, warehousemen, mechanics and materialmen, and
Liens of a similar nature, in each case that do not
secure Debt, are incurred in the ordinary course of
business and are for sums not yet due or are being
contested in good faith,
(c) Liens on property or assets of a Subsidiary
of the Company to secure obligations of such Subsidiary
to the Company or to a Wholly-Owned Subsidiary,
(d) Liens (other than any Lien imposed by ERISA)
incurred, or deposits made, in the ordinary course of
business, such as workers' compensation Liens or
statutory or legal obligation Liens; provided, however,
that such Liens were not incurred or made in connection
with the borrowing of money or the obtaining of
advances or credit,
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(e) survey exceptions and easements and
reservations arising in the ordinary course of business
that do not secure Debt, which do not in aggregate
materially detract from the use or value of the
property subject thereto,
(f) Liens existing on the date of this Agreement
and securing Debt of the Company and its Subsidiaries,
in each case as identified on Schedule 5.15 (including
those Liens on any assets acquired in connection with
the acquisition of the dental business of Degussa AG in
October, 2001),
(g) any Lien created to secure all or any part of
the purchase price, or to secure Debt incurred or
assumed to pay all or any part of the purchase price or
cost of construction, of property (or any improvement
thereon) acquired or constructed by the Company or a
Subsidiary after the date of this Agreement, provided
that
(i) any such Lien shall extend solely to the
item or items of such property (or improvement
thereon) so acquired or constructed,
(ii) the principal amount of the Debt secured
by any such Lien shall at no time exceed the cost
to the Company or such Subsidiary of the property
(or improvement thereon) so acquired or
constructed,
(iii) any such Lien shall be created
contemporaneously with, or within 90 days after,
the acquisition or construction of such property,
and
(iv) no such Lien shall attach to any
property the purchase of which was made with the
net sale proceeds of any assets described in the
proviso to Section 10.7,
(h) any Lien existing on property of a Person
immediately prior to its being consolidated with or
merged into the Company or a Subsidiary or its becoming
a Subsidiary, or any Lien existing on any property
acquired by the Company or any Subsidiary at the time
such property is so acquired (whether or not the Debt
secured thereby shall have been assumed), provided that
(i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such
Person's becoming a Subsidiary or such acquisition of
property, and (ii) each such Lien shall extend solely
to the item or items of property so acquired, and
(i) any Lien renewing, extending or refunding any
Lien permitted by clauses (f), (g) or (h) of this
Section 10.6, provided that (i) the principal amount of
Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased or the
maturity or remaining average life thereof reduced and
(ii) such Lien is not extended to any other property,
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(j) other Liens securing Debt of the Company or a
Subsidiary, provided that the aggregate principal
amount of Priority Debt shall at no time exceed 15% of
Consolidated Net Worth;
Section 10.7. Sale of Assets. The Company will not, and
will not permit any Subsidiary to, sell, exchange, convey,
lease, transfer or otherwise dispose of ("Transfer") any of
its assets (exclusive of sales of inventory in the ordinary
course of business), except that:
(a) any Subsidiary may Transfer assets to the
Company or to a Wholly-Owned Subsidiary (so long as any
such Transfer to a Wholly-Owned Subsidiary does not
result in the movement of assets from a Designated
Country to a country which is not a Designated
Country); or
(b) the Company or any Subsidiary may otherwise
Transfer assets, so long as after giving effect thereto
neither (i) the Annual Percentage of Earnings Capacity
Transferred pursuant to this subsection (b) and Section
10.8 exceeds 15%, nor (ii) the Annual Percentage of
Assets Transferred pursuant to this subsection (b) and
Section 10.8 exceeds 15%; provided that if the net sale
proceeds of any assets Transferred are, within 180 days
after the date of Transfer, (1) applied to the
prepayment of senior Debt of the Company (including the
Notes pursuant to the terms of Section 8.2) on a pro
rata basis or (2) used for the purchase of similar
assets (located in a Designated Country if and to the
extent the assets Transferred were located in a
Designated Country), then such Transfer shall not be
included in the calculations provided in this
subsection (b).
Section 10.8. Sale of Stock and Debt of Subsidiaries. The
Company will not sell or otherwise dispose of, or part with
control of, any shares of stock (or similar equity
interests) or Debt of any Subsidiary, except to the Company
or a Wholly-Owned Subsidiary, and except that all shares of
stock (or similar equity interests) and Debt of any
Subsidiary at the time owned by or owed to the Company and
all Subsidiaries may be sold as an entirety for a cash
consideration which represents the fair value (as determined
in good faith by the Board of Directors of the Company) at
the time of sale of the shares of stock (or similar equity
interests) and Debt so sold; provided that (a) such sale or
other disposition is treated as a Transfer of assets of such
Subsidiary and is permitted by Section 10.7 and (b) at the
time of such sale, such Subsidiary shall not own, directly
or indirectly, any shares of stock or Debt of any other
Subsidiary, unless all of the shares of stock and Debt of
such other Subsidiary owned, directly or indirectly, by the
Company and all Subsidiaries are simultaneously being sold
as permitted by this Section 10.8.
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Section 10.9. Sale or Discount of Receivables. The Company
will not, and will not permit any Subsidiary to, sell with
recourse, or discount or otherwise sell for less than the
face value thereof, any of its notes or accounts receivable,
other than (a) notes or accounts receivable the collection
of which is doubtful in accordance with generally accepted
accounting principles and (b) pursuant to the Brazilian
Receivables Program.
Section 10.10. Subsidiary Dividend Restrictions. The Company
will not incur or permit to exist any restriction (other
than restrictions imposed pursuant to any applicable law) on
any Subsidiary's ability to make dividends or other
distributions to the Company or any other Subsidiary, to
repay intra-company Debt or to otherwise transfer earnings
or assets to the Company or its Subsidiaries.
Section 10.11. Sale and Leasebacks. The Company will not
enter into any transaction, directly or indirectly, whereby
it shall sell or transfer any property, if at the time of
such sale or disposition the Company or any Subsidiary
intends to lease or otherwise acquire the right to use or
possess (except by purchase) such property or like property
for a substantially similar purpose (a "Sale and Leaseback
Transaction") except:
(a) any Sale and Leaseback Transaction in which
the property is sold by the Company to a Subsidiary or
by a Subsidiary to the Company or another Subsidiary, or
(b) the Company or any Subsidiary may enter into
any Sale and Leaseback Transaction if (i) at the time
thereof and immediately after giving effect thereto no
Default or Event of Default shall exist (including any
Event of Default under Section- 10.5(b)) and the
proceeds from the sale of the subject property shall be
equal to not less than 80% of its fair market value (as
reasonably determined by the Company's Board of
Directors); or
(c) any Sale and Leaseback Transaction in which
the property sold consists of the precious metals
inventory acquired by the Company in connection with
its acquisition of the dental business of Degussa AG in
October, 2001 in an aggregate equivalent amount not to
exceed U.S.$110,000,000, with respect to the precious
metals owned by the Degussa Dental Group prior to such
acquisition; provided any such Sale and Leaseback
Transaction shall be entered into and effective no
later than June 30, 2002.
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Section 10.12. Line of Business. The Company will not, and
will not permit any Subsidiary to, engage in any business
activities other than those related or incidental to its
present business activities, namely, the manufacture and
distribution of (a) dental supplies and equipment, (b)
medical/industrial supplies and equipment and (c) other
healthcare products, provided, that (i) the net business
activities described in clause (c) shall not represent more
than 20% of the Consolidated Net Income for any fiscal year,
commencing with the fiscal year ended December 31, 2001 and
(ii) the assets of the business activities described in
clause (c) shall not at any time represent more than 20% of
the consolidated assets of the Company and its Subsidiaries.
Section 11. Events of Default.
An "Event of Default" shall exist if any of the
following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any
principal or Make-Whole Amount, if any, on any Note
when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any
interest on any Note for more than five days after the
same becomes due and payable; or
(c) the Company defaults in the performance of or
compliance with any term contained in Sections 10.2
through 10.11, inclusive; or
(d) the Company defaults in the performance of or
compliance with any term contained herein (other than
those referred to in paragraphs (a), (b) and (c) of
this Section-11) and such default is not remedied
within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and
(ii) the Company receiving written notice of such
default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of
Section 11); or
(e) any representation or warranty made in
writing by or on behalf of the Company or by any
officer of the Company in this Agreement or in any
writing furnished in connection with the transactions
contemplated hereby proves to have been false or
incorrect in any material respect on the date as of
which made; or
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(f) (i) the Company or any Subsidiary is in
default (as principal or as guarantor or other surety)
in the payment of any principal of or premium or
make-whole amount or interest on any Debt that is
outstanding in an aggregate principal amount of at
least $10,000,000 beyond any period of grace provided
with respect thereto, or (ii) the Company or any
Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Debt in
an aggregate outstanding principal amount of at least
$10,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other condition
exists, and as a consequence of such default or
condition such Debt has become, or has been declared
(or one or more persons are entitled to declare such
Debt to be), due and payable before its stated maturity
or before its regularly scheduled dates of payment or
(iii) as a consequence of the occurrence or
continuation of any event or condition (other than the
passage of time or the right of the holder of Debt to
convert such Debt into equity interests), (x) the
Company or any Subsidiary has become obligated to
purchase or repay Debt before its regular maturity or
before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least
$10,000,000, or (y) one or more persons has the right
to require the Company or any Subsidiary so to purchase
or repay such Debt; or
(g) the Company or any Material Subsidiary (i) is
generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii)
files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for
the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi)
takes corporate action for the purpose of any of the
foregoing; or
(h) a court or governmental authority of
competent jurisdiction enters an order appointing,
without consent by the Company or any of its Material
Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with
respect to any substantial part of its property, or
constituting an order for relief or approving a
petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up
or liquidation of the Company or any of its Material
Subsidiaries, or any such petition shall be filed
against the Company or any of its Material Subsidiaries
and such petition shall not be dismissed within 60
days; or
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(i) a final judgment or judgments for the payment
of money aggregating in excess of $10,000,000 are
rendered against one or more of the Company and its
Material Subsidiaries and which judgments are not,
within 60 days after entry thereof, bonded, discharged
or stayed pending appeal, or are not discharged within
60 days after the expiration of such stay; or
(j) any default shall occur under any Guarantee
Agreement or any Guarantee Agreement shall cease to be
in full force and effect for any reason whatsoever,
including, without limitation, a determination by any
governmental body or court that such Guarantee
Agreement is invalid, void or unenforceable or any
guarantor party thereto shall contest or deny in
writing the validity or enforceability of any of its
obligations under any such Guarantee Agreement; or
(k) if (i) any Plan shall fail to satisfy the
minimum funding standards of ERISA or the Code for any
plan year or part thereof or a waiver of such standards
or extension of any amortization period is sought or
granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the
PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a
subject of any such proceedings, (iii) the aggregate
"amount of unfunded benefit liabilities" (within the
meaning of section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA,
shall exceed $10,000,000, (iv) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected
to incur any liability pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the
Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare
benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability
of the Company or any Subsidiary thereunder; and any
such event or events described in clauses (i) through
(vi) above, either individually or together with any
other such event or events, would reasonably be
expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit
plan" and "employee welfare benefit plan" shall have the
respective meanings assigned to such terms in Section 3 of
ERISA.
Section 12. Remedies on Default, Etc.
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Section 12.1. Acceleration. (a) If an Event of Default
with respect to the Company described in paragraph (g) or
(h) of Section 11 (other than an Event of Default described
in clause (i) of paragraph (g) or described in clause (vi)
of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all
the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of at least 51% in
principal amount of the Notes at the time outstanding may at
any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a)
or (b) of Section 11 has occurred and is continuing, any
holder or holders of Notes at the time outstanding affected
by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the
Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such
Notes will forthwith mature and the entire unpaid principal
amount, if any, of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount, if
any, determined in respect of such principal amount (to the
full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which
are hereby waived. The Company acknowledges, and the
parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically
provided for) and that the provision for payment of a
Make-Whole Amount, if any, by the Company in the event that
the Notes are prepaid or are accelerated as a result of an
Event of Default, is intended to provide compensation for
the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of
Default has occurred and is continuing, and irrespective of
whether any Notes have become or have been declared
immediately due and payable under Section 12.1, the holder
of any Note at the time outstanding may proceed to protect
and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein
or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the
exercise of any power granted hereby or thereby or by law or
otherwise.
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Section 12.3. Rescission. At any time after any Notes have
been declared due and payable pursuant to clause (b) or (c)
of Section 12.1, the holders of not less than 51% in
principal amount of the Notes then outstanding, by written
notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid
all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and
Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become
due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment
or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect
any subsequent Event of Default or Default or impair any
right consequent thereon
Section 12.4. No Waivers or Election of Remedies, Expenses,
Etc. No course of dealing and no delay on the part of any
holder of any Note in exercising any right, power or remedy
shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon
any holder thereof shall be exclusive of any other right,
power or remedy referred to herein or therein or now or
hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company
under Section 15, the Company will pay to the holder of each
Note on demand such further amount as shall be sufficient to
cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including,
without limitation, reasonable attorneys' fees, expenses and
disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
Section 13.1. Registration of Notes. The Company shall keep
at its principal executive office a register for the
registration and registration of transfers of Notes. The
name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all
purposes hereof, and the Company shall not be affected by
any notice or knowledge to the contrary. The Company shall
give to any holder of a Note that is an Institutional
Investor promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered
holders of Notes.
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Section 13.2. Transfer and Exchange of Notes. Upon
surrender of any Note at the principal executive office of
the Company for registration of transfer or exchange (and in
the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of such Note or his
attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the
Company's expense (except as provided below), one or more
new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such
new Note shall be payable to such Person as such holder may
request and shall be substantially in the form of Exhibit
1. Each such new Note shall be dated and bear interest from
the date to which interest shall have been paid on the
surrendered Note or dated the date of the surrendered Note
if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp
tax or governmental charge imposed in respect of any such
transfer of Notes. Notes shall not be transferred in
denominations of less than JPY 125,000,000, provided that if
necessary to enable the registration of transfer by a holder
of its entire holding of Notes, one Note may be in a
denomination of less than JPY 125,000,000. Any transferee,
by its acceptance of a Note registered in its name (or the
name of its nominee), shall be deemed to have made the
representation set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the
Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation
of any Note (which evidence shall be, in the case of an
Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if
the holder of such Note is, or is a nominee for, an original
Purchaser or another holder of a Note with a minimum net
worth of at least $100,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory),
or
(b) in the case of mutilation, upon surrender and
cancellation thereof, the Company at its own expense shall
execute and deliver, in lieu thereof, a new Note, dated and
bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
Section 14. Payments on Notes.
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Section 14.1. Place of Payment. Subject to Section 14.2,
payments of principal, Make-Whole Amount, if any, and
interest becoming due and payable hereunder or on the Notes
shall be made during the business day in Japan in New York
City, New York at the principal office of The Chase
Manhattan Bank in such jurisdiction. The Company may at any
time, by notice to each holder of a Note, change the place
of payment of the Notes so long as such place of payment
shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
Section 14.2. Home Office Payment. So long as you or your
nominee shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such
Note for principal, Make-Whole Amount, if any, and interest
by the method and at the address specified for such purpose
below your name in Schedule A, or by such other method or at
such other address as you shall have from time to time
specified to the Company in writing for such purpose,
without the presentation or surrender of such Note or the
making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note,
you shall surrender such Note for cancellation, reasonably
promptly after any such request, to the Company at its
principal executive office or at the place of payment most
recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note
held by you or your nominee you will, at your election,
either endorse thereon the amount of principal paid thereon
and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new
Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement
and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
Section 14.3. Judgment Currency. Any payment on account of
an amount that is payable hereunder or under the Notes in a
specified currency (the "Specified Currency") which,
notwithstanding the requirement of the Notes, is made to or
for the account of any holder of a Note in lawful currency
of any other jurisdiction (the "Other Currency"), whether as
a result of any judgment or order or the enforcement thereof
or the realization of any security or the liquidation of the
Company, shall constitute a discharge of the Company's
obligation under this Agreement and such Notes only to the
extent of the amount of the Specified Currency which such
holder could purchase in New York foreign exchange markets
with the amount of the Other Currency in accordance with
normal banking procedures at the rate of exchange prevailing
at 10:00 a.m. on the first New York Business Day following
receipt of the payment first referred to above. If the
amount of the Specified Currency that could be so purchased
is less than the amount of Specified Currency originally due
to such holder, the Company shall indemnify and save
harmless such holder from
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and against all loss or damage arising out of or as a result
of such deficiency. This indemnity shall constitute an
obligation separate and independent from the other
obligations contained in this Agreement, shall give rise to
a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any holder of a
Note from time to time and shall continue in full force and
effect notwithstanding any judgment or order for a
liquidated sum in respect of an amount due hereunder or
under any judgment or order.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the
transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including
reasonable attorneys' fees of the special counsel referenced
in Section 4.4(b) and, if reasonably required, local
counsel) incurred by you and each Other Purchaser or holder
of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not
such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether
or how to enforce or defend) any rights under this Agreement
or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of
being a holder of any Note, and (b) the costs and expenses,
including, at any given time, one financial advisor's fees
(acting for all holders of Notes), incurred in connection
with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by
the Notes. The Company will pay, and will save you and each
other holder of a Note harmless from, all claims in respect
of any fees, costs or expenses if any, of brokers and
finders (other than those retained by you).
Section 15.2. Survival. The obligations of the Company
under this Section 15 will survive the payment or transfer
of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the
termination of this Agreement.
Section 16. Survival of Representations and Warranties;
Entire Agreement.
All representations and warranties contained herein
shall survive the execution and delivery of this Agreement
and the Notes, the purchase or transfer by you of any Note
or portion thereof or interest therein and the payment of
any Note, and may be relied upon by any subsequent holder of
a Note, regardless of any investigation made at any time by
or on behalf of you or any other holder of a Note. All
statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed
D6
representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and
understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject
matter hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. This Agreement and the Notes
may be amended, and the observance of any term hereof or of
the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of
the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1,
2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is
used therein), will be effective as to you unless consented
to by you in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note
at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the
time of payment or method of computation of interest or of
the Make-Whole Amount on, the Notes, (ii) change the
percentage of the principal amount of the Notes the holders
of which are required to consent to any such amendment or
waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12,
17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder
of the Notes (irrespective of the amount of Notes then owned
by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such
holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes.
The Company will deliver executed or true and correct copies
of each amendment, waiver or consent effected pursuant to
the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or
indirectly pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or
otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into
by any holder of Notes of any waiver or amendment of any of
the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on
the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such
waiver or amendment.
D6
Section 17.3. Binding Effect, Etc. Any amendment or waiver
consented to as provided in this Section 17 applies equally
to all holders of Notes and is binding upon them and upon
each future holder of any Note and upon the Company without
regard to whether such Note has been marked to indicate such
amendment or waiver. No such amendment or waiver will
extend to or affect any obligation, covenant, agreement,
Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of
dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any
Note shall operate as a waiver of any rights of any holder
of such Note. As used herein, the term "this Agreement" and
references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the
purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver
or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in
the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of
Notes then outstanding, Notes directly or indirectly owned
by the Company or any of its Affiliates shall be deemed not
to be outstanding.
Section 18. Notices.
All notices and communications provided for hereunder
shall be in writing and sent (a)-by telecopy if the sender
on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid). Any such
notice must be sent:
(i) if to you or your nominee, to you or it at
the address specified for such communications in
Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such
holder at such address as such other holder shall have
specified to the Company in writing, or
(iii) if to the Company, to the Company at its
address set forth at the beginning hereof to the
attention of the Treasurer, with a copy to the same
address to the attention of the Secretary, or at such
other address as the Company shall have specified to
the holder of each Note in writing.
D6
Notices under this Section 18 will be deemed given only when
actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating thereto,
including, without limitation, (a)-consents, waivers and
modifications that may hereafter be executed, (b) documents
received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and
other information previously or hereafter furnished to you,
may be reproduced by you by any photographic, photostatic,
microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so
reproduced. The Company agrees and stipulates that, to the
extent permitted by applicable law, any such reproduction
shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such
reproduction was made by you in the regular course of
business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be
admissible in evidence. This Section 19 shall not prohibit
the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate
the inaccuracy of any such reproduction.
Section 20. Confidential Information.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on
behalf of the Company or any Subsidiary in connection with
the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified
when received by you as being confidential information of
the Company or such Subsidiary, provided that such term does
not include information that (a) was publicly known or
otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any Person acting on your behalf, (c)
otherwise becomes known to you other than through disclosure
by the Company or any Subsidiary without breach of any
obligation of confidentiality owed by a third party to the
Company or any Subsidiary of which you have knowledge or (d)
constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available. You will
maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in
good faith to protect confidential information of third
parties delivered to you but, in any event, in accordance
with not less than reasonable care, provided that you may
deliver or disclose Confidential Information to (i) your
directors, officers, employees, trustees, agents, attorneys
and affiliates, (to the extent such disclosure reasonably
relates to the administration of the investment represented
by your Notes),
D6
(ii) your financial advisors and other professional advisors
who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section
20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell
such Note or any part thereof or any participation therein
(if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the
provisions of this Section 20), (v)-any Person from which
you offer to purchase any security of the Company (if such
Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory
authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency
that requires access to information about your investment
portfolio, or (viii) any other Person to which such delivery
or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order
applicable to you, (x) in response to any subpoena or other
legal process, (y) in connection with any litigation to
which you are a party provided that you provide prompt
notice (if reasonably possible, prior to such disclosure) to
the Company so that the Company may seek an appropriate
protective order or other remedy or (z) if an Event of
Default has occurred and is continuing, to the extent you
may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and
this Agreement. Each holder of a Note, by its acceptance of
a Note, will be deemed to have agreed to be bound by and to
be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of
a Note of information required to be delivered to such
holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or
its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
Section 21. Substitution of Purchaser.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have
agreed to purchase hereunder, by written notice to the
Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by
such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of
such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall
be deemed to refer to such Affiliate in lieu of you. In the
event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all
of the Notes then held by such Affiliate, upon receipt by
the Company of notice of such transfer, wherever the word
"you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to you, and you shall have all
the rights of an original holder of the Notes under this
Agreement.
D6
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and
other agreements contained in this Agreement by or on behalf
of any of the parties hereto bind and inure to the benefit
of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether
so expressed or not.
Section 22.2. Payments Due on Non-Business Days. Anything
in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole
Amount or interest on any Note that is due on a date other
than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed
in the computation of the interest payable on such next
succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render
unenforceable such provision in any other jurisdiction
Section 22.4. Construction. Each covenant contained herein
shall be construed (absent express provision to the
contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where
any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Section 22.5. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an
original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
Section 22.6. Governing Law. This Agreement shall be
construed and enforced in accordance with, and the rights of
the parties shall be governed by, the law of the State of
New York excluding choice-of-law principles of the law of
such State that would require the application of the laws of
a jurisdiction other than such State.
* * * * *
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If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of
this Agreement and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and
the Company.
Very truly yours,
DENTSPLY International Inc.
By_____________________________
[Title]
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The foregoing is hereby agreed to as of the date
thereof.
[Add Purchaser Signature Blocks]
D6
A-5
Schedule A
(to Note Purchase Agreement)
Information Relating to Purchasers
Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
JPY 1,559,375,000
Massachusetts Mutual Life
Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen, (identifying each payment
as DENTSPLY International Inc., interest and principal), to:
Chase Manhattan Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For MassMutual Pension Management
Account No. 910-▇▇▇▇▇▇▇
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
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2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Custody and Collection Department - F381
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
D6
Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Massachusetts Mutual Life JPY 237,025,000
Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen (identifying each payment as
DENTSPLY International Inc., interest and principal), to:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For MassMutual Spot Priced Contract
Account No. 3890-4953
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment DivisionAttention:
Securities Custody and Collection Department - F381
2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Custody and Collection Department - F381
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
D6
Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Massachusetts Mutual Life JPY 1,322,350,000
Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen, (identifying each payment
as DENTSPLY International Inc., interest and principal), to:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For MassMutual Long-Term Pool
Account No. 4067-3488
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Custody and Collection Department - F381
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
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Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Nationwide Life Insurance JPY 3,118,750,000
Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen (identifying each payment as
DENTSPLY International Inc., interest and principal), to:
ABN AMRO Bank, Tokyo
Swift Code ▇▇▇▇▇▇▇▇
Account No. 12.23.499 JPY
Ref: Derivatives Operations
Ref Inf# 120142
PPN#___________________________
Security Description _________________
Notices
1. Send Communications and Notices to:
Nationwide Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Fixed-Income Securities
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
2. Send Notices on Payments to:
Nationwide Life Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
Attn: P&I Department
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
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Schedule B
(to Note Purchase Agreement)
Defined Terms
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"Affiliate" means, at any time, and with respect to any
Person, (a) any other Person that at such time directly or
indirectly through one or more intermediaries Controls, or
is Controlled by, or is under common Control with, such
first Person, and (b) any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of
voting or equity interests of the Company or any Subsidiary
or any corporation of which the Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity
interests. As used in this definition, "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. Unless the context otherwise
clearly requires, any reference to an "Affiliate" is a
reference to an Affiliate of the Company.
"Annual Percentage of Assets Transferred" means, with
respect to any fiscal year of the Company, the sum of the
Percentages of Assets Transferred for each asset of the
Company and its Subsidiaries that is Transferred during such
fiscal year.
"Annual Percentage of Earnings Capacity Transferred"
means, with respect to any fiscal year of the Company, the
sum of the Percentages of Earnings Capacity Transferred for
each asset of the Company and its Subsidiaries that is
Transferred during such fiscal year.
"Anti-Terrorism Order" means Executive Order No.13,224
of September 24, 2001, Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, 66 Fed. Reg. 49,049 (2001).
"Bank Agreements" means (a) the $250,000,000 Facility A
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of May 25, 2001, among the Company and
the other Persons named as parties thereto, as amended or
otherwise modified from time to time and (b) the
$250,000,000 Five-Year Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of May 25, 2001 among the
Company and the other Persons named as parties thereto, as
amended or otherwise modified from time to time.
"Brazilian Receivables Program" means the sale by
Subsidiaries to Brazilian banks of Dollar denominated
receivables from the Company and Subsidiaries arising in the
ordinary course of business, the aggregate outstanding face
amount of which shall at no time exceed $1,000,000.
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"Business Day" means (a) for the purposes of Section
8.6 only, any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City or Tokyo are
required or authorized to be closed, and (b) for the
purposes of any other provision of this Agreement, any day
other than a Saturday, a Sunday or a day on which commercial
banks in New York are required or authorized to be closed.
"Capital Lease" means, at any time, a lease with
respect to which the lessee is required concurrently to
recognize the acquisition of an asset and the incurrence of
a liability in accordance with GAAP.
"Capitalized Lease Obligation" means any rental
obligation which, under generally accepted accounting
principles, is or will be required to be capitalized on the
books of the lessee thereunder, taken at the amount thereof
accounted for as indebtedness (net of interest expenses) in
accordance with such principles.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Company" means DENTSPLY International Inc., a Delaware
corporation.
"Competitor" means any Person who is substantially
engaged in a business in which the Company or any Material
Subsidiary is substantially engaged provided that:
(a) the provision of investment advisory services
by a Person to a Plan which is owned or controlled by a
Person which would otherwise be a Competitor shall not
of itself cause the Person providing such services to
be deemed to be a Competitor if such Person has
established procedures which will prevent confidential
information supplied to such Person by the Company from
being transmitted or otherwise made available to such
Plan or Person owning or controlling such Plan; and
(b) in no event shall an Institutional Investor
be deemed a Competitor.
"Confidential Information" is defined in Section 20.
"Consolidated Capitalization" means, at any time of
determination thereof, the sum of Consolidated Net Worth and
Consolidated Debt.
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"Consolidated Debt" means, at any time of determination
thereof, all Debt of the Company and Subsidiaries on a
consolidated basis.
"Consolidated EBITDA" means, for any period, income (or
loss) from operations of the Company and Subsidiaries on a
consolidated basis plus, to the extent deducted in the
calculation thereof, depreciation and amortization; provided
that there shall be excluded:
(a) the income (or loss) from operations of any
Person for any period prior to the date it becomes a
Subsidiary or is merged into or consolidated with the
Company or a Subsidiary, and
(b) the income from operations of any Person
(other than a Subsidiary) in which the Company or any
Subsidiary has an ownership interest, except to the
extent that any such income has actually been received
by the Company or any Subsidiary in the form of cash
dividends or similar distributions.
"Consolidated Interest Expense" means, for any period,
for the Company and its Subsidiaries on a consolidated
basis, (a) interest expense, plus (b) all amortization of
debt discount and expense, less (c) interest income.
"Consolidated Net Income" means, for any period, the
net income (or net loss) of the Company and its Subsidiaries
on a consolidated basis, calculated without giving effect to:
(a) the net income (or net loss) of any Person
for any period prior to the date it becomes a
Subsidiary or is merged into or consolidated with the
Company or a Subsidiary; or
(b) the net income of any Person (other than a
Subsidiary) in which the Company or any Subsidiary has
an ownership interest, except to the extent that any
such income has actually been received by the Company
or any Subsidiary in the form of cash dividends or
similar distributions.
"Consolidated Net Worth" means, at any time of
determination thereof, the sum of (a) capital stock (less
treasury stock), (b) additional paid-in capital and (c)
retained earnings (or accumulated deficit) of the Company
and Subsidiaries on a consolidated basis.
"Debt" shall mean with respect to any Person (without
duplication):
(a) all obligations of such Person for borrowed
money and mandatorily redeemable preferred stock;
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(b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;
(c) all obligations of such Person upon which
interest charges are customarily paid;
(d) all obligations of such Person under
conditional sale or other title retention agreements
relating to property or assets purchased by such Person;
(e) all obligations of such Person issued or
assumed as the deferred and unpaid purchase price of
property or services (excluding trade accounts payable
and accrued obligations incurred in the ordinary course
of business that are not more than 90 days past due);
(f) all obligations secured by any Lien or other
charge upon property or assets owned by such Person,
whether or not such Person has assumed or become liable
for the payment of such obligations,
(g) Capitalized Lease Obligations of such Person;
(h) all obligations of such Person in respect of
interest rate protection agreements, foreign currency
exchange agreements or other interest or exchange rate
hedging arrangements;
(i) all obligations of such Person as an account
party in respect of letters of credit, bankers'
acceptances or instruments serving a similar function
issued or accepted for its account by banks and other
financial institutions (whether or not representing
obligations for borrowed money); and
(j) all Guarantees of such Person with respect to
Debt of another Person.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the
giving of notice or both, become an Event of Default.
"Default Rate" means that rate of interest per annum
that is the greater of (a) 1.0% per annum above the rate of
interest stated in clause (a) of the first paragraph of the
Notes or (b) 1.0% over the rate of interest publicly
announced by The Bank of Japan, in Tokyo, Japan as its
"base" or "prime" (or the equivalent thereof in Japan) rate.
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"Designated Country" means the United States of America
and member states of the European Union on the date hereof
(other than Turkey or Greece), Canada or Japan.
"Dollars" and "$" means the lawful currency of the
United States of America.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the
environment or the release of any materials into the
environment, including but not limited to those related to
hazardous substances or wastes, air emissions and discharges
to waste or public systems.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in
effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is treated as a single employer
together with the Company under Section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
as in effect from time to time in the United States of
America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any
State or other political subdivision thereof, or
(ii) any jurisdiction in which the Company or
any Subsidiary conducts all or any part of its
business, or which asserts jurisdiction over any
properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
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"Group" means the Company and its Subsidiaries.
"Guarantee Agreement" and "Guarantee Agreements" is
defined in Section 1(b).
"Guaranty" means, with respect to any Person, any
obligation (except the endorsement in the ordinary course of
business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation
of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by
such Person:
(a) to purchase such indebtedness or obligation
or any property constituting security therefor;
(b) to advance or supply funds (i) for the
purchase or payment of such indebtedness or obligation,
or (ii) to maintain any working capital or other
balance sheet condition or any income statement
condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of
such indebtedness or obligation;
(c) to lease properties or to purchase properties
or services primarily for the purpose of assuring the
owner of such indebtedness or obligation of the ability
of any other Person to make payment of the indebtedness
or obligation; or
(d) otherwise to assure the owner of such
indebtedness or obligation against loss in respect
thereof.
In any computation of the indebtedness or other liabilities
of the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
"holder" means, with respect to any Note, the Person in
whose name such Note is registered in the register
maintained by the Company pursuant to Section 13.1.
"Institutional Investor" means (a) any original
purchaser of a Note, (b) any holder of a Note holding more
than 5% of the aggregate principal amount of the Notes then
outstanding, and (c) any bank, trust company, savings and
loan association or other financial institution, any pension
plan, any investment company, any insurance company, any
broker or dealer, or any other similar financial institution
or entity, regardless of legal form.
"JPY" or "Japanese Yen" means the lawful currency of
Japan.
D6
"Lien" means, with respect to any Person, any mortgage,
lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset
of such Person (including in the case of stock, stockholder
agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, or
properties of the Company and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, operations, affairs, financial
condition, assets or properties of the Company and its
Subsidiaries taken as a whole, or (b) the ability of the
Company to perform its obligations under this Agreement and
the Notes, or (c) the validity or enforceability of this
Agreement or the Notes.
"Material Subsidiary" means any Subsidiary (a) which
provided 5% or more of Consolidated Net Income during the
fiscal year of the Company most recently ended at any time
of determination, (b) whose tangible assets represented 5%
or more of the tangible assets of the Company and
Subsidiaries on a consolidated basis as of the last day of
the fiscal year of the Company most recently ended at any
time of determination, or (c) whose net worth represented 5%
or more of Consolidated Net Worth as of the last day of the
fiscal year of the Company most recently ended at any time
of determination; provided that, if at any time the
aggregate amount of net income, tangible assets or net worth
of all Subsidiaries incorporated or otherwise organized in
the United States that are not Material Subsidiaries exceeds
15% of Consolidated Net Income for any such fiscal year, 15%
of the consolidated tangible assets of the Company and
Subsidiaries as of the end of any such fiscal year or 15% of
Consolidated Net Worth as of the end of any such fiscal year
(as applicable), the Company shall designate as "Material
Subsidiaries" Subsidiaries incorporated or otherwise
organized in the United States sufficient to eliminate such
excess, and such designated Subsidiaries incorporated in the
United States shall for all purposes of this Agreement
constitute Material Subsidiaries.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
D6
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company
whose responsibilities extend to the subject matter of such
certificate.
"Other Agreements" is defined in Section 2.
"Other Currency" is defined in Section 14.3.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Percentage of Assets Transferred" means, with respect
to each asset Transferred pursuant to clause (ii) of Section
10.7(b) and Section 10.8, the ratio (expressed as a
percentage) of (a) the greater of such asset's fair market
value or book value on the date of such Transfer to (b) the
consolidated total assets of the Company and Subsidiaries on
the last day of the fiscal year most recently ended as of
the date of such Transfer.
"Percentage of Earnings Capacity Transferred" means,
with respect to each asset Transferred pursuant to clause
(i) of Section 10.7(b) or Section 10.8, the percentage of
Consolidated EBITDA produced by, or attributable to, such
asset during the fiscal year most recently ended prior to
the date of such Transfer.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust,
unincorporated organization, or a government or agency or
political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five
years, has been established or maintained, or to which
contributions are or, within the preceding five years, have
been made or required to be made, by the Company or any
ERISA Affiliate or with respect to which the Company or any
ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a
corporation that is preferred over any other class of
capital stock of such corporation as to the payment of
dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
D6
"Priority Debt" means, at any time of determination
thereof, without duplication, (a) Debt of the Company
secured by Liens not otherwise permitted by clauses (a)
through (i) of Section 10.6, plus (b) Debt of Subsidiaries
(other than (i) Debt of any Subsidiary owed to the Company
or any Wholly-owned Subsidiary and (ii) Debt of any
Subsidiary so long as such Subsidiary is a Subsidiary
Guarantor and the creditor with respect to such Debt has
entered into an Intercreditor Agreement with the holders of
the Notes on the same terms and conditions as the
intercreditor agreement as in effect on the date hereof
between the holders of the Prudential Obligations and the
Debt outstanding under the Bank Agreements, provided,
however, that the foregoing requirement of an Intercreditor
Agreement shall not apply to the Subsidiary Guarantors which
are, as of the date hereof, guarantors of the Prudential
Obligations or the Debt under the Bank Agreements and
(iii) the Guarantee Agreements) plus (c) the book value (at
the time of sale) of all assets sold by the Company and
Subsidiaries subsequent to March 1, 2001 which were the
subject of a Sale and Leaseback Transaction (other than a
Sale-Leaseback Transaction permitted by Section 10.7(a)).
"property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, ▇▇▇▇▇▇ or inchoate.
"Prudential Obligations" means the obligations at any
time of the Company under and pursuant to that certain
Agreement dated as of March 1, 2001 between the Company and
The Prudential Insurance Company of America and each
Prudential Affiliate (as defined therein) which becomes
bound by such Agreement and any senior promissory notes
issued and sold under and pursuant to such Agreement and
then outstanding.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of
Labor.
"Required Holders" means, at any time, the holders of
at least 51% in principal amount of the Notes at the time
outstanding (exclusive of Notes then owned by the Company or
any of its Affiliates).
"Responsible Officer" means any Senior Financial
Officer and any other officer of the Company with
responsibility for the administration of the relevant
portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or
comptroller of the Company.
"Specified Currency" is defined in Section 14.3.
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"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or
one or more of its Subsidiaries or such Person and one or
more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in
the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by
such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business
actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise
clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Subsidiary Guarantor" means the companies listed on
Exhibit 1(b) and any other Subsidiary that may from time to
time execute and deliver a Guarantee Agreement and which
Guarantee Agreement has not been terminated in accordance
with the terms thereof.
"Swaps" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency
swaps and similar obligations obligating such Person to make
payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount
of the obligation under any Swap shall be the amount
determined in respect thereof as of the end of the then most
recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such
fiscal quarter, and in making such determination, if any
agreement relating to such Swap provides for the netting of
amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the
amount of such obligation shall be the net amount so
determined.
"Wholly-Owned Subsidiary" means, at any time, any
Subsidiary one hundred percent (100%) of all of the equity
interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Subsidiaries at
such time.
D6
Exhibit 1(a)
(to Note Purchase Agreement)
[Form of Note]
DENTSPLY International Inc.
1.39% Guaranteed Senior Note Due December 28, 2005
No. [_____] [Date]
JPY [_______] PPN 249030 B* 7
For Value Received, the undersigned, DENTSPLY
International Inc. (herein called the "Company"), a
corporation organized and existing under the laws of the
State of Delaware, hereby promises to pay to
[___________________________], or registered assigns, the
principal sum of JPY [___________________________] on
[_____________, ____], with interest (computed on the basis
of a 360-day year of twelve 30-day months) (a) on the unpaid
balance thereof at the rate of 1.39% per annum from the date
hereof, payable semiannually, on the twenty-eighth (28th)
day of June and December in each year, commencing with the
June 28th or December 28th next succeeding the date hereof,
until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note
Purchase Agreements referred to below), payable semiannually
as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 2.39% or (ii) 1.0% over the rate
of interest publicly announced by [The Bank of Japan] from
time to time in Tokyo, Japan as its "base" or "prime" (or
the equivalent thereof in Japan) rate.
Payments of principal of, interest on and any
Make-Whole Amount with respect to this Note are to be made
in lawful money of Japan at The Chase Manhattan Bank, New
York, New York or at such other place as the Company shall
have designated by written notice to the holder of this Note
as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Guaranteed Senior Notes
(herein called the "Notes") issued pursuant to separate Note
Purchase Agreements, dated as of December 28, 2001 (as from
time to time amended, the "Note Purchase Agreements"),
between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. The
obligations of the Company under this Note and the Note
Purchase Agreements are guaranteed pursuant to the Guarantee
Agreements. Each holder of this Note will be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representations set
forth in Section 6.2 of the Note Purchase Agreements.
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This Note is a registered Note and, as provided in the
Note Purchase Agreements, upon surrender of this Note for
registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly
authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal
on the dates and in the amounts specified in the Note
Purchase Agreements. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this
Note may be declared or otherwise become due and payable in
the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note
Purchase Agreements.
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This Note shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by,
the laws of the State of New York excluding choice-of-law
principles of the law of such State that would require the
application of the laws of a jurisdiction other than such
State.
DENTSPLY International Inc.
By_________________________
[Title:]
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Exhibit 4(a)
(to Note Purchase Agreement)
Form of Opinion of Counsel
to the Company
D6
Exhibit 4.4(b)
(to Note Purchase Agreement)
Form of Opinion of Special Counsel
to the Purchasers
D6
Schedule 4.9
(to Note Purchase Agreement)
Degussa Acquisition
On October 2, 2001, DENTSPLY announced that it had
acquired several German and International Degussa Group
companies which together constitute the entire dental
business of the Degussa Group (together referred to as
"Degussa Dental"). The price paid for the Degussa Dental
Acquisition was (euro)576 million (approximately equal to U.S.
$530 million based on the exchange rate at the time of
closing).
Degussa Dental designs, develops and manufactures a
broad range of dental products and complete system solutions
used in preventative, restorative and orthodontic treatment
by dental laboratories, dentists, orthodontists and oral
surgeons.
D6
Schedule 4.10
(to Note Purchase Agreement)
Guarantors
Ceramco Inc.
Ceramco Manufacturing Co.
DENTSPLY Finance Co.
DENTSPLY International Preventive Care
Division L.P.
DENTSPLY Research & Development Corp.
G.A.C. International, Inc.
Midwest Dental Products Corporation
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Company
Tulsa Dental Products Inc.
D6
Schedule 5.8
(to Note Purchase Agreement)
Litigation
None.
D6
Schedule 5.11
(to Note Purchase Agreement)
Licenses, Permits, Etc.
None.
D6
Schedule 5.15
(to Note Purchase Agreement)
Existing Debt
D6