EXHIBIT 4.5
Exhibit 4.5
BIO-RAD LABORATORIES, INC.
(as Issuer)
11-5/8% Senior Subordinated Notes due 2007
_____________
INDENTURE
Dated as of February 17, 2000
_____________
Norwest Bank Minnesota, N.A.
(as Trustee)
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1 Definitions 1
Section 1.2 Other Definitions 21
Section 1.3Incorporation by Reference of Trust Indenture Act 22
Section 1.4 Rules of Construction 23
ARTICLE IITHE NOTES 23
Section 2.1 Form and Dating 23
Section 2.2 Execution and Authentication 24
Section 2.3 Registrar, Paying Agent and Depositary 24
Section 2.4 Paying Agent to Hold Money in Trust 25
Section 2.5 Holder Lists 25
Section 2.6 Transfer and Exchange 25
Section 2.7 Replacement Notes 37
Section 2.8 Outstanding Notes 37
Section 2.9 Treasury Notes 38
Section 2.10 Temporary Notes 38
Section 2.11 Cancellation 38
Section 2.12 Defaulted Interest 38
Section 2.13 CUSIP Numbers 39
ARTICLE IIIREDEMPTION 39
Section 3.1 Notices to Trustee 39
Section 3.2 Selection of Notes to be Redeemed 39
Section 3.3 Notice of Redemption 40
Section 3.4 Effect of Notice of Redemption 40
Section 3.5 Deposit of Redemption Price 40
Section 3.6 Notes Redeemed in Part 41
Section 3.7 Optional Redemption 41
ARTICLE IVCOVENANTS 42
Section 4.1 Payment of Notes 42
Section 4.2 Maintenance of Office or Agency 42
Section 4.3 SEC Reports and Reports to Holders 43
Section 4.4 Compliance Certificate 43
Section 4.5 Taxes 44
Section 4.6 Stay, Extension and Usury Laws 44
Section 4.7Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock 44
Section 4.8 Limitation on Liens 47
Section 4.9 Limitations on Restricted Payments 47
Section 4.10Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries 49
Section 4.11 Limitation on Transactions with Affiliates 50
Section 4.12Limitation on Sale of Assets and Subsidiary Stock 50
Section 4.13Repurchase of Notes at the Option of the Holder upon
a Change of Control 53
Section 4.14 Limitation on Layering Indebtedness 55
Section 4.15 Consolidation of Genetic Systems 55
Section 4.16 Limitation on Status as Investment Company 55
Section 4.17 Corporate Existence 55
i
ARTICLE VSUCCESSORS 56
Section 5.1 Merger, Consolidation or Sale of Assets. 56
Section 5.2 Successor Corporation Substituted 56
ARTICLE VIDEFAULTS AND REMEDIES 57
Section 6.1 Events of Default. 57
Section 6.2 Acceleration 58
Section 6.3 Other Remedies 59
Section 6.4 Waiver of Past Defaults 59
Section 6.5 Control by Majority 60
Section 6.6 Limitation on Suits 60
Section 6.7 Rights of Holders of Notes to Receive Payment 60
Section 6.8 Collection Suit by Trustee 60
Section 6.9 Trustee May File Proofs of Claim 61
Section 6.10 Priorities 61
Section 6.11 Undertaking for Costs. 62
ARTICLE VIITRUSTEE 62
Section 7.1 Duties of Trustee. 62
Section 7.2 Rights of Trustee. 63
Section 7.3 Individual Rights of Trustee. 64
Section 7.4 Trustee's Disclaimer. 64
Section 7.5 Notice of Defaults Agreement 64
Section 7.6 Reports by Trustee to Holders of the Notes 64
Section 7.7 Compensation and Indemnity 64
Section 7.8 Replacement of Trustee 65
Section 7.9 Successor Trustee by Merger, etc. 66
Section 7.10 Eligibility; Disqualification 66
Section 7.11Preferential Collection of Claims against Company 67
ARTICLE VIIILEGAL DEFEASANCE AND COVENANT DEFEASANCE 67
Section 8.1Option to Effect Legal Defeasance or Covenant
Defeasance. 67
Section 8.2 Legal Defeasance and Discharge. 67
Section 8.3 Covenant Defeasance 67
Section 8.4 Conditions to Legal or Covenant Defeasance 68
Section 8.5Deposited Money and Government Securities to be Held
in Trust;Other Miscellaneous Provisions. 69
Section 8.6 Repayment to Company 69
Section 8.7 Reinstatement 70
Section 8.8 Satisfaction and Discharge 70
ARTICLE IXAMENDMENT, SUPPLEMENT AND WAIVER 71
Section 9.1 Without Consent of Holders of Notes. 71
Section 9.2 With Consent of Holders of Notes 71
Section 9.3 Compliance with Trust Indenture Act 73
Section 9.4 Revocation and Effect of Consents 73
Section 9.5 Notation on or Exchange of Notes 73
Section 9.6 Trustee to Sign Amendments, etc. 73
ARTICLE XGUARANTEES 74
Section 10.1 Guarantees 74
ii
Section 10.2 Execution and Delivery of Guarantees 75
Section 10.3Guarantors May Consolidate, etc., on Certain Terms 75
Section 10.4 Future Guarantors 76
Section 10.5 Release of Guarantors 76
Section 10.6Limitation of Guarantor's Liability;
Certain Bankruptcy Events. 77
Section 10.7Application of Certain Terms and Provisions to the
Guarantors 77
Section 10.8 Subordination of Guarantees 78
ARTICLE XISUBORDINATION 78
Section 11.1 Notes Subordinate to Senior Debt 78
Section 11.2 No Payment on Notes in Certain Circumstances 79
Section 11.3Notes Subordinate to Prior Payment of All Senior
Debt on Dissolution, Liquidation or Reorganization 80
Section 11.4Holders to be Subrogated to Rights of Holders of
Senior Debt 80
Section 11.5Obligations of the Company and the Guarantors
Unconditional. 80
Section 11.6Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice 81
Section 11.7Application by Trustee of Assets Deposited with It 81
Section 11.8Subordination Rights Not Impaired by Acts or
Omissions of the Company, the Guarantors or
Holders of Senior Debt. 82
Section 11.9Holders Authorize Trustee To Effectuate
Subordination of Notes 82
Section 11.10 Rights of Trustee to Hold Senior Debt 83
Section 11.11 Article XI Not to Prevent Events of Default 83
Section 11.12No Fiduciary Duty of Trustee to Holders of Senior
Debt 83
Section 11.13 Notice by Company 83
ARTICLE XIIMISCELLANEOUS 83
Section 12.1 Trust Indenture Act Controls 83
Section 12.2 Notices 83
Section 12.3Communication by Holders of Notes with Other
Holders of Notes. 85
Section 12.4Certificate and Opinion as to Conditions Precedent 85
Section 12.5 Statements Required in Certificate or Opinion 85
Section 12.6 Rules by Trustee and Agents. 85
Section 12.7No Personal Liability of Directors, Officers,
Employees and Stockholders 85
Section 12.8 Governing Law. 86
Section 12.9 No Adverse Interpretation of Other Agreements. 86
Section 12.10 Successors. 86
Section 12.11 Severability. 86
Section 12.12 Counterpart Originals. 87
Section 12.13 Table of Contents, Headings, etc. 87
EXHIBIT A
FORM OF NOTE A-1
EXHIBIT BFORM OF CERTIFICATE OF TRANSFER B-1
EXHIBIT CFORM OF CERTIFICATE OF EXCHANGE C-1
EXHIBIT DFORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR D-1
EXHIBIT EFORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY
SUBSIDIARY GUARANTORS E-1
iii
CROSS-REFERENCE TABLE*
TIA Section Indenture Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.8; 7.10
(b) 7.8; 7.10; 12.2
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 12.3
(c) 12.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6; 12.2
(d) 7.6
314(a) 4.3; 4.4; 12.2
(b) N.A.
(c)(1) 12.4
(c)(2) 12.4
(c)(3) N.A.
(d) N.A.
(e) 12.5
(f) N.A.
315(a) 7.1(b)
(b) 7.5; 12.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.11
316(a)(last sentence) 2.9
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) N.A.
(b) 6.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
318(a) 12.1
(c) 12.1
______________________________
N.A. means not applicable
*This Cross-Reference table shall not, for any purpose, be deemed
to be part of this Indenture.
INDENTURE, dated as of February 17, 2000, between Bio-
Rad Laboratories, Inc., a Delaware corporation (the "Company"),
and Norwest Bank Minnesota, N.A., as trustee (the "Trustee").
The Company and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of
the Holders of the 11-5/8% Series A Senior Subordinated Notes due
2007 (the "Series A Notes") and the 11_% Series B Senior
Subordinated Notes due 2007 (the "Series B Notes" and, together
with the Series A Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"144A Global Note" means one or more Global Notes bearing
the Private Placement Legend, that will be issued in an aggregate
amount of denominations equal in total to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Accrued Bankruptcy Interest" means, with respect to any
Indebtedness, all interest accruing thereon after the filing of a
petition by or against the Company or any of its Subsidiaries
under any Bankruptcy Law, in accordance with and at the rate
(including any rate applicable upon any default or event of
default, to the extent lawful) specified in the documents
evidencing or governing such Indebtedness, whether or not the
claim for such interest is allowed as a claim after such filing
in any proceeding under such Bankruptcy Law.
''Acquired Indebtedness'' means Indebtedness (including
Disqualified Capital Stock) of any Person existing at the time
such Person becomes a Subsidiary of the Company, including by
designation, or is merged or consolidated into or with the
Company or one of its Subsidiaries.
''Acquisition'' means the purchase or other acquisition of
any Person or all or substantially all the assets of any Person
by any other Person, whether by purchase, merger, consolidation,
or other transfer, and whether or not for consideration.
''Affiliate'' means any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company. For purposes of this definition, the
term ''control'' means the power to direct the management and
policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting
securities, by contract, or otherwise; provided, that with
respect to ownership interests in the Company and its
Subsidiaries, a Beneficial Owner of 10% or more of the total
voting power normally entitled to vote in the election of
directors, managers or trustees, as applicable, shall for such
purposes be deemed to constitute control. Notwithstanding the
foregoing, Affiliate shall not include Wholly Owned Subsidiaries
that are Guarantors.
"Agent" means any Registrar, Paying Agent or co-registrar.
''Applicable Premium'' means, with respect to any Note on
any Redemption Date, the greater of:
(a) 1.0% of the principal amount of the Note; or
(b) the excess of:
(i) the present value at such Redemption Date of
(A) the redemption price of the Note at February 15,
2004 (such redemption price being stated in the table
appearing in Section 3.7 plus (B) all required interest
payments due on the Note through February 15,
2004, computed using a discount rate equal to the Treasury
Rate as of such Redemption Date plus 75 basis points;
over
(ii) the principal amount of the Note.
"Applicable Procedures" means, with respect to any transfer
or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary, Euroclear and Cedel
that apply to such transfer or exchange at the relevant time.
''Average Life'' means, as of the date of determination,
with respect to any security or instrument, the quotient obtained
by dividing (a) the sum of the products (i) of the number of
years from the date of determination to the date or dates of each
successive scheduled principal (or redemption) payment of such
security or instrument and (ii) the amount of each such
respective principal (or redemption) payment by (b) the sum of
all such principal (or redemption) payments.
"Bankruptcy Code" means the United States Bankruptcy Code,
codified at 11 U.S.C. 101-1330, as amended.
''Beneficial Owner'' or ''beneficial owner'' for purposes of
the definition of Change of Control and Affiliate has the meaning
attributed to it in Rules 13d-3 and 13d-5 under the Exchange Act
(as in effect on the Issue Date), whether or not applicable,
except that a ''person'' shall be deemed to have ''beneficial
ownership'' of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time.
''Board of Directors'' means, with respect to any Person,
the board of directors of such Person or any committee of the
Board of Directors of such Person authorized, with respect to any
particular matter, to exercise the power of the board of
directors of such Person.
"Broker-Dealer" means any broker-dealer that receives
Exchange Notes for its own account in the Exchange Offer in
exchange for Notes that were acquired by such broker-dealer as a
result of market-making or other trading activities.
''Business Day'' means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York, New York are authorized or obligated by
law or executive order to close.
''Capital Contribution'' means any contribution to the
equity of the Company for which no consideration other than the
issuance of common stock with no redemption rights and no special
preferences, privileges or voting rights is given.
''Capitalized Lease Obligation'' means, as to any Person,
the obligations of such Person under a lease that are required to
be classified and accounted for as capital lease obligations
under GAAP and, for purposes of this definition, the amount of
such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with
GAAP.
''Capital Stock'' means, with respect to any corporation,
any and all shares, interests, rights to purchase (other than
convertible or exchangeable Indebtedness that is not itself
otherwise capital stock), warrants, options, participations or
other equivalents of or interests (however designated) in stock
issued by that corporation.
''Cash Equivalent'' means:
(a) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (provided, that the full faith and
credit of the United States of America is pledged in support
thereof) maturing within one year after the date of
acquisition;
(b) time deposits and certificates of deposit and
commercial paper issued by the parent corporation of any
domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 and a Thompson
Bank Watch rating of ''B'' or better maturing within one
year after the date of acquisition;
(c) commercial paper issued by others having the
highest rating obtainable from Standard & Poor's Corporation
or Moody's Investors Services, Inc.;
(d) repurchase obligations with a term of not more
than ten days for underlying securities of the types
described in clause (a) above entered into with any bank
meeting the qualifications specified in clause (b) above;
(e) marketable obligations issued by any state of the
United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing,
or payable at the demand of the holder thereof, within one
year from the date of acquisition thereof and, at the time
of acquisition, having one of the three highest ratings
obtainable from either Standard & Poor's Corporation or
Moody's Investors Services, Inc.; and
(f) investments in money market funds substantially
all of whose assets comprise securities of the types
described in clauses (a) through (e) above.
"Cedel" means Cedel Bank, S.A., or its successors.
''Change of Control'' means:
(a) any merger or consolidation of the Company with or
into any Person or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of
the assets of the Company, on a consolidated basis, in one
transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s),
either (i) any ''person'' or ''group'' (other than the
Excluded Persons) is or becomes the ''beneficial owner,''
directly or indirectly, of more than 40% of the Voting
Equity Interests of the transferee(s) or surviving entity or
entities, and the Excluded Persons shall cease to own
beneficially at least a greater percentage of the Voting
Equity Interests of the transferee(s) or surviving entity or
entities or (ii) the Excluded Persons shall cease to own
beneficially (A) 30% of the Voting Equity Interests of such
transferee(s) or surviving entity or entities or (B) a
greater percentage of the Voting Equity Interests of such
transferee(s) or surviving entity or entities than any other
person or group, which ever is less,
(b) any ''person'' or ''group'' (other than the
Excluded Persons) is or becomes the ''beneficial owner,''
directly or indirectly, of more than 40% of the Voting
Equity Interests of the Company, and the Excluded Persons
shall cease to own beneficially at least a greater
percentage of the Voting Equity Interests of the Company,
(c) the Continuing Directors cease for any reason to
constitute a majority of the Board of Directors of the
Company then in office, or
(d) the Company adopts a plan of liquidation or
dissolution.
As used in this definition, ''person'' or ''group''
has the meaning given by Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable.
''Consolidated Coverage Ratio'' of any Person on any date of
determination (the ''Transaction Date'') means the ratio, on a
pro forma basis, of
(a) the aggregate amount of Consolidated EBITDA of
such Person (exclusive of amounts attributable to operations
and businesses permanently discontinued or disposed of) for
the Reference Period to
(b) the aggregate Consolidated Fixed Charges of such
Person (exclusive of amounts attributable to operations and
businesses permanently discontinued or disposed of, but only
to the extent that the obligations giving rise to such
Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges
subsequent to the Transaction Date) during the Reference
Period;
provided, that for purposes of such calculation:
(i) Acquisitions which occurred during the
Reference Period or subsequent to the Reference Period
and on or prior to the Transaction Date shall be
assumed to have occurred on the first day of the
Reference Period,
(ii) transactions giving rise to the need to
calculate the Consolidated Coverage Ratio shall be
assumed to have occurred on the first day of the
Reference Period,
(iii) the incurrence of any Indebtedness
(including issuance of any Disqualified Capital Stock)
during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction
Date (and the application of the proceeds therefrom to
the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the
first day of the Reference Period, and
(iv) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or
dividends on any Disqualified Capital Stock bearing a
floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect
from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the
entire period, unless such Person or any of its
Subsidiaries is a party to an Interest Swap or Hedging
Obligation (which shall remain in effect for the 12-
month period immediately following the Transaction
Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate
(whether higher or lower) shall be used.
''Consolidated EBITDA'' means, with respect to any Person,
for any period, the Consolidated Net Income of such Person for
such period adjusted to add thereto (to the extent deducted from
net revenues in determining Consolidated Net Income), without
duplication, the sum of
(a) Consolidated income tax expense,
(b) Consolidated depreciation and amortization
expense,
(c) Consolidated Fixed Charges, and
(d) all other non-cash charges (excluding any such non-
cash charge to the extent that it represents an accrual of
or reserve for cash expenditures in any future period),
less the amount of all cash payments made by such Person or any
of its Subsidiaries during such period to the extent such
payments relate to non-cash charges that were added back in
determining Consolidated EBITDA for such period or any prior
period; provided, that consolidated income tax expense,
depreciation and amortization and Consolidated Fixed Charges of a
Subsidiary (i) that is a less than Wholly Owned Subsidiary shall
only be added to the extent and in the same proportions that the
net income of such Subsidiary was included in the calculation of
Consolidated Net Income of such Person and (ii) shall only be
added to the extent and in the same proportions that the
Consolidated EBITDA of such Subsidiary is permitted to be paid or
distributed as a dividend, advance, loan or other distribution to
such Person.
''Consolidated Fixed Charges'' of any Person means, for any
period, the aggregate amount (without duplication and determined
in each case in accordance with GAAP) of
(a) interest expensed or capitalized, paid, accrued,
or scheduled to be paid or accrued (including, in accordance
with the following sentence, interest attributable to
Capitalized Lease Obligations) of such Person and its
Consolidated Subsidiaries during such period, including (i)
original issue discount and non-cash interest payments or
accruals on any Indebtedness, (ii) the interest portion of
all deferred payment obligations, and (iii) all commissions,
discounts and other fees and charges owed with respect to
banker's acceptances and letters of credit financings and
currency and Interest Swap and Hedging Obligations, in each
case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or
guaranteed) by such Person or any of its Consolidated
Subsidiaries in respect of Preferred Stock (other than by
Subsidiaries of such Person to such Person or such Person's
Wholly Owned Subsidiaries).
For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined in good faith by such Person
to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by
such Person or a Subsidiary of such Person of an obligation of
another Person shall be deemed to be the interest expense
attributable to the Indebtedness guaranteed.
''Consolidated Net Income'' means, with respect to any
Person for any period, the net income (or loss) of such Person
and its Consolidated Subsidiaries (determined on a consolidated
basis in accordance with GAAP) for such period, adjusted to
exclude (only to the extent included in computing such net income
(or loss) and without duplication):
(a) all gains or losses which are extraordinary (as
determined in accordance with GAAP) (including any gain from
the sale or other disposition of assets outside the ordinary
course of business or from the issuance or sale of any
capital stock),
(b) the net income, if positive, of any Person, other
than a Consolidated Subsidiary, in which such Person or any
of its Consolidated Subsidiaries has an interest, except to
the extent of the amount of any dividends or distributions
actually paid in cash to such Person or a Consolidated
Subsidiary of such Person during such period, but in any
case not in excess of such Person's pro rata share of such
Person's net income for such period,
(c) the net income or loss of any Person acquired in a
pooling of interests transaction for any period prior to the
date of such acquisition,
(d) the net income, if positive, of any of such
Person's Consolidated Subsidiaries to the extent that the
declaration or payment of dividends or similar distributions
is not at the time permitted by operation of the terms of
its charter or bylaws or any other agreement, instrument,
judgment, decree, order, statute, rule or governmental
regulation applicable to such Consolidated Subsidiary, and
(e) the net income of, and all dividends and
distributions from, any Unrestricted Subsidiary.
''Consolidated Net Worth'' of any Person at any date means
the aggregate consolidated stockholders' equity of such Person
(plus amounts of equity attributable to preferred stock) as would
be shown on the consolidated balance sheet of such Person
prepared in accordance with GAAP, adjusted to exclude (to the
extent included in calculating such equity), (a) the amount of
any such stockholders' equity attributable to Disqualified
Capital Stock or treasury stock of such Person and its
Consolidated Subsidiaries, (b) all upward revaluations and other
write-ups in the book value of any asset of such Person or a
Consolidated Subsidiary of such Person subsequent to the Issue
Date, and (c) all investments in subsidiaries that are not
Consolidated Subsidiaries and in Persons that are not
Subsidiaries.
''Consolidated Subsidiary'' means, for any Person, each
Subsidiary of such Person (whether now existing or hereafter
created or acquired) the financial statements of which are
consolidated for financial statement reporting purposes with the
financial statements of such Person in accordance with GAAP.
"Consolidation" means the consolidation of the accounts of
the Company with the accounts of its Subsidiaries, all in
accordance with GAAP; provided, that ''consolidation'' will not
include consolidation of the accounts of any Unrestricted
Subsidiary with the accounts of the Company. The term
''consolidated'' has a correlative meaning to the foregoing.
''Continuing Director'' means during any period of 12
consecutive months after the Issue Date, individuals who at the
beginning of any such 12-month period constituted the Board of
Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a
vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose
election or nomination for election was previously so approved,
including new directors designated in or provided for in an
agreement regarding the merger, consolidation or sale, transfer
or other conveyance, of all or substantially all of the assets of
the Company, if such agreement was approved by a vote of such
majority of directors).
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 12.2 or such other address as to
which the Trustee may give notice to the Company; provided, that
for purposes of complying with Section 2.3 such address shall be
_ Norwest Bank Minnesota, N.A., 333 South Grand Avenue, Suite
740, Los Angeles, California 90071, Attention: Jeanie Mar. All
notices by the Company sent to the Trustee at its Corporate Trust
Office in the Borough of Manhattan, The City of New York shall
also be sent to the Trustee at the address set forth in Section
12.2.
''Credit Agreement'' means the Credit Agreement, dated as of
September 30, 1999, by and among the Company, certain of its
Subsidiaries, certain financial institutions and Bank One, NA, as
agent and representative, providing for (a) an aggregate
$100,000,000 term loan facility, and (b) an aggregate
$100,000,000 revolving credit facility, including any related
notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, as such credit
agreement and/or related documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time
to time whether or not with the same agent, trustee,
representative lenders or holders, and, subject to the proviso to
the next succeeding sentence, irrespective of any changes in the
terms and conditions thereof. Without limiting the generality of
the foregoing, the term ''Credit Agreement'' shall include
agreements in respect of Interest Swap and Hedging Obligations
with lenders party to the Credit Agreement or their affiliates
and shall also include any amendment, amendment and restatement,
renewal, extension,
restructuring, supplement or modification to
any Credit Agreement and all refundings, refinancings and
replacements of any Credit Agreement, including any agreement
(i) extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby,
(ii) adding or deleting borrowers or guarantors
thereunder, so long as borrowers and issuers include one or
more of the Company and its Subsidiaries and their
respective successors and assigns,
(iii) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder;
provided, that on the date such Indebtedness is incurred its
incurrence would not be prohibited by this Indenture, or
(iv) otherwise altering the terms and conditions
thereof in a manner not prohibited by the terms of this
Indenture.
"Default" means any event that is or with the passage of
time or the giving of notice or both would be an Event of
Default.
"Definitive Note" means one or more certificated Notes
registered in the name of the Holder thereof and issued in
accordance with Section 2.6, in the form of Exhibit A hereto
except that such Note shall not include the information called
for by footnotes 3, 4 and 5 thereof.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified
in Section 2.3 as the Depositary with respect to the Notes, until
a successor will have been appointed and become such pursuant to
the applicable provisions of this Indenture, and thereafter
"Depositary" will mean or include such successor.
''Designated Senior Debt'' means Senior Debt from time to
time outstanding under the Credit Agreement.
''Disqualified Capital Stock'' means, with respect to any
Person,
(a) Equity Interests of such Person that, by its terms
or by the terms of any security into which it is
convertible, exercisable or exchangeable, is, or upon the
happening of an event or the passage of time or both, would
be, required to be redeemed or repurchased (including at the
option of the holder thereof) by such Person or any of its
Subsidiaries, in whole or in part, on or prior to the Stated
Maturity of the Notes, and
(b) any Equity Interests of any Subsidiary of such
Person other than any common equity with no preferences,
privileges, and no redemption or repayment provisions.
"Distribution Compliance Period" means the 40-day restricted
period as defined in Regulation S.
"Equity Interests" means Capital Stock or partnership,
participation or membership interests and all warrants, options
or other rights to acquire Capital Stock or partnership,
participation or membership interests (but excluding any debt
security that is convertible into, or exchangeable for, Capital
Stock or partnership, participation or membership interests).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euroclear
system.
"Event of Loss" means, with respect to any property or
asset, any (a) loss, destruction or damage of such property or
asset or (b) any condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such property or
asset, or confiscation or requisition of the use of such property
or asset.
''Exchange Act'' means the Securities Exchange Act of 1934,
as amended.
"Exchange Notes" means Series B Notes issued pursuant to an
Exchange Offer.
"Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" shall have the
meaning set forth in the Registration Rights Agreement.
"Excluded Persons" means (a) David Schwartz, Alice Schwartz,
Norman D. Schwartz, Steven Schwartz, (b) any spouse, immediate
family member, relative or lineal descendant of any person
described in clause (a), (c) any trust in which any one or more
of the persons described in clause (a) or (b) holds all of the
beneficial interests, and (d) any Affiliate of the persons
described in clause (a) or (b).
''Exempted Affiliate Transaction'' means:
(a) customary employee compensation and benefit
arrangements approved by a majority of independent (as to
such transactions) members of the Board of Directors of the
Company,
(b) Restricted Payments, other than Investments,
permitted under Section 4.9,
(c) transactions solely between the Company and any
Guarantor, or solely among Guarantors,
(d) payment of reasonable directors' fees to persons
who are not otherwise Affiliates of the Company,
(e) sales of Equity Interests (other than Disqualified
Capital Stock) to Affiliates of the Company,
(f) performance of all agreements in existence on the
Issue Date and any modification thereto or any transaction
contemplated thereby in any replacement agreement therefor
so long as such modification or replacement is not more
disadvantageous to the Company, any of its Subsidiaries or
the Holders in any material respect than the original
agreement as in effect on the Issue Date,
(g) transactions with suppliers or vendors pursuant to
purchase orders executed in the ordinary course of business
consistent with past practice and
(h) transactions solely between the Company and any
Subsidiary or solely among Subsidiaries;
provided, that in the case of clauses (g) and (h) only, such
transactions are otherwise in compliance with Section 4.11
without giving effect to the application of clause (c) of Section
4.11.
''Existing Indebtedness'' means Indebtedness of the Company
and its Subsidiaries (other than
Indebtedness under the Credit
Agreement) in existence on the Issue Date immediately after
giving effect to the Transactions, reduced to the extent such
amounts are repaid, refinanced or retired.
''Foreign Subsidiary'' means any Subsidiary of the Company
which (a) is not organized under the laws of the United States,
any state thereof or the District of Columbia and (b) conducts
substantially all of its business operations outside the United
States of America.
''Foreign Subsidiary Credit Agreement'' means any credit
agreement or similar instrument, including, without limitation,
working capital or equipment purchase lines of credit, entered
into by any Foreign Subsidiary governing the terms of a bona fide
borrowing by such Foreign Subsidiary from (a) a third-party
financial institution that is primarily engaged in the business
of commercial banking or (b) a vendor or other provider of
financial accommodations in connection with the purchase of
equipment, in either case for valid business purposes, including
any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, as such may be
amended, restated, supplemented, renewed, replaced or otherwise
modified from time to time whether or not with the same agent,
trustee, representative lenders or holders, and, subject to the
proviso in clause (iii) of the next sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the
generality of the foregoing, the term ''Foreign Subsidiary Credit
Agreement'' shall include agreements in respect of Interest Swap
and Hedging Obligations with lenders party to a Foreign
Subsidiary Credit Agreement and shall also include any amendment,
amendment and restatement, renewal, extension, restructuring,
supplement or modification to any Foreign Subsidiary Credit
Agreement and all refundings, refinancings and replacements of
any Foreign Subsidiary Credit Agreement, including any agreement
(i) extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby,
(ii) adding or deleting borrowers or guarantors
thereunder, so long as borrowers and issuers include one or
more of the Foreign Subsidiaries and their respective
successors and assigns,
(iii) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder;
provided, that on the date such Indebtedness is incurred its
incurrence would not be prohibited by this Indenture, or
(iv) otherwise altering the terms and conditions
thereof in a manner not prohibited by the terms of this
Indenture.
"GAAP" means United States generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant
segment of the accounting profession in the United States as in
effect from time to time.
''Genetic Systems'' means Genetic Systems Corporation, a
Delaware corporation.
"Global Notes" means one or more Notes in the form of
Exhibit A hereto that includes the information referred to in
footnotes 3, 4 and 6 to the form of Note, attached hereto as
Exhibit A, issued under this Indenture, that is deposited with or
on behalf of and registered in the name of the Depositary or its
nominee.
"Global Note Legend" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Notes
issued under this Indenture.
"Governmental Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any
nature whatsoever of the United States or foreign government, any
state, province or any city or other political subdivision or
otherwise and whether now or hereafter in existence, or any
officer or official thereof, and any maritime authority.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in
respect thereof), of all or any part of any Indebtedness. When
used with respect to the Notes, a "Guarantee" means a guarantee
by the Guarantors of all or any part of the Notes, in accordance
with Article X.
"Guarantor" means each of the Subsidiaries of the Company
that in the future executes a Guarantee pursuant to and in
accordance with the requirements of this Indenture in which such
Subsidiary unconditionally guarantees on a senior subordinated
basis the obligations of the Company under the Notes and this
Indenture; provided, that any Person constituting a Guarantor as
described above shall cease to constitute a Guarantor when its
respective Guarantee is released in accordance with the terms of
this Indenture.
"Holder" means a Person in whose name a Note is registered
on the Registrar's books.
"Indebtedness"of any Person means, without duplication,
(a) all liabilities and obligations, contingent or
otherwise, of such Person, to the extent such liabilities
and obligations would appear as a liability upon the
consolidated balance sheet of such Person in accordance with
GAAP
(i) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof),
(ii) evidenced by bonds, notes, debentures or
similar instruments,
(iii) representing the balance deferred and
unpaid of the purchase price of any property or
services, except (other than accounts payable or other
obligations to trade creditors which have remained
unpaid for greater than 90 days past their original due
date) those incurred in the ordinary course of its
business that would constitute ordinarily a trade
payable to trade creditors,
(iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, or
(v) relating to any Capitalized Lease Obligation,
(b) all liabilities and obligations, contingent or
otherwise, of such Person evidenced by a letter of credit or
a reimbursement obligation of such Person with respect to
any letter of credit,
(c) all net obligations of such Person under Interest
Swap and Hedging Obligations,
(d) all liabilities and obligations of others of the
kind described in the preceding clause (a), (b) or (c) that
such Person has guaranteed or provided credit support or
that is otherwise its legal liability or which are secured
by any assets or property of such Person,
(e) any and all deferrals, renewals, extensions,
refinancing and refundings (whether
direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any
of the preceding clauses (a), (b), (c), (d), or this clause
(e), whether or not between or among the same parties,
(f) all Disqualified Capital Stock of such Person
(measured at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued and unpaid
dividends), and
(g) all obligations to purchase, redeem or acquire any
third-party Equity Interests.
For purposes hereof, the ''maximum fixed repurchase price''
of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms
of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture,
and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value
to be determined in good faith by the board of directors of the
issuer (or managing general partner of the issuer) of such
Disqualified Capital Stock.
The amount of any Indebtedness outstanding as of any date
shall be (x) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount, but the
accretion of original issue discount in accordance with the
original terms of Indebtedness issued with an original issue
discount will not be deemed to be an incurrence and (y) the
principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Indirect Participant" means an entity that, with respect to
DTC, clears through or maintains a direct or indirect, custodial
relationship with a Participant.
"Initial Purchasers" mean the initial purchasers of the
Series A Notes under the Purchase Agreement, dated February 14,
2000, among the Company and such purchasers relating to the
initial purchase and sale of the Series A Notes.
"Institutional Accredited Investor" means an institution
that is an "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, who is not also a QIB.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Interest Swap and Hedging Obligation" means any obligation
of any Person pursuant to any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement,
interest rate exchange agreement, currency exchange agreement or
any other agreement or arrangement designed to protect against
fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or
indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a fixed or
floating rate of interest on a stated notional amount in exchange
for periodic payments made by such Person calculated by applying
a fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means
(without duplication):
(a) the acquisition (whether by purchase, merger,
consolidation or otherwise) by such Person (whether for
cash, property, services, securities or otherwise) of Equity
Interests, bonds,
notes, debentures, partnership or other
ownership interests or other securities of such other Person
or any agreement to make any such acquisition;
(b) the making by such Person of any deposit with, or
advance, loan or other extension of credit to, such other
Person (including the purchase of property from another
Person subject to an understanding or agreement, contingent
or otherwise, to resell such property to such other Person)
or any written commitment to make any such advance, loan or
extension (but excluding accounts receivable, endorsements
for collection or deposits arising in the ordinary course of
business) within one year;
(c) other than guarantees of Indebtedness of the
Company or any Subsidiary to the extent permitted by Section
4.7, the entering into by such Person of any guarantee of,
or other credit support or contingent obligation with
respect to, Indebtedness or other liability of such other
Person;
(d) the making of any capital contribution (which
shall be deemed to include payment of consideration in
excess of fair market value of any assets received) by such
Person to such other Person; and
(e) the designation by the Board of Directors of the
Company of any Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an
amount equal to the fair market value of the net assets of any
subsidiary (or, if neither the Company nor any of its
Subsidiaries has theretofore made an Investment in such
subsidiary, in an amount equal to the Investments being made), at
the time that such subsidiary is designated an Unrestricted
Subsidiary, and any property transferred to an Unrestricted
Subsidiary from the Company or a Subsidiary of the Company shall
be deemed an Investment valued at its fair market value at the
time of such transfer. The fair market value of each Investment
shall be measured at the time made or returned, as applicable.
"Issue Date" means the date of first issuance of the Notes
under this Indenture.
''Junior Security'' means any Qualified Capital Stock and
any Indebtedness of the Company or a Subsidiary, as applicable,
that is contractually subordinated in right of payment to Senior
Debt at least to the same extent as the Notes, and has no
scheduled installment of principal due, by redemption, sinking
fund payment or otherwise, on or prior to the Stated Maturity of
the Notes; provided, that in the case of subordination in
respect of Designated Senior Debt, ''Junior Security'' shall mean
any Qualified Capital Stock and any Indebtedness of the Company
or the Subsidiary that
(a) has a final maturity date occurring after the
final maturity date of all Designated Senior Debt on the
date of issuance of such Qualified Capital Stock or
Indebtedness,
(b) is unsecured,
(c) has an Average Life longer than the security for
which such Qualified Capital Stock or Indebtedness is being
exchanged, and
(d) by their terms or by law are subordinated to
Designated Senior Debt on the date of issuance of such
Qualified Capital Stock or Indebtedness at least to the same
extent as the Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, or the city in
which the Corporate Trust Office of the Trustee is located, or at
a place of payment, are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal
Holiday,
payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
"Letter of Transmittal" means the letter of transmittal to
be prepared by the Company and sent to all Holders of the Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means any mortgage, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation or
other encumbrance upon or with respect to any property of any
kind, real or personal, movable or immovable, now owned or
hereafter acquired.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
''Material Domestic Subsidiary'' means any Subsidiary (other
than a Foreign Subsidiary) that is a Significant Subsidiary or
any group of Subsidiaries (other than Foreign Subsidiaries) that
on a combined basis would constitute a Significant Subsidiary.
"Net Cash Proceeds" means the aggregate amount of cash or
Cash Equivalents received by the Company in the case of a sale of
Qualified Capital Stock or a Capital Contribution and by the
Company and its Subsidiaries in respect of an Asset Sale plus, in
the case of an issuance of Qualified Capital Stock upon any
exercise, exchange or conversion of securities of the Company
(including options, warrants, rights and convertible or
exchangeable debt) that were issued for cash on or after the
Issue Date, the amount of cash originally received by the Company
upon the issuance of such securities (including options,
warrants, rights and convertible or exchangeable debt) less, in
each case, the sum of all payments, fees, commissions and (in the
case of Asset Sales, reasonable and customary), expenses
(including, without limitation, the fees and expenses of legal
counsel and investment banking fees and expenses) incurred in
connection with such Asset Sale, sale of Qualified Capital Stock
or Capital Contribution, and, in the case of an Asset Sale only,
less the amount (estimated reasonably and in good faith by the
Company) of income, franchise, sales and other applicable taxes
required to be paid by the Company or any of its Subsidiaries in
connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable
year, the computation of which shall take into account the
reduction in tax liability resulting from any available operating
losses and net operating loss carryovers, tax credits and tax
credit carryforwards, and similar tax attributes.
"Non-Recourse Indebtedness" means Indebtedness of a Person
as to which neither the Company nor any Subsidiary provides any
guarantee, collateral or other credit support of any kind
whatsoever.
"Notes Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligation" means any principal, premium or interest
payment, or monetary penalty, or damages, due by the Company or
any Guarantor under the terms of the Notes or this Indenture,
including any Liquidated Damages due pursuant to the terms of the
Registration Rights Agreement.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any
Assistant Secretary or any Vice President of such Person.
"Officers' Certificate" means an officers' certificate to be
delivered upon the occurrence of certain events as set forth in
this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the
requirements of Sections 12.4 and 12.5. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the
Company.
"Participant" means, with respect to the Depositary,
Euroclear or Cedel, a Person who has an account with the
Depositary, Euroclear or Cedel, respectively (and, with respect
to The Depository Trust Company, shall include Euroclear and
Cedel).
''Permitted Investment'' means:
(a) any Investment in the Company or any Subsidiary;
provided, that Investments by the Company or any Guarantor
in Subsidiaries of the Company (other than Guarantors) shall
be limited to $15,000,000 in the aggregate, subject to
clause (d) below;
(b) any Investment in Cash Equivalents;
(c) intercompany notes to the extent permitted under
Section 4.7;
(d) any Investment by the Company or any Subsidiary of
the Company in a Person in a Related Business if as a result
of such Investment such Person immediately becomes a
Subsidiary of the Company or such Person is immediately
merged with or into the Company or a Subsidiary of the
Company; provided, that Investments by the Company or any
Guarantor under this clause (d) shall be subject to and
reduce dollar for dollar the amount of Investments in
Subsidiaries that may be made under clause (a) above,
unless, as a result of such Investment, such Person
immediately becomes a Guarantor or is immediately merged
with or into the Company or a Guarantor, in which case such
Investment shall not reduce the amount available under
clause (a);
(e) other Investments in any Person or Persons;
provided, that after giving pro forma effect to each such
Investment, the aggregate amount of all such Investments
made on and after the Issue Date pursuant to this clause (e)
that are outstanding (after giving effect to any such
Investments that are returned to the Company or any
Subsidiary of the Company that made such prior Investment,
without restriction, in cash on or prior to the date of any
such calculation, but only up to the amount of the
Investment made under this clause (e) in such Person) at any
time does not in the aggregate exceed $10,000,000 (measured
by the value attributed to the Investment at the time made);
(f) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that complies with
Section 4.12;
(g) any acquisition of assets solely in exchange for
the issuance of the Equity Interests of the Company (other
than Disqualified Capital Stock);
(h) any Investment in connection with Interest Swap
and Hedging Obligations otherwise permitted under this
Indenture;
(i) any Investment received (i) in satisfaction of
judgments or (ii) as payment on a claim made in connection
with any bankruptcy, liquidation, receivership or other
insolvency proceeding; and
(j) Investments in a Person or Persons existing on the
Issue Date, plus additional Investments in such Person or
Persons made on or after the Issue Date in an aggregate
amount not to exceed at any time outstanding $10,000,000.
"Permitted Liens" means:
(a) Liens existing on the Issue Date, immediately
after giving effect to the Transactions;
(b) Liens imposed by governmental authorities for
taxes, assessments or other charges not yet subject to
penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books and records of the
Company in accordance with GAAP;
(c) statutory liens of carriers, warehousemen,
mechanics, material men, landlords, repairmen or other like
Liens arising by operation of law in the ordinary course of
business; provided, that (i) the underlying obligations are
not overdue for a period of more than 30 days, or (ii) such
Liens are being contested in good faith and by appropriate
proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with
GAAP;
(d) Liens securing the Notes and the Exchange Notes;
(e) Liens securing Indebtedness of a Person existing
at the time such Person becomes a Subsidiary of the Company
or is merged with or into the Company or one of its
Subsidiaries or Liens securing Indebtedness incurred in
connection with an Acquisition; provided, that such Liens
were in existence prior to the date of such acquisition,
merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets;
(f) Liens arising from Purchase Money Indebtedness
permitted to be incurred pursuant to this Indenture;
provided, that such Liens relate solely to the property
which is subject to such Purchase Money Indebtedness;
(g) Liens arising from precautionary Uniform
Commercial Code financing statement filings regarding
operating leases entered into by the Company or any of its
Subsidiaries in the ordinary course of business;
(h) Liens securing Refinancing Indebtedness incurred
to refinance any Indebtedness that was previously so secured
in a manner no more adverse to the Holders than the terms of
the Liens securing such refinanced Indebtedness; provided,
that the Indebtedness secured is not increased and the Lien
is not extended to any additional assets or property that
would not have been security for the Indebtedness
refinanced;
(i) Liens securing Indebtedness under the Credit
Agreement incurred in accordance with the terms of this
Indenture;
(j) Liens securing Indebtedness of any Foreign
Subsidiary incurred in accordance with the terms of this
Indenture;
(k) Liens in favor of the Company or any Guarantor;
(l) Liens securing reimbursement obligations with
respect to commercial letters of credit which solely
encumber documents and other property relating to such
letters of credit and products and proceeds thereof;
(m) Liens securing other Indebtedness not exceeding
$10,000,000 at any time outstanding; and
(n) Liens on the Equity Interests of Unrestricted
Subsidiaries securing obligations of Unrestricted
Subsidiaries to the extent permitted by the terms of this
Indenture.
''Person'' or ''person'' means any corporation, individual,
limited liability company, joint stock company, joint venture,
partnership, limited liability partnership, unincorporated
association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other
entity.
"Preferred Stock" means any Equity Interest of any class or
classes of a Person (however designated) which is preferred as to
payments of dividends, or as to distributions upon any
liquidation or dissolution, over Equity Interests of any other
class of such Person.
"Private Placement Legend" means the legend set forth in
Section 2.6(g)(i) to be placed on all Notes issued under this
Indenture except where specifically stated otherwise by the
provisions of this Indenture.
"Pro Forma" or "pro forma" shall have the meaning set forth
in Regulation S-X of the Securities Act of 1933, as amended,
unless otherwise specifically stated herein.
"Purchase Money Indebtedness" of any Person means any
Indebtedness of such Person to any seller or other Person
incurred solely to finance the acquisition (including in the case
of a Capitalized Lease Obligation, the lease), construction,
installation or improvement of any after acquired real or
personal tangible property which, is directly related to a
Related Business of the Company and which is incurred
concurrently with (or within 180 days following) such
acquisition, construction, installation or improvement and is
secured only by the assets so financed.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Capital Stock" means any of the Capital Stock of
the Company that is not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement,
repurchase or other acquisition of Capital Stock of the
Company or Indebtedness of the Company issued on or after
the Issue Date with the Net Cash Proceeds received by the
Company from the substantially concurrent sale of Qualified
Capital Stock of the Company or, to the extent used to
retire the Indebtedness of the Company (other than
Disqualified Capital Stock) issued on or after the Issue
Date, Subordinated Indebtedness of the Company;
(b) any issuance of Qualified Capital Stock of the
Company in exchange for any of the Capital Stock of the
Company or Indebtedness issued on or after the Issue Date;
or
(c) any exchange of Subordinated Indebtedness of the
Company for Subordinated Indebtedness of the Company issued
on or after the Issue Date.
"Record Date" means a Record Date specified in the Notes,
whether or not such date is a Business Day.
"Reference Period" with regard to any Person means the four
full fiscal quarters (or such lesser period during which such
Person has been in existence) ended immediately preceding any
date upon which any determination is to be made pursuant to the
terms of the Notes or this Indenture.
"Refinancing Indebtedness" means Indebtedness or
Disqualified Capital Stock
(a) issued in exchange for, or the proceeds from the
issuance and sale of which are used substantially
concurrently to repay, redeem, defease, refund, refinance,
discharge or otherwise retire for value, in whole or in
part, or
(b) constituting an amendment, modification or
supplement to, or a deferral or renewal of (clauses (a) and
(b) above are, collectively, a ''Refinancing''), any
Indebtedness (including Disqualified Capital Stock) in a
principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing plus the amount
of any premium paid in connection with such Refinancing in
accordance with the terms of the documents governing the
Indebtedness refinanced without giving effect to any
modification thereof made in connection with or in
contemplation of such refinancing) the lesser of
(a) the principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, of the
Indebtedness (including Disqualified Capital Stock) so
Refinanced and
(b) if such Indebtedness being Refinanced was issued
with an original issue discount, the accreted value thereof
(as determined in accordance with GAAP) at the time of such
Refinancing;
provided, that:
(i) such Refinancing Indebtedness shall only be used
to refinance outstanding Indebtedness (including
Disqualified Capital Stock) of such Person issuing such
Refinancing Indebtedness,
(ii) such Refinancing Indebtedness shall (A) not have
an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refinanced at the time
of such Refinancing and (B) in all respects, be no less
contractually subordinated or junior, if applicable, to the
rights of Holders than was the Indebtedness (including
Disqualified Capital Stock) to be refinanced,
(iii) such Refinancing Indebtedness shall have a
final stated maturity or redemption date, as applicable, no
earlier than the final stated maturity or redemption date,
as applicable, of the Indebtedness (including Disqualified
Capital Stock) to be so refinanced or, if sooner, 91 days
after the Stated Maturity of the Notes, and
(iv) such Refinancing Indebtedness shall be secured (if
secured) in a manner no more adverse to the Holders than the
terms of the Liens (if any) securing such refinanced
Indebtedness, including, without limitation, the amount of
Indebtedness secured shall not be increased.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of the Issue Date, by and among the
Company and the Initial Purchasers, as such agreement may be
amended, modified or supplemented from time to time.
"Reg S Permanent Global Note" means one or more permanent
Global Notes bearing the Private Placement Legend, that will be
issued in an aggregate amount of denominations equal in total to
the outstanding principal amount of the Reg S Temporary Global
Note upon expiration of the Distribution Compliance Period.
"Reg S Temporary Global Note" means one or more temporary
Global Notes bearing the Private Placement Legend and the Reg S
Temporary Global Note Legend, issued in an aggregate amount of
denominations equal in total to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation
S.
"Reg S Temporary Global Note Legend" means the legend set
forth in Section 2.6(g)(iii), which is required to be placed on
all Reg S Temporary Global Notes issued under this Indenture.
"Regulation S" means Regulation S promulgated under the
Securities Act, as it may be amended from time to time, and any
successor provision thereto.
"Regulation S Global Note" means a Reg S Temporary Global
Note or a Reg S Permanent Global Note, as the case may be.
"Related Business" means the business conducted (or proposed
to be conducted) by the Company and its Subsidiaries as of the
Issue Date and any and all businesses that in the good faith
judgment of the Board of Directors of the Company are materially
related businesses.
"Representative" means the indenture trustee or other
trustee, agent or representative for any Senior Debt.
"Restricted Definitive Note" means one or more Definitive
Notes bearing the Private Placement Legend, issued under this
Indenture.
"Restricted Global Note" means one or more Global Notes
bearing the Private Placement Legend, issued under this
Indenture; provided, that in no case shall an Exchange Note
issued in accordance with this Indenture and the terms of the
Registration Rights Agreement be a Restricted Global Note.
"Restricted Investment" means in one or a series of related
transactions, any Investment other than Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or
other distribution in respect of Equity Interests of such
Person or any parent or Subsidiary of such Person;
(b) any payment on account of the purchase, redemption
or other acquisition or retirement for value of Equity
Interests of such Person or any Subsidiary or parent of such
Person;
(c) other than with the proceeds from the
substantially concurrent sale of, or in exchange for,
Refinancing Indebtedness any purchase, redemption, or other
acquisition or retirement for value of, any payment in
respect of any amendment of the terms of or any defeasance
of, any Subordinated Indebtedness (other than the Notes),
directly or indirectly, by such Person or a parent or
Subsidiary of such Person prior to the scheduled maturity,
any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness; and
(d) any Restricted Investment by such Person;
provided, however, that the term ''Restricted Payment'' does not
include:
(i) any dividend, distribution or other payment on or
with respect to Equity Interests of an issuer to the extent
payable solely in shares of Qualified Capital Stock of such
issuer, or
(ii) any dividend, distribution or other payment to the
Company, or to any Subsidiary of the Company, by the Company
or any of its Subsidiaries.
"Rule 144A" means Rule 144A promulgated under the Securities
Act, as it may be amended from time to time, and any successor
provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor agency.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"Securities Intermediary" means U.S. Trust Company, National
Association, as securities intermediary under the Security
Agreement.
"Senior Debt" with respect to the Company or any Guarantor,
means Indebtedness of the Company (including any monetary
obligation in respect of the Credit Agreement, and any Accrued
Bankruptcy Interest incurred pursuant to the Credit Agreement in
any proceeding under any Bankruptcy Law) arising under the Credit
Agreement or any Guarantee thereof or that is permitted to be
incurred under the terms of this Indenture unless the terms of
the instrument creating or evidencing such Indebtedness expressly
provide that it is on a parity with or subordinated in right of
payment to the Notes; provided, that in no event shall Senior
Debt include:
(a) Indebtedness of the Company to any Subsidiary of
the Company or any officer, director or employee of the
Company or any of its Subsidiaries or any other Affiliate,
(b) Indebtedness incurred in violation of the terms of
this Indenture,
(c) Indebtedness to trade creditors,
(d) Disqualified Capital Stock,
(e) Capitalized Lease Obligations, and
(f) any liability for taxes owed or owing by the
Company or any Guarantor.
"Shelf Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Significant Subsidiary" shall have the meaning provided
under Regulation S-X of the Securities Act, as in effect on the
Issue Date, except that all references to "10%" in such
Regulation shall be deemed to be references to "5%" for purposes
of this definition.
"Special Record Date" means, for payment of any Defaulted
Interest, a date fixed by the Paying Agent pursuant to Section
2.12.
"Stated Maturity" or "stated maturity" means, (a) with
respect to any debt security, the date specified in such debt
security as the fixed date on which the final installment of
principal of such debt security is due and payable (which shall
mean February 15, 2007 with respect to the Notes) and (b) with
respect to any scheduled installment of principal of or interest
on any debt security, the date specified in such debt security as
the fixed date on which such installment is due and payable.
"Subordinated Indebtedness" means Indebtedness of the
Company that is subordinated in right of payment by its terms or
the terms of any document or instrument relating thereto to the
Notes.
"Subsidiary," with respect to any Person, means:
(a) a corporation a majority of whose Equity Interests
with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by
such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person,
(b) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries of such Person,
or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof
has at least majority ownership interest, or
(c) a partnership in which such Person or a Subsidiary
of such Person is, at the time, a general partner and in
which such Person, directly or indirectly, at the date of
determination thereof has at least a majority ownership
interest.
Notwithstanding the foregoing, an Unrestricted Subsidiary
shall not be a ''Subsidiary'' of the Company or a ''Subsidiary''
of any of the Subsidiaries of the Company. Unless the context
requires otherwise, Subsidiary means each direct and indirect
Subsidiary of the Company.
"Transactions" means the Acquisition, entering into the
senior subordinated credit facility with Banc One Capital
Markets, Inc. and entering into the Credit Agreement.
"Transfer Restricted Notes" means Global Notes and
Definitive Notes that bear or are required to bear the Private
Placement Legend, issued under this Indenture.
''Treasury Rate'' means, as of any Redemption Date, the
yield to maturity as of that Redemption Date of United States
Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two
Business Days before the Redemption Date (or, if that Statistical
Release is no longer published, any publicly available source of
similar market date)) most nearly equal to the period from the
Redemption Date to February 15, 2004; provided, however, that if
the period from the Redemption Date to February 15, 2004 is less
than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one
year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means such successor
serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private
Placement Legend, issued under this Indenture.
"Unrestricted Global Note" means one or more permanent
Global Notes representing a series of Notes that does not bear
and is not required to bear the Private Placement Legend, issued
under this Indenture.
"Unrestricted Subsidiary" means any subsidiary of the
Company that does not own any Capital Stock of, or own or hold
any Lien on any property of, the Company or any of its
Subsidiaries and that, at the time of determination, shall be an
Unrestricted Subsidiary (as designated by the Board of Directors
of the Company); provided, that such subsidiary at the time of
such designation
(a) has no Indebtedness other than Non-Recourse
Indebtedness,
(b) is not party to any agreement, contract,
arrangement or understanding with the Company or any of its
Subsidiaries unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable
to the Company or such Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of
the Company,
(c) is a Person with respect to which neither the
Company nor any of its Subsidiaries has any direct or
indirect obligation (i) to subscribe for additional Equity
Interests or (ii) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any
specified levels of operating results, and
(d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of
the Company or any of its Subsidiaries, other than
Guarantees of the Notes.
The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Subsidiary; provided, that (x)
no Default or Event of Default is existing or will occur as a
consequence thereof and (y) immediately after giving effect to
such designation, on a pro forma basis, the Company could incur
at least $1.00 of Indebtedness pursuant to the Debt Incurrence
Ratio set forth in Section 4.7. Each such designation shall be
evidenced by filing with the Trustee a certified copy of the
resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the
United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of
America is pledged.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Voting Equity Interests" means Equity Interests which at
the time are entitled to vote in the election of, as applicable,
directors, members or partners generally.
"Wholly Owned Subsidiary" means a Subsidiary all the Equity
Interests of which (other than directors' qualifying Shares) are
owned by the Company and/or one or more of its Wholly Owned
Subsidiaries.
Section 1.2 Other Definitions.
Term Defined in
Section
"Affiliate Transaction" 4.11
"Asset Sale" 4.12
"Asset Sale Offer" 4.12
"Asset Sale Offer Amount" 4.12
"Asset Sale Offer Period" 4.12
"Asset Sale Offer Price" 4.12
"Authentication Order" 2.2
"Bankruptcy Law" 6.1
"Benefitted Party" 10.1
"Change of Control Offer" 4.13
"Change of Control Offer 4.13
Period"
"Change of Control Purchase 4.13
Date"
"Change of Control Purchase 4.13
Price"
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Debt Incurrence Ratio" 4.7
"Defaulted Interest" 2.12
"Designation Date" 4.9
"DTC" 2.3
"Excess Proceeds" 4.12
"Guarantee Obligations" 10.1
"incur" or "incurrence" 4.7
"Incurrence Date" 4.7
"Investment Company Act" 4.16
"Legal Defeasance" 8.2
"Non-payment Default" 11.2
"Paying Agent" 2.3
"Payment Blockage Period" 11.2
"Payment Default" 11.2
"Payment Notice" 11.2
"Registrar" 2.3
"Redemption Date" 3.7
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of
this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company, each Guarantor and
any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined
by SEC rule under the TIA have the meanings so assigned to them.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(7) references to sections of or rules under the Securities Act
and the Exchange Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC
from time to time; and
(8) unless otherwise required by the context, references to
"Section" or "Article" are references to a Section or Article of
this Indenture.
ARTICLE II
THE NOTES
Section 1.5 Form and Dating.
(1) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, any Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts
with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be
controlling.
(2) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Each Global Note shall represent such
of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon
and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the
Trustee or the Notes Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof.
(3) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms
and Conditions Governing Use of Euroclear" and the "General Terms
and Conditions of Cedel Bank" and "Customer Handbook" of Cedel
Bank in effect at the relevant time shall be applicable to
transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Cedel
Bank.
Section 1.6 Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual
or facsimile signature. If an Officer whose signature is on a
Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid. A Note
shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture. The Trustee
shall, upon a written order of the Company signed by an Officer
(an "Authentication Order"), authenticate Notes for issuance up
to the aggregate principal amount stated in such Authentication
Order; provided, that Notes authenticated for issuance on the
Issue Date shall not exceed $150,000,000 in aggregate principal
amount. The aggregate principal amount of Notes outstanding at
any time may not exceed $150,000,000, except in accordance with
Section 2.8. The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 1.7 Registrar, Paying Agent and Depositary.
The Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where Notes may be
presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar. The Company initially appoints
The Depository Trust Company ("DTC") to act as Depositary with
respect to the Global Notes. The Company initially appoints the
Trustee to act as the Registrar and Paying Agent and to act as
Notes Custodian with respect to the Global Notes.
Section 1.8 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Notes, and will
notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the
Trustee may require a Paying Agent and in such event any such
Paying Agent shall have the obligation to pay all money held by
it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for such money.
If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company,
the Trustee shall serve as Paying Agent for the Notes.
Section 1.9 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise comply
with TIA 312(a). If the Trustee is not the Registrar, the
Company shall furnish, or shall cause the Registrar (if other
than the Company) to furnish, to the Trustee at least seven
Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Company shall
otherwise comply with TIA 312(a).
Section 1.10 Transfer and Exchange.
(1) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that (A) the
Depositary is unwilling or unable to continue to act as
Depositary for the Global Notes and the Company thereupon fails
to appoint a successor Depositary within 90 days or (B) the
Depositary is no longer a clearing agency registered under the
Exchange Act, (ii) the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee or (iii) upon request of the Trustee
or Holders of a majority of the aggregate principal amount of
outstanding Notes if there shall have occurred and be continuing
a Default or Event of Default with respect to the Notes;
provided, that in no event shall the Reg S Temporary Global Note
be exchanged by the Company for Definitive Notes prior to (A) the
expiration of the Distribution Compliance Period and (B) the
receipt by the Registrar of any certificate identified by the
Company and its counsel to be required pursuant to Rule 903 or
Rule 904 under the Securities Act. Upon the occurrence of any of
the preceding events in (i), (ii) or (iii) above, Definitive
Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.7 and
2.10 hereof. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall
be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note
other than as provided in this Section 2.6(a), however,
beneficial interests in a Global Note may be transferred and
exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(2) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the
Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by
the Securities Act. Transfers of beneficial interests in the
Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the
Private Placement Legend; provided, however, that prior to the
expiration of the Distribution Compliance Period, transfers of
beneficial interests in the Reg S Temporary Global Note may not
be made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Beneficial interests
in
any Unrestricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.6(b)(i).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(i)
above, the transferor of such beneficial interest must deliver to
the Registrar either (A) (1) an order from a Participant or an
Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1)
an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note
in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above; provided, that
in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Reg S Temporary Global
Note prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates
identified by the Company or its counsel to be required pursuant
to Rule 903 and Rule 904 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance
with Section 2.6(f) hereof, the requirements of this Section
2.6(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.6(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note
may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of Section
2.6(b)(ii) above and the Registrar receives the following:
(1) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(2) if the transferee will take delivery in the form of a
beneficial interest in the Reg S Temporary Global Note or the
Reg S Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for
a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of Section
2.6(b)(ii) above and:
(1) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the holder of the
beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(4) the Registrar receives the following: (1) if the
holder of such beneficial interest in a Restricted Global Note
proposes to xchange such beneficial interest for a beneficial
interest in an unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or (2) if the holder of
such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item
(4) thereof; and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Company
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(1)
If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.2
hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to
subparagraph (B) or (D) above. Beneficial interests in
an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global
Note.
(3) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(2) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(3) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(4) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(5) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(6) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(7) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of
the applicable Restricted Global Note to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the
Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2, the Trustee shall
authenticate and deliver to the Person designated in the
instructions a Restricted Definitive Note in the appropriate
principal amount. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.6(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Restricted Definitive Notes to
the Persons in whose names such Notes are so registered.
Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to
this Section 2.6(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer
contained therein.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:
(1) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-
Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(4) the Registrar receives the following: (1) if the
holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or (2) if
the holder of uch beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Note
that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form,
and from legal counsel, reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then,
upon satisfaction of the conditions set forth in Section
2.6(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Unrestricted Global Note to be
reduced accordingly pursuant to Section 2.6(h) hereof, and the
Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2, the Trustee shall authenticate and
deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal amount.
Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(iii) shall be
registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Unrestricted Definitive Notes to the
Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iii) shall not bear the
Private Placement Legend.
(4) Transfer or Exchange of Reg S Temporary Global Notes.
Notwithstanding the other provisions of this Section 2.6, a
beneficial interest in the Reg S Temporary Global Note may not be
(A) exchanged for a Definitive Note prior to (1) the expiration
of the Distribution Compliance Period (unless such exchange is
effected by the Company, does
not require an investment decision on the part of the holder thereof
and does not violate the provisions of Regulation S) and (2) the
receipt by the Registrar of any certificates identified by the
Company or its counsel to be required pursuant to Rule 903(b)(3)(B)
under the Securities Act or (B) transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to the events
set forth in clause (A) above or unless the transfer is pursuant to
an exemption from the registration requirements of the Securities
Act other than Rule 903 or Rule 904.
(4) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such
Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following
documentation:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(2) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof; or
(3) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive
Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, and in the case
of clause (C) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:
(1) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the Holder, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(4) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Notes proposes to exchange
such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof; and, in each such case set forth in this subparagraph
(D), an Opinion of Counsel, and from legal counsel, in form
reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities
Act. Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.6(d)(ii), the Trustee shall
cancel the Restricted Definitive Notes so transferred or
exchanged and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Definitive Notes
to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note
and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) of this Section 2.6(d) at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and,
upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal
to the principal amount of Definitive Notes so transferred.
(5) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.6(e),
the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of
this Section 2.6(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in
the form of a Restricted Definitive Note if the Registrar
receives the following:
(1) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(2) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(3) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note if:
(1) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the Holder, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(4) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Notes proposes to exchange
such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or (2) if the Holder of
such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof; and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Company
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(6) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company
shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2, and an Opinion of Counsel for the
Company as to certain matters discussed in this Section 2.6(f)
the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the sum of
(A) the principal amount of the beneficial interests in the
Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (1) they
are not Broker-Dealers, (2) they are not participating in a
distribution of the Exchange Notes and (3) they are not
affiliates (as defined in Rule 144) of the Company, and accepted
for exchange in the Exchange Offer and (B) the principal amount
of Definitive Notes exchanged or transferred for beneficial
interests in Unrestricted Global Notes in connection with the
Exchange Offer pursuant to Section 2.6(d)(ii) and (ii) Definitive
Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Notes accepted for exchange
in the Exchange Offer (other than Definitive Notes described in
clause (i)(B) immediately above). Concurrently with the issuance
of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced
accordingly, and the Company shall execute and, upon receipt of
an Authentication Order pursuant to Section 2.2, the Trustee
shall authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.
The Opinion of Counsel for the Company referenced above
shall state that:
(1) the issuance and sale of the Exchange Notes by the Company
have been duly authorized and, when executed and authenticated in
accordance with the provisions of this Indenture and delivered in
exchange for Series A Notes in accordance with this Indenture and
the Exchange Offer, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms except as the enforceability thereof may be limited by (A)
bankruptcy, fraudulent transfer, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
and (B) equitable principles of general applicability (regardless
of whether enforceability is considered at equity or in law); and
(1)
(2) if applicable, when the Exchange Notes are executed and
authenticated in accordance with the provisions of this Indenture
and delivered in exchange for Series A Notes in accordance with
this Indenture and the Exchange Offer, the Guarantees by the
Guarantors endorsed thereon will be valid and binding obligations
of the Guarantors, enforceable against the Guarantors in
accordance with their terms except as the enforceability thereof
may be limited by (A) bankruptcy, fraudulent transfer,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (B) equitable principles of
general applicability (regardless of whether enforceability is
considered at equity or in law).
(7) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions
of this Indenture.
(1) Private Placement Legend.
(1) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT, IN CONNECTION WITH EXEMPT
RESALES OF THE NOTES BY WARBURG DILLON READ LLC
AND ABN AMRO INCORPORATED (THE "INITIAL
PURCHASERS"), (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (B) IT IS ACQUIRING
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT, IN CONNECTION WITH RESALES AND
TRANSFERS OF THE NOTES OTHER THAN EXEMPT RESALES
OF THE NOTES BY THE INITIAL PURCHASERS, IT WILL
NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE ISSUER), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"U.S. PERSON" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
(2) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
of this Section 2.6 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
(2) Global Note Legend. To the extent required by the
Depositary, each Global Note shall bear legends in substantially
the following forms:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Reg S Temporary Global Note Legend. To the extent
required by the Depositary, each Reg S Temporary Global Note
shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD
WHICH SUCH HOLDER HOLDS THIS NOTE. NOTHING IN THIS
LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE."
(8) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have
been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or cancelled in whole and not in
part, each such Global Note shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such increase.
(9) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon receipt of an Authentication
Order.
(2) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for
any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections
2.10, 3.6, 4.12, 4.13 and 9.5 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same Indebtedness, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(5) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.2 hereof
and ending at the close of business on the day of selection, (B)
to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a Record Date and the
next succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(7) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.2 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this
Section 2.6 to effect a registration of transfer or exchange may
be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to
any certifications and certificates delivered to the
Registrar pursuant to this Section 2.6, the Registrar's
duties shall be limited to confirming that any such
certifications and certificates delivered to it are in the
form of Exhibits A, B, C and D attached hereto. The
Registrar shall not be responsible for confirming the truth
or accuracy of representations made in any such
certifications or certificates.
Section 1.11 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon receipt of an Authentication Order,
shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is
sufficient in both the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Company may charge for its expenses in
replacing a Note. Every replacement Note is an additional
obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
Section 1.12 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee (including any Note represented by a
Global Note) except for those cancelled by it, those delivered to
it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease
to be outstanding because the Company or an Affiliate of the
Company holds the Note. If a Note is replaced pursuant to
Section 2.7 hereof, such Note, together with the Guarantee of
that particular Note endorsed thereon, ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. If the principal
amount of any Note is considered paid under Section 4.1 hereof,
it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or the
maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to
be no longer outstanding and shall cease to accrue interest.
Section 1.13 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that the
Trustee knows are so owned shall be so disregarded.
Section 1.14 Temporary Notes.
Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt
of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Definitive
Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate
Definitive Notes in exchange for temporary Notes. Holders of
temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section 1.15 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, and no one else
shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of
the Exchange Act). Certification of the destruction of all
cancelled Notes
shall be delivered to the Company. Subject to Section 2.7 hereof, the
Company may not issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.
Section 1.16 Defaulted Interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date plus, to the extent lawful, any interest payable on the
defaulted interest at the rate and in the manner provided in
Section 4.1 hereof and in the Note (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant Record Date, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes are registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee and the Paying
Agent in writing of the amount of Defaulted Interest proposed to
be paid on each Note and the date of the proposed payment, and at
the same time the Company shall deposit with the Paying Agent an
amount of cash equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
reasonably satisfactory to the Paying Agent for such deposit
prior to the date of the proposed payment, such cash when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause
(a). Thereupon the Paying Agent shall fix a "Special Record
Date" for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the
receipt by the Paying Agent of the notice of the proposed
payment. The Paying Agent shall promptly notify the Company and
the Trustee of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder at its address as it appears in the Note register
maintained by the Registrar not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names the Notes (or their respective
predecessor Notes) are registered on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee and the Paying Agent
of the proposed payment pursuant to this clause, such manner
shall be deemed practicable by the Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Note shall carry
the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Note.
Section 1.17 CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders;
provided, that any such notice may state that no representation
is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE III
REDEMPTION
Section 1.18 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
redemption provisions of Section 3.7 hereof, it shall furnish to
the Trustee, at least 30 days (unless a shorter period is
acceptable to the Trustee) but not more than 60 days (unless a
longer period is acceptable to the Trustee) before a redemption
date, an Officers' Certificate setting forth (a) the clause of
this Indenture pursuant to which the redemption shall occur, (b)
the redemption date, (c) the principal amount of Notes to be
redeemed and (d) the redemption price.
Section 1.19 Selection of Notes to be Redeemed.
(1) If less than all of the Notes are to be redeemed at any
time, the Trustee shall select the Notes or portions thereof to
be redeemed among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if
any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee considers appropriate and fair. Any
such determination shall be conclusive. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 days
nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
(2) The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to
be redeemed. The Notes may be redeemed in part in multiples of
$1,000 only. Notes and portions of Notes in denominations of
larger than $1,000 selected shall be in amounts of $1,000 or
integral multiples of $1,000; except that if all of the Notes of
a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not an integral multiple of
$1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called
for redemption also apply to portions of Notes called for
redemption.
Section 1.20 Notice of Redemption.
(1) Subject to the provisions of Section 3.7 hereof, at least
30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
(2) The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount equal to the unredeemed portion thereof and
that, after the redemption date upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed
portion shall be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes or portions thereof called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes or portions thereof called for
redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes or portions thereof called for
redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(3) At the written request of the Company, the Trustee shall
give the notice of redemption in the Company's name and at its
expense.
Section 1.21 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.3 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be conditional.
Section 1.22 Deposit of Redemption Price.
On or prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and
accrued and unpaid interest (and Liquidated Damages, if any) on
all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued
and unpaid interest (and Liquidated Damages, if any) on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease
to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest Record
Date but on or prior to the related Interest Payment Date, then
any accrued and unpaid interest (and Liquidated Damages, if any)
shall be paid to the Person in whose name such Note was
registered at the close of business on such Record Date. If any
Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal
is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.1 hereof.
Section 1.23 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon receipt of an Authentication Order,
the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 1.24 Optional Redemption.
Except as set forth below in this Section 3.7, the Notes
shall not be redeemable by the Company.
(1) The Notes shall be redeemable for cash at the option of the
Company, in whole or in part, at any time prior to February 15,
2004, at a redemption price equal to 100% of the principal amount
thereof plus the Applicable Premium as of, and accrued and unpaid
interest and Liquidated Damages, if any, thereon to, the date of
redemption of the Notes ("Redemption Date").
(2) The Notes shall be redeemable for cash at the option of the
Company, in whole or in part, at any time on or after February
15, 2004, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the
12-month period commencing February 15 of the years indicated
below, in each case (subject to the right of Holders of record on
a Record Date to receive the corresponding interest due (and the
corresponding Liquidated Damages, if any) on the corresponding
Interest Payment Date that is on or prior to such redemption
date) together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date:
Year Percentage
2004 105.813%
2005 102.906%
2006 100.000%
2007 and thereafter 100.000%
(3) Notwithstanding the provisions of clause (a) of this Section
3.7, at any time or from time to time prior to February 15, 2003,
upon any sale of the common stock of the Company, up to 35% of
the aggregate principal amount of the Notes originally issued
under this Indenture may be redeemed at the option of the
Company within 90 days of such sale, on not less than 30 days,
but not more than 60 days, prior notice to each Holder of the
Notes to be redeemed, with cash from the Net Cash Proceeds of
such sale, at a redemption price equal to 111.625% of the
principal amount thereof (subject to the right of Holders of
record on a Record Date to receive the corresponding interest
(and the corresponding Liquidated Damages, if any) due on the
Interest Payment Date that is on or prior to such redemption
date) together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date; provided, that
immediately following such redemption not less than 65% of the
aggregate principal amount of the Notes originally issued
pursuant to this Indenture remain outstanding.
(4) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
ARTICLE IV
COVENANTS
Section 1.25 Payment of Notes.
(1) The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in
the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds
as of 12:00 noon Eastern time on the due date money deposited by
the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest
then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the amounts set
forth in the Registration Rights Agreement and herein.
(2) The Company shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue
principal at the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest and Liquidated Damages, if
any, (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 1.26 Maintenance of Office or Agency.
(1) The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office.
(2) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to
time rescind such additional designations; provided, that no
such designation or recission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York. The Company shall
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other
office or agency.
(3) The Company hereby designates the Corporate Trust Office as
one such office or agency of the Company in accordance with
Section 2.3 hereof.
Section 1.27 SEC Reports and Reports to Holders.
(1) Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the
Company will deliver to the Trustee and to each Holder and to
prospective purchasers of Notes identified to the Company by an
Initial Purchaser, at the time the Company is or would have been
(if the Company were subject to such reporting obligations)
required to file such with the Commission, such annual reports
and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act, if the
Company were subject to the requirements of Section 13 or 15(d)
of the Exchange Act, including, with respect to annual
information only, a report thereon by the certified independent
public accountants of the Company as such would be required in
such reports to the Commission, and, in each case, together with
a management's discussion and analysis of financial condition and
results of operations which would be so required and, unless the
Commission will not accept such reports, file with the Commission
the annual, quarterly and other reports which it is or would have
been required to file with the Commission.
(2) For so long as any Transfer Restricted Notes remain
outstanding, the Company shall make available (which shall
include filings by EDGAR) to all Holders and prospective
purchasers, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 1.28 Compliance Certificate.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to
determining whether the Company and its Subsidiaries have kept,
observed, performed and fulfilled their obligations under this
Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the
Company and its Subsidiaries are not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and be continuing, describing all
such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company
is taking or proposes to take with respect thereto. The Company
shall provide the Trustee with timely written notice of any
change in its fiscal year end, which is currently December 31.
(2) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon becoming aware
of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
(1)
Section 1.29 Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested
in good faith and by appropriate proceedings or where the failure
to effect such payment would not have a material adverse effect
on the ability of the Company and any Guarantors to satisfy their
obligations under the Notes, any Guarantees and this Indenture.
Section 1.30 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law
has been enacted.
Section 1.31 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock.
(1) Except as set forth in this Section 4.7, the Company shall
not, and shall not permit any of its Subsidiaries to, directly or
indirectly, issue, assume, guaranty, incur, become directly or
indirectly liable with respect to, or otherwise become
responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness (including Disqualified Capital Stock and
Acquired Indebtedness). Notwithstanding the foregoing if (i) no
Default or Event of Default shall have occurred and be continuing
at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence of Indebtedness and (ii) on the
date of such incurrence (the "Incurrence Date"), the Consolidated
Coverage Ratio of the Company for the Reference Period
immediately preceding the Incurrence Date, after giving effect on
a pro
forma basis to such incurrence of such Indebtedness and,
to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would be at least
2.25 to 1.00 (the "Debt Incurrence Ratio"), then the Company and
its Guarantors may incur such Indebtedness (including
Disqualified Capital Stock).
(2) The foregoing limitations will not apply to:
(1) the incurrence by the Company or any Subsidiary of Purchase
Money Indebtedness; provided, that
(1) the aggregate amount of such Indebtedness incurred and
outstanding at any time pursuant to this paragraph (i) (plus any
Refinancing Indebtedness issued to retire, defease, refinance,
replace or refund such Indebtedness) shall not exceed
$15,000,000 (or the equivalent thereof, at the time of
incurrence, in the applicable foreign currency), and
(2) in each case, such Indebtedness shall not constitute
more than 100% of the cost to the Company or to such Subsidiary
(determined in accordance with GAAP), as applicable, of the
property so purchased, constructed, improved or leased;
(2) the incurrence by the Company or any Guarantor of
Indebtedness in an aggregate amount incurred and outstanding at
any time pursuant to this paragraph (ii) (plus any Refinancing
Indebtedness incurred to retire, defease, refinance, replace or
refund such Indebtedness) of up to $20,000,000 (or the equivalent
thereof, at the time of incurrence, in the applicable foreign
currencies);
(3) the incurrence by the Company or any Guarantor of
Indebtedness pursuant to the Credit Agreement in an aggregate
amount incurred and outstanding at any time pursuant to this
paragraph (iii) (plus any Refinancing Indebtedness incurred to
retire, defease, refinance, replace or refund such Indebtedness)
of up to $180,000,000, minus the amount of any such Indebtedness
(A) retired with the Net Cash Proceeds from any Asset Sale
applied to permanently reduce the outstanding amounts or the
commitments with respect to such Indebtedness pursuant to clause
(i)(B)(2) of paragraph (a) of Section 4.12 or (B) assumed by a
transferee in an Asset Sale;
(4) the incurrence by the Subsidiaries of the Company that are
not Guarantors of Indebtedness so long as, immediately after
giving effect thereto, the aggregate principal amount of any such
Indebtedness incurred and outstanding pursuant to this clause
(iv) (plus any Refinancing Indebtedness incurred to retire,
defease, refinance, replace or refund such Indebtedness) does not
exceed 10% of the consolidated total assets of the Company;
(5) the incurrence by the Company and its Subsidiaries of
Indebtedness evidenced by the Notes and the Exchange Notes issued
pursuant to this Indenture up to the amounts being issued on the
Issue Date;
(6) the incurrence by the Company and any Guarantor of
Refinancing Indebtedness with respect to any Indebtedness
(including Disqualified Capital Stock), described in clause (v)
above, or this clause (vi) or clause (xii) below (less the amount
of any such Existing Indebtedness repaid on or after the Issue
Date), or incurred pursuant to the Debt Incurrence Ratio or which
was refinanced pursuant to this clause (vi);
(7) the incurrence by the Company and any Guarantor of
Indebtedness solely in respect of bankers' acceptances, letters
of credit and performance bonds (to the extent that such
incurrence does not result in the incurrence of any obligation to
repay any obligation relating to borrowed money of others), all
in the ordinary course of business in accordance with customary
industry practices, in amounts and for the purposes customary in
the industry of the Company; provided, that the aggregate
principal amount outstanding of such Indebtedness (including any
Refinancing Indebtedness and any other Indebtedness issued to
retire, refinance, refund, defease or replace such Indebtedness)
shall at no time exceed $10,000,000;
(8) the incurrence by the Company and its Subsidiaries of
Indebtedness represented by performance bonds and letters of
credit for the account of the Company or any such Subsidiary, as
the case may be, in order to provide security for Value Added Tax
(VAT) or customs obligations under bonds posted to a governmental
authority, security for workers' compensation claims and payment
obligations in connection with self-insurance, in each case, that
are incurred in the ordinary course of business in accordance
with customary industry practice in amounts, and for the
purposes, customary in the Company's industry;
(9) the incurrence by the Company of Indebtedness owed to
(borrowed from) any Subsidiary of the Company, and any Subsidiary
of the Company may incur Indebtedness owed to (borrowed from) any
other Subsidiary of the Company or the Company; provided, that
in any case where the Company is the obligor, such obligations
shall be unsecured and contractually subordinated in all respects
to the obligations of the Company pursuant to the Notes, and any
event that causes such Subsidiary no longer to be a Subsidiary
(including by designation to be an Unrestricted Subsidiary) shall
be deemed to be a new incurrence subject to this covenant;
(10) the guaranty by any Subsidiary of the Company of
Indebtedness of the Company or of another Subsidiary that was
permitted to be incurred pursuant to this Indenture,
substantially concurrently with such incurrence or at the time
such Person becomes a Subsidiary; provided, that a Guarantor
cannot guarantee debt of a Subsidiary that is not a Guarantor;
(11) the incurrence by the Company and its Subsidiaries of
Interest Swap and Hedging Obligations that are incurred for the
purpose of fixing or hedging interest rate or currency risk with
respect to any fixed or floating rate Indebtedness that is
permitted by this Indenture to be outstanding or any receivable
or liability the payment of which is determined by reference to a
foreign currency; provided, that the notional amount of any such
Interest Swap and Hedging Obligation does not exceed the
principal amount of Indebtedness to which such Interest Swap and
Hedging Obligation relates;
(12) the incurrence by the Company and its Subsidiaries of
Existing Indebtedness;
(13) the incurrence by the Company of Indebtedness arising from
agreements of the Company or its Subsidiaries providing for
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with
the disposition of any business, assets or a Subsidiary of the
Company otherwise permitted by this Indenture;
(14) the accrual of interest, accretion or amortization of
original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same
terms, and the payment of dividends on Disqualified Stock in the
form of additional shares of the same class of Disqualified
Stock; provided, that in each such case, that the amount thereof
is included in Consolidated Fixed Charges of the Company as
accrued; and
(15) the incurrence by the Company and its Subsidiaries of
Indebtedness to the extent the proceeds thereof are used to
purchase Notes pursuant to a Change of Control offer.
(3) Indebtedness (including Disqualified Capital Stock) of any
Person which is outstanding at the time such Person becomes a
Subsidiary of the Company (including upon designation of any
subsidiary or other Person as a Subsidiary) or is merged with or
into or consolidated with the Company or a Subsidiary of the
Company shall be deemed to have been incurred at the time such
Person becomes a Subsidiary of the Company or is merged with or
into or consolidated with the Company or a Subsidiary of the
Company, as applicable.
(4) Notwithstanding any other provision of this Section 4.7, and
to avoid duplication only, a guarantee of Indebtedness of the
Company or a Subsidiary of the Company incurred in accordance
with the terms of this Indenture issued at the time such
Indebtedness was incurred or if later at the time the guarantor
thereof became a Subsidiary of the Company will not constitute a
separate incurrence, or amount outstanding, of Indebtedness.
Upon each incurrence, the Company may designate the provision of
this Section 4.7 pursuant to which such Indebtedness is being
incurred and, at the time of each subsequent incurrence in
accordance with this Section 4.7, may reclassify such item of
Indebtedness (or any part thereof) in any manner that complies
with the provisions of this Section 4.7.
Section 1.32 Limitation on Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any
Lien of any kind securing Indebtedness, other than Permitted
Liens, upon any of their respective assets now owned or acquired
on or after the Issue Date or upon any income or profits
therefrom unless the Company provides, and causes its
Subsidiaries to provide, concurrently therewith, that the Notes
are equally and ratably so secured; provided, that if such
Indebtedness is Subordinated Indebtedness, the Lien securing such
Indebtedness shall be subordinate and junior to the Lien securing
the Notes with the same relative priority as such Subordinated
Indebtedness shall have with respect to the Notes.
Section 1.33 Limitations on Restricted Payments.
(1) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make any Restricted
Payment if, after giving effect to such Restricted Payment on a
pro forma basis,
(1) a Default or an Event of Default shall have occurred and be
continuing,
(2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in
Section 4.7, or
(3) the aggregate amount of all Restricted Payments made by the
Company and its Subsidiaries, including after giving effect to
such proposed Restricted Payment, on and after the Issue Date,
would exceed, without duplication, the sum of
(1) 50% of the aggregate Consolidated Net Income of the
Company for the period (taken as one accounting period),
commencing on the first day of the first full fiscal quarter
commencing after the Issue Date, to and including the last day
of the fiscal quarter ended immediately prior to the date of
each such calculation for which the consolidated financial
statements of the Company are available (or, in the event the
Consolidated Net Income of the Company for such period is a
deficit, then minus 100% of such deficit), plus
(2) the aggregate Net Cash Proceeds received by the
Company from a Capital Contribution or from the sale of
Qualified Capital Stock of the Company (other than (1) to one
of the Company's Subsidiaries and (2) to the extent applied in
connection with a Qualified Exchange after the Issue Date), plus
(3) except in each case, in order to avoid duplication,
to the extent any such payment or proceeds have been included
in the calculation of Consolidated Net Income, an amount equal
to the net reduction in Investments (other than returns of or
from Permitted Investments) in any Person resulting from
distributions on or repayments of any Investments, including
payments of interest on Indebtedness, dividends, repayments of
loans or advances, or other distributions or other transfers of
assets, in each case to the Company or any Subsidiary of the
Company or from the Net Cash Proceeds from the sale of any such
Investment (valued in each case as provided in the definition of
''Investments''), not to exceed, in each case, the amount of
Investments previously made by the Company or any Subsidiary of
the Company in such Person, plus
(4) 50% of any cash dividends received by the Company or
any of its Subsidiaries after the date of this Indenture from an
Unrestricted Subsidiary, to the extent that such dividends were
not otherwise included in the Consolidated Net Income of the
Company for such period, plus
(5) to the extent that any Unrestricted Subsidiary is
redesignated as a Subsidiary after the date of this Indenture,
the lesser of (1) the fair market value of the Investment by the
Company in such Unrestricted Subsidiary as of the date on which
such Subsidiary was originally designated as an Unrestricted
Subsidiary (the ''Designation Date'') plus the fair market value
of any additional Investments in such Unrestricted Subsidiary
made by the Company after the Designation Date, if any, and (2)
the fair market value of such Investments as measured on the
Determination Date, in each case to the extent such amount was
not otherwise included in Consolidated Net Income of the
Company.
(2) The foregoing clauses (ii) and (iii) of paragraph (a),
however, will not prohibit:
(1) any dividend, distribution or other payments by any
Subsidiary of the Company on its Equity Interests that is paid
pro rata to all holders of such Equity Interests;
(2) a Qualified Exchange;
(3) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend
could have been made on the date of such declaration in
compliance with the foregoing provisions;
(4) repurchases of the Capital Stock of the Company deemed to
occur on the exercise of stock options;
(5) payments in lieu of fractional shares not to exceed
$2,000,000 in the aggregate;
(6) repurchases of Capital Stock of the Company in accordance
with a repurchase program that is approved and adopted by the
Board of Directors of the Company and whose primary purpose is to
provide Capital Stock to satisfy the obligations of the Company
under stock option plans and employee stock purchase plans not to
exceed $4,000,000 in the aggregate;
(7) that portion of Investments the payment for which consists
exclusively of the Equity Interests of the Company (other than
Disqualified Stock); or
(8) other Restricted Payments not to exceed $20,000,000 in the
aggregate.
(3) The full amount of any Restricted Payment made pursuant to
the foregoing clauses (i), (iii), (v), (vi), and (viii) (but not
pursuant to clause (ii), (iv) and (vii)) of paragraph (b) above,
however, will be counted as Restricted Payments made for purposes
of the calculation of the aggregate amount of Restricted Payments
available to be made referred to in clause (iii) of paragraph (a)
above.
(4) For purposes of this Section 4.9, the amount of any
Restricted Payment made or returned, if other than in cash, shall
be the fair market value thereof, as determined in the good faith
reasonable judgment of the Board of Directors of the Company,
unless stated otherwise, at the time made or returned, as
applicable. Additionally, not later than the date of making each
Restricted Payment, the Company shall deliver an Officers'
Certificate to the Trustee describing in reasonable detail the
nature of such Restricted Payment, stating the amount of such
Restricted Payment, stating in reasonable detail the provisions
hereof pursuant to which such Restricted Payment was made and
certifying that such Restricted Payment was made in compliance
with the terms hereof.
Section 1.34 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
(1) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, assume or suffer
to exist any consensual restriction on the ability of any of its
Subsidiaries to pay dividends or make other distributions to or
on behalf of, or to pay any obligation to or on behalf of, or
otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or
any of its Subsidiaries, except
(1) restrictions imposed by the Notes or this Indenture or by
the other Indebtedness of the Company ranking senior or pari
passu with the Notes; provided, that, except as set forth in
clause (v) below, such restrictions are no more restrictive taken
as a whole than those imposed by this Indenture and the Notes,
(2) restrictions imposed by applicable law,
(3) existing restrictions under Existing Indebtedness,
(4) restrictions under any Acquired Indebtedness not incurred
in violation of this Indenture or any agreement (including any
Equity Interest) relating to any property, asset, or business
acquired by the Company or any of its Subsidiaries, which
restrictions in
each case existed at the time of acquisition, were not put in place
in connection with or in anticipation of such acquisition and are
not applicable to any Person, other than the Person acquired, or to
any property, asset or business, other than the property, assets and
business so acquired,
(5) any restriction imposed by Indebtedness incurred under the
Credit Agreement; provided, that such restriction or requirement
is no more restrictive taken as a whole than that imposed by the
Credit Agreement as of the Issue Date,
(6) restrictions with respect solely to a Subsidiary of the
Company imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all or substantially
all of the Equity Interests or assets of such Subsidiary;
provided, that such restrictions apply solely to the Equity
Interests or assets of such Subsidiary which are being sold,
(7) restrictions on transfer contained in Purchase Money
Indebtedness; provided, that such restrictions relate only to the
transfer of the property acquired with the proceeds of such
Purchase Money Indebtedness,
(8) provisions with respect to the disposition or distribution
of assets or property in joint venture agreements, asset sale
agreements, stock sale agreements and other similar agreements
entered into in the ordinary course of business,
(9) restrictions on cash or other deposits or net worth imposed
by customers under contracts entered into in the ordinary course
of business, and
(10) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (i),
(iii), (iv), (v) or (vii) above or this clause (x) that are not
more restrictive taken as a whole than those being replaced and
do not apply to any other Person or assets than those that would
have been covered by the restrictions in the Indebtedness so
refinanced.
(2) Notwithstanding the foregoing, (i) customary provisions
restricting subletting or assignment of any lease entered into in
the ordinary course of business, consistent with industry
practice and (ii) any asset subject to a Lien which is not
prohibited to exist with respect to such asset pursuant to the
terms of this Indenture may be subject to customary restrictions
on the transfer or disposition thereof pursuant to such Lien.
Section 1.35 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Subsidiaries on or after the Issue Date to, enter into or suffer
to exist any contract, agreement, arrangement or transaction with
any Affiliate (an ''Affiliate Transaction''), or any series of
related Affiliate Transactions (other than Exempted Affiliate
Transactions)
(1) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to the Company, and no less
favorable to the Company than could have been obtained in an
arm's length transaction with a non-Affiliate,
(2) if involving consideration to either party in excess of
$5,000,000 such Affiliate Transaction(s) is evidenced by an
Officers' Certificate addressed and delivered to the Trustee
certifying that such Affiliate Transaction (or Transactions) has
been approved by a majority of the members of the Board of
Directors of the Company that are disinterested in such
transaction, and
(3) if involving consideration to either party in excess of
$7,000,000, obtain a written favorable opinion as to the fairness
of such transaction to the Company from a financial point of view
from an independent investment banking firm of national
reputation in the United States or, if pertaining to a matter for
which such investment banking firms do not customarily render
such opinions, an appraisal or valuation firm of national
reputation in the United States.
Section 1.36 Limitation on Sale of Assets and Subsidiary Stock.
(1) The Company shall not, and shall not permit any of its
Subsidiaries to, in one or a series of related transactions,
convey, sell, transfer, assign or otherwise dispose of, directly
or indirectly, any of their property, business or assets,
including by merger or consolidation (in the case of a Subsidiary
of the Company), and including any sale or other transfer or
issuance of any Equity Interests of any Subsidiary of the
Company, whether by the Company or any Subsidiary of the Company
or through the issuance, sale or transfer of Equity Interests by
a Subsidiary of the Company and including any sale and leaseback
transaction (any of the foregoing, an ''Asset Sale''), unless
(1) either:
(1) an amount equal to the Net Cash Proceeds therefrom
(the ''Asset Sale Offer Amount'') are applied within 365 days
after the date of such Asset Sale to the repurchase of the Notes
and such other Indebtedness on a parity with the Notes and with
similar provisions requiring the Company to make an offer to
purchase such Indebtedness with the proceeds from such Asset
Sale pursuant to a cash offer (subject only to conditions
required by applicable law, if any) (pro rata in proportion to
the respective principal amounts (or accreted values in the
case of Indebtedness issued with an original issue discount) of
the Notes and such other Indebtedness then outstanding) (the
''Asset Sale Offer'') at a purchase price of 100% of the
principal amount (or accreted value in the case of Indebtedness
issued with an original issue discount) (the ''Asset Sale Offer
Price'') together with accrued and unpaid interest and
Liquidated Damages, if any, to the date of payment, or
(2) within 365 days following such Asset Sale, the Asset
Sale Offer Amount is
(1) invested in property or assets (other than notes,
bonds, obligations and securities) which will immediately
constitute or be a part of a Related Business of the
Company or such Subsidiary (if it continues to be a
Subsidiary) immediately following such transaction, or
(2) used to retire Purchase Money Indebtedness
secured by the asset which was the subject of the Asset
Sale, Indebtedness outstanding under the Credit Agreement
or a Foreign Subsidiary Credit Agreement, or other Senior
Debt, on a pro rata basis, and to permanently reduce (in
the case of Senior Debt that is not such Purchase Money
Indebtedness) the amount of such Indebtedness outstanding
on the Issue Date or permitted pursuant to clause (b)(iii)
of Section 4.7 (and, in the case of a revolver or similar
arrangement that makes credit available on a committed
basis, to
permanently reduce the applicable commitment(s) by such
amount or by the amount required by such agreement,
whichever is less),
except that, in the case of each of the provisions of
clauses (A) and (B), only proceeds from an Asset Sale
of assets or capital stock of a Foreign Subsidiary may
be invested in or used to retire Indebtedness of a
Foreign Subsidiary,
(2) at least 75% of the total consideration for such Asset Sale
or series of related Asset Sales consists of cash or Cash
Equivalents,
(3) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on
a pro forma basis, to such Asset Sale, and
(4) the Board of Directors of the Company determines in good
faith that the Company received or such Subsidiary received, as
applicable, fair market value for such Asset Sale.
(1)
(2) An acquisition of Notes pursuant to an Asset Sale Offer may
be deferred until the accumulated Net Cash Proceeds from Asset
Sales not applied as set forth in (i)(A) or (i)(B) above (the
''Excess Proceeds'') exceeds $10,000,000, and each Asset Sale
Offer shall remain open for 20 Business Days following its
commencement (the ''Asset Sale Offer Period'').
(3) Upon expiration of the Asset Sale Offer Period, the Company
shall apply the Asset Sale Offer Amount plus an amount equal to
accrued and unpaid interest and Liquidated Damages, if any, to
the purchase of all Indebtedness properly tendered in accordance
with the provisions hereof (on a pro rata basis if the Asset Sale
Offer Amount is insufficient to purchase all Indebtedness so
tendered) at the Asset Sale Offer Price (together with accrued
interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Notes and such other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Asset
Sale Offer Amount, the Company may use any remaining Net Cash
Proceeds for general corporate purposes as otherwise permitted by
this Indenture and following the consummation of each Asset Sale
Offer the Excess Proceeds amount shall be reset to zero. For
purposes of (a)(ii) above, total consideration received means the
total consideration received for such Asset Sales minus the
amount of, (i) Purchase Money Indebtedness secured solely by the
assets sold and assumed by a transferee; provided, that the
Company is and its Subsidiaries are fully released from
obligations in connection therewith and (ii) property that within
30 days of such Asset Sale is converted into cash or Cash
Equivalents; provided, that such cash and Cash Equivalents shall
be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received).
(4) Notwithstanding, and without complying with, the provisions
of this Section 4.12,
(1) the Company and its Subsidiaries may, in the ordinary
course of business,
(1) convey, sell, transfer, assign or otherwise dispose of
inventory and other assets acquired and held for resale in the
ordinary course of business,
(2) liquidate Cash Equivalents and
(3) liquidate securities that consist of shares of capital
stock that are traded on a nationally recognized stock exchange,
(2) the Company and its Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets pursuant to and in
accordance with Article V hereof,
(3) the Company and its Subsidiaries may sell or dispose of
damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer
necessary for the proper conduct of the business of the Company
or such Subsidiary, and the Company may convey, sell, transfer,
assign or otherwise dispose of assets to any Subsidiary of the
Company provided such transaction is otherwise in compliance with
Section 4.11, except that the Company is not required to comply
with the provisions of clause (c) of such Section,
(4) Subsidiaries of the Company may convey, sell, transfer,
assign or otherwise dispose of assets to the Company or any other
Subsidiary of the Company,
(5) the Company and its Subsidiaries may, in the ordinary
course of business, convey, sell, transfer, assign, or otherwise
dispose of assets (or related assets in related transactions) with
a fair market value of less than $2,000,000,
(6) the Company and its Subsidiaries may exchange assets held
by the Company or such Subsidiaries for assets held by any Person or
entity; provided, that (A) the assets received by the Company or
such Subsidiaries in any such exchange will immediately
constitute, be a part of, or be used in, a Related Business of
the Company or such Subsidiaries, (B) the Board of Directors of
the Company has determined that the terms of any exchange are
fair and reasonable, (C) any such exchange shall be deemed to be
an Asset Sale to the extent that the Company or any of its
Subsidiaries receives cash or Cash Equivalents in such exchange,
and (D) that, in the case of a transaction exceeding $10,000,000
of consideration to any party thereto, the Company shall have
obtained a favorable written opinion by an independent financial
advisor of national reputation in the United States as to the
fairness from a financial point of view to the Company or such
Subsidiaries of the proposed transaction,
(7) the Subsidiaries of the Company may issue their Equity
Interests to the Company or to another Subsidiary of the Company,
(8) Permitted Liens may be granted, and
(9) the Company and its Subsidiaries may make or liquidate any
Restricted Payment or Permitted Investment that is permitted by
Section 4.9 hereof.
(5) All Net Cash Proceeds from an Event of Loss in excess of
$10,000,000 (other than the proceeds of any business interruption
insurance) shall be reinvested or used as otherwise provided
above in clauses (i)(A) or (i)(B) of paragraph (a) of this
Section 4.12.
(6) Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if
applicable, Regulation 14E of the Exchange Act and the rules and
regulations thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of
this Section 4.12, compliance by the Company or any of its
Subsidiaries with such laws and regulations shall not in and of
itself cause a breach of the Company's obligations under this
Section 4.12.
(7) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on
or before the associated Interest Payment Date, any accrued
and unpaid interest (and Liquidated Damages, if any) due on such
Interest Payment Date will be paid to the Person in whose name a
Note is registered at the close of business on such Record Date,
and such interest (or Liquidated Damages, if applicable) will not
be payable to Holders who tender Notes pursuant to such Asset
Sale Offer.
Section 1.37 Repurchase of Notes at the Option of the Holder
upon a Change of Control.
(1) In the event that a Change of Control has occurred, each
Holder of Notes will have the right, at such Holder's option,
pursuant to an offer (subject only to conditions required by
applicable law, if any) by the Company (the ''Change of Control
Offer''), to require the Company to repurchase all or any part of
such Holder's Notes (provided, that the principal amount of such
Notes must be $1,000 or an integral multiple thereof) on a date
(the ''Change of Control Purchase Date'') that is no later than
45 Business Days after the occurrence of such Change of Control,
at a cash price equal to 101% of the principal amount thereof
(the ''Change of Control Purchase Price''), together with accrued
and unpaid interest and Liquidated Damages, if any, to the Change
of Control Purchase Date.
(2) The Change of Control Offer shall be made within 10 Business
Days following a Change of Control (but may be commenced prior to
the Change of Control so long as it is contingent on the Change
of Control) and shall remain open for 20 Business Days following
its commencement (the ''Change of Control Offer Period''). Upon
expiration of the Change of Control Offer Period, the Company
shall promptly purchase all Notes properly tendered in response
to the Change of Control Offer.
(3) Notwithstanding the foregoing, the Company shall not be
required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change
of Control Offer made by the Company.
(4) Prior to the commencement of a Change of Control Offer, but
in any event within 45 days following any Change of Control, the
Company shall:
(1)
(1) repay in full and terminate all commitments of
Indebtedness under the Credit Agreement and all other Senior
Debt the terms of which require repayment upon a Change of
Control or
(2) offer to repay in full and terminate all commitments
of Indebtedness under the Credit Agreement and all such other
Senior Debt and repay the Indebtedness owed to each lender which
has accepted such offer in full, or
(2) obtain the requisite consents under the Credit Agreement
and all such other Senior Debt to permit the repurchase of the Notes
as provided herein.
(5) The failure of the Company to comply with the preceding
sentence shall constitute an Event of Default described in clause
(a)(iii) of Section 6.1, but without giving effect to the stated
exceptions in that clause.
(6) On or before the Change of Control Purchase Date, the
Company shall
(1) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent cash sufficient to pay the
Change of Control Purchase Price (together with accrued and
unpaid interest and Liquidated Damages, if any) of all Notes or
portion thereof so tendered, and
(3) deliver to the Trustee the Notes so accepted together with
an Officers' Certificate listing the Notes or portions thereof
being purchased by the Company.
(7) The Paying Agent promptly will pay the Holders of Notes so
accepted an amount equal to the Change of Control Purchase Price
(together with accrued and unpaid interest and Liquidated
Damages, if any) and the Trustee promptly will authenticate and
deliver to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered. Any Notes not so
accepted will be delivered promptly by the Company to the Holder
thereof. The Company will announce publicly the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.
(8) Any Change of Control Offer shall be made in compliance with
all applicable laws, rules and regulations, including, if
applicable, Regulation 14E under the Exchange Act and the rules
thereunder and all other applicable Federal and state securities
laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.13,
compliance by the Company or any of the Guarantors with such laws
and regulations shall not in and of itself cause a breach of
their obligations hereunder.
(9) If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the
associated Interest Payment Date, then any accrued and unpaid
interest (and Liquidated Damages, if any) due on such Interest
Payment Date will be paid to the Person in whose name a Note is
registered at the close of business on such Record Date, and such
interest (and Liquidated Damages, if applicable) will not be
payable to Holders who tender the Notes pursuant to the Change of
Control Offer.
Section 1.38 Limitation on Layering Indebtedness.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, incur, or suffer to
exist any Indebtedness that is contractually subordinate in right
of payment to any other Indebtedness unless, by its terms, such
Indebtedness is Indebtedness of the Company and is contractually
subordinate in right of payment to, or ranks pari passu with, the
Notes.
Section 1.39 Consolidation of Genetic Systems.
Within 180 days following the Issue Date, the Company shall
either (a) consolidate with or merge with (such that the Company
is the surviving entity), or cause to be transferred to the
Company all of the assets of, Genetic Systems or (b) cause
Genetic Systems to irrevocably and unconditionally guarantee the
Notes on a senior subordinated basis.
Section 1.40 Limitation on Status as Investment Company.
The Company and its Subsidiaries shall not become required
to register as an "investment company" (as that term is defined
in the Investment Company Act of 1940, as amended (the
"Investment Company Act")), or otherwise become subject to
regulation under the Investment Company Act.
Section 1.41 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full
force and effect (a) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such
Subsidiary and (b) the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and its Subsidiaries, taken as a whole.
ARTICLE V
SUCCESSORS
Section 1.42 Merger, Consolidation or Sale of Assets.
(1) The Company shall not consolidate with or merge with or into
another Person or, directly or indirectly, sell, lease, convey or
transfer all or substantially all of the assets of the Company
(computed on a consolidated basis), whether in a single
transaction or a series of related transactions, to another
Person or group of affiliated Persons unless
(1) either (A) the Company is the continuing entity or (B) the
resulting, surviving or transferee entity (the "Surviving
Person") is a corporation organized under the laws of the United
States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Notes, this
Indenture and the Registration Rights Agreement,
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such
transaction,
(3) unless such transaction is solely the merger of the Company
with or into any person solely for the purpose of effecting a
change in the state of incorporation of the Company and one of
the Company's previously existing Wholly Owned Subsidiaries and
which transaction is not for the purpose of evading this
provision immediately after giving effect to such transaction on
a pro forma basis, (A) the Surviving Person would immediately
thereafter be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Debt Incurrence Ratio set forth in
Section 4.7 hereof, and (B) the Consolidated Net Worth of the
Surviving Person is at least equal to the Consolidated Net Worth
of the Company immediately prior to such transaction, and
(4) each Guarantor, if any, unless such Guarantor is the Person
with which the Company has entered into a transaction under this
covenant shall have by amendment to its Guarantee confirmed that
its Guarantee shall apply to the obligations of the Company or
the obligations of the surviving entity, as applicable, in
accordance with the Notes and this Indenture.
(2) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the
properties and assets of one or more Subsidiaries, the interest
of the Company in which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be
the transfer of all or substantially all of the properties and
assets of the Company.
Section 1.43 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with
Section 5.1 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which
such transfer is made shall (except in the case of a lease)
succeed to and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named therein as
the Company, and (except in the case of a lease) the Company
shall be released from the obligations under the Notes and this
Indenture except with respect to any obligations that arise from,
or are related to, such transaction.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 1.44 Events of Default.
(1) "Event of Default," wherever used herein, means any one of
the following events:
(1) the failure by the Company to pay any installment of
interest (or Liquidated Damages, if any) on the Notes as and when
the same becomes due and payable and the continuance of any such
failure for 30 days,
(2) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Notes when and as the same
becomes due and payable at maturity, redemption, by acceleration
or otherwise, including, without limitation, payment of the
Change of Control Purchase Price (except as provided in Section
4.13 hereof) or the Asset Sale Offer Price, on Notes validly
tendered and not properly withdrawn pursuant to a Change of
Control Offer or Asset Sale Offer, as applicable (as set forth in
Sections 4.13 and 4.12 hereof),
(3) the failure by the Company or any of its Subsidiaries to
observe or perform any other covenant or agreement contained in
the Notes or this Indenture and, except for Sections 4.12, 4.13,
4.15 and 5.1 hereof, the continuance of such failure for a period
of 45 days after written notice is given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes outstanding,
(4) a default in the Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount outstanding in excess of
$10,000,000 (A) resulting from the failure to pay principal at
maturity or (B) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity,
(5) final unsatisfied judgments not covered by insurance
aggregating in excess of $10,000,000, at any one time rendered
against the Company or any of its Subsidiaries and not stayed,
bonded or discharged within 60 days,
(6) any Guarantee of a Guarantor that is a Significant
Subsidiary (or group of Guarantors that on a combined basis would
constitute a Significant Subsidiary) ceases to be in full force
and effect or becomes unenforceable or invalid or is declared
null and void (other than in accordance with the terms of the
Guarantee) or any Guarantor that is a Significant Subsidiary (or
group of Guarantors that on a combined basis would constitute a
Significant Subsidiary) denies or disaffirms its Obligations
under its Guarantee,
(7) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any
applicable Bankruptcy Law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the
property and assets of the Company or any Significant Subsidiary
or (C) the winding up or liquidation of the affairs of the
Company or any Significant Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(8) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable Bankruptcy Law now or
hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to
the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or for all
or substantially all of the property and assets of the Company or
any Significant Subsidiary or (C) effects any general assignment
for the benefit of creditors.
(2) The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 1.45 Acceleration.
(1) If an Event of Default (other than an Event of Default
specified in clause (a)(vii) or (a)(viii) of Section 6.1 that
occurs with respect to the Company) occurs and is continuing
under this Indenture, then in every such case, unless the
principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes, then outstanding, by
written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of, premium, if any,
and accrued interest (and Liquidated Damages, if any) on the
Notes to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued
interest (and Liquidated Damages, if any) shall be immediately
due and payable; provided, however, that if any Designated
Senior Debt is outstanding, upon a declaration of such
acceleration, such principal and interest shall be due and
payable upon the earlier of (i) the fifth Business Day after the
sending to the Company and to the Representative under the Credit
Agreement, of such written notice, unless such Event of Default
is cured or waived prior to such date and (ii) the date of
acceleration of any Designated Senior Debt. In the event a
declaration of acceleration resulting solely from an Event of
Default described in clause (a)(iv) above has occurred and is
continuing, such declaration of acceleration shall be
automatically annulled if such default is cured or waived or the
holders of the Indebtedness which is the subject of such default
have rescinded their declaration of acceleration in respect of
such Indebtedness within five days thereof and the Trustee has
received written notice of such cure, waiver or rescission and no
other Event of Default described in clause (a)(iv) above has
occurred that has not been cured or waived within five days of
the declaration of such acceleration in respect of such
Indebtedness. If an Event of Default specified in clauses
(a)(vii) or (a)(viii) above, relating to the Company, occurs, all
principal and accrued interest (and Liquidated Damages, if any)
thereon will be immediately due and payable on all outstanding
Notes without any declaration or other act on the part of the
Trustee or the Holders.
(2) At any time after such a declaration of acceleration being
made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter provided in this
Article VI, the Holders of not less than a majority in aggregate
principal amount of
then outstanding Notes, by written notice to the Company and the Trustee,
may rescind, on behalf of all Holders, any such declaration of
acceleration if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay: (A) all overdue interest and Liquidated
Damages, if any, on all Notes; (B) the principal of (and premium,
if any, applicable to) any Notes which would become due other
than by reason of such declaration of acceleration, and interest
thereon at the rate borne by the Notes; (C) to the extent that
payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Notes; (D) all sums paid or
advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee
and its agents and counsel, and all other amounts due the Trustee
under Section 7.7; and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest (and Liquidated
Damages, if any) on the Notes which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 6.4.
(3) Notwithstanding the previous sentence of this Section 6.2,
no waiver shall be effective against any Holder for any Event of
Default or event which with notice or lapse of time or both would
be an Event of Default with respect to (i) any covenant or
provision which cannot be modified or amended without the consent
of the Holder of each outstanding Note affected thereby, unless
all such affected Holders agree, in writing, to waive such Event
of Default or other event and (ii) any provision or covenant
requiring supermajority approval to amend, unless such default
has been waived by such a supermajority. No such waiver shall
cure or waive any subsequent default or impair any right
consequent thereon.
(4) If payment of the Notes is accelerated because of an Event
of Default, the Company shall promptly notify each Representative
of Senior Debt of the acceleration.
Section 1.46 Other Remedies.
(1) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of
principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
(2) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of
a Note in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 1.47 Waiver of Past Defaults.
Subject to Section 6.7, the Holders of at least a majority
in principal amount of the outstanding Notes by written notice to
the Company and to the Trustee, may, on behalf of all Holders,
waive any existing or past Default or Event of Default hereunder
and its consequences under this Indenture, except a default:
(1) in the payment of principal of, premium, if any, or interest
on any Note not yet cured as specified in clauses (a)(i) and
(a)(ii) of Section 6.1 hereof;
(2) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of
the Holder of each outstanding Note affected, unless all such
affected Holders agree, in writing, to waive such default;
(3) any provision or covenant requiring supermajority approval
to amend, unless such default has been waived by such a
supermajority; or
(4) the rescission of which would conflict with any judgment or
decree of a court of competent jurisdiction.
(5) Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right arising therefrom.
Section 1.48 Control by Majority.
Holders of at least a majority in aggregate principal amount
of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the
Trustee determines in good faith may be unduly prejudicial to the
rights of other Holders of Notes not joining in the giving of
such direction or that may involve the Trustee in personal
liability and the Trustee may take any other action it deems
proper that is not inconsistent with any such direction received
from Holders of the Notes.
Section 1.49 Limitation on Suits.
(1) A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(3) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the
Trustee against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
(2) A Holder of a Note may not use this Indenture to prejudice
the rights of another Holder of a Note or to obtain a preference
or priority over another Holder of a Note.
Section 1.50 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture,
except as permitted by Section 9.2 and subject to the provisions
of Article XI, the right of any Holder of a Note to receive
payment of the principal of, premium and Liquidated Damages, if
any, and interest on the Note, on or after the respective due
dates
expressed in the Note (including in connection with an offer to purchase)
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 1.51 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1 occurs and
is continuing, the Trustee is authorized to recover judgment in
its own name and as trustee of an express trust against the
Company for the whole amount of principal of, premium and
Liquidated Damages, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section 1.52 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise; provided, that
nothing stated herein shall modify the rights as between the
Holders of the Notes and the holders of Senior Debt or Senior
Debt of the Guarantors, as applicable, as set forth in Article
XI. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and may be a member of
the creditor's committee.
Section 1.53 Priorities.
(1) If the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
(1) to the Trustee, its agents and attorneys for amounts due
under Section 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
(2) subject to the provisions of Article XI, to Holders of
Notes for amounts due and unpaid on the Notes for principal and
Liquidated Damages, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, respectively; and
(3) to the Company or to such party as a court of competent
jurisdiction shall direct.
(2) The Trustee may fix a Record Date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
(1)
Section 1.54 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
Section 1.55 Duties of Trustee.
(1) If an Event of Default of which the Trustee has knowledge
has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in its exercise, as a prudent
man would exercise or use under the circumstances in the conduct
of its own affairs.
(2) Except during the continuance of an Event of Default of
which the Trustee has knowledge:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by an Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to Sections 7.1 and 7.2.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless
such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with
the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 1.56 Rights of Trustee.
(1) In connection with the Trustee's rights and duties under
this Indenture, the Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting under this
Indenture, it may require an Officers' Certificate or an Opinion
of Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within the rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall
be sufficient if signed by an Officer of the Company.
(6) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction.
(7) Except with respect to Section 4.1 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's
covenants in Article IV hereof. In addition, the Trustee shall
not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to
Sections 6.1(a)(i), 6.1(a)(ii) and 4.1 or (ii) any Default or
Event of Default of which the Trustee shall have received written
notification in the manner set for in this Indenture, or an
officer in the corporate trust administration of the Trustee
shall have obtained actual knowledge.
(8) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee may,
in its discretion, make such further inquiry or investigation
into such facts or matters as it may see fit.
(1)
Section 1.57 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Company or any Affiliate of the Company with the same rights
it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest (as defined in the
TIA) it must eliminate such conflict within 90 days, apply to the
SEC for permission to continue as trustee or resign. Any Agent
may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
Section 1.58 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 1.59 Notice of Defaults Agreement.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to
Holders of Notes a notice in the manner and to the extent
provided by Section 313(c) of the TIA of the Default or Event of
Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Officers in good
faith determines that withholding the notice is in the interests
of the Holders of the Notes.
Section 1.60 Reports by Trustee to Holders of the Notes.
(1) Within 60 days after each March 15 beginning with the March
15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that
complies with TIA 313(a) (but if no event described in TIA
313(a) has occurred within the 12 months preceding the
reporting date, no report need be transmitted). The Trustee also
shall comply with TIA 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA 313(c).
(2) A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the SEC and each stock exchange on which the Notes are listed in
accordance with TIA 313(d). The Company shall promptly notify
the Trustee when the Notes are listed on any stock exchange.
Section 1.61 Compensation and Indemnity.
(1) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents
and counsel.
(2) The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses (including reasonable attorneys'
fees) incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.7) and defending
itself against any claim (whether asserted by the Company or any
Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be
attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld.
(3) The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
(4) To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes;
provided, that nothing stated herein shall modify the rights as
between the Holders of the Notes and the holders of the Senior
Debt or Senior Debt of the Guarantors, as applicable, as set
forth in Article XI hereof. Such Lien shall survive the
satisfaction and discharge of this Indenture.
(5) When the Trustee incurs expenses or renders services after
an Event of Default specified in Sections 6.1(a)(vii) or
6.1(a)(viii) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
(6) The Trustee shall comply with the provisions of TIA
313(b)(2) to the extent applicable.
Section 1.62 Replacement of Trustee.
(1) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section
7.8.
(2) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(3) If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
(4) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
(5) If the Trustee, after written request by any Holder of a
Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10, such Holder of a Note may
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(6) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee; provided, that all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under
Section 7.7 hereof shall continue for the benefit of the retiring
Trustee.
Section 1.63 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 1.64 Eligibility; Disqualification.
(1) There shall at all times be a Trustee hereunder that is a
corporation or trust company (or a member of a bank holding
company) organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state
authorities and that has (or the bank holding company of which it
is a member has) a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual
report of condition.
(2) This Indenture shall always have a Trustee who satisfies the
requirements of TIA 310(a)(1), (2) and (5). The Trustee is
subject to TIA 310(b).
Section 1.65 Preferential Collection of Claims against Company.
The Trustee is subject to TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). A Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the
extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 1.66 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate,
at any time, elect to have either Section 8.2 or 8.3 hereof be
applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
Section 1.67 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, each of the Company and
the Guarantors, as applicable, shall, subject to the satisfaction
of the applicable conditions set forth in Section 8.4 hereof, be
deemed to have been discharged from its obligations with respect
to all outstanding Notes and Guarantees, as applicable, on the
date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and the
Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Guarantees, which
shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied
all its other obligations under such Notes, such Guarantees and
this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging
the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.4 hereof, and as more
fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Notes when such payments are due,
(b) the Company's obligations with respect to such Notes under
Article II and Section 4.2 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this
Article VIII. Subject to compliance with this Article VIII, the
Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section
8.3 hereof.
Section 1.68 Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, subject to the
satisfaction of the applicable conditions set forth in Section
8.4 hereof, the Company and the Guarantors shall be released from
their respective obligations under Sections 4.3, 4.4, 4.5, 4.7,
4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and
clause (iii) of Section 5.1 hereof and the Guarantors shall be
released from their obligations under Section 10.3(b) hereof, in
each case on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
and the Guarantees shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Notes, the Company
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.1 hereof of
the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the applicable conditions set forth in Section
8.4 hereof, (a) Sections 6.1(a)(iii) through 6.1(a)(vi) hereof
shall not constitute Events of Default and (b) Sections
6.1(a)(vii) and 6.1(a)(viii) shall not constitute Events of
Default as of the 91st day following the occurrence of the
Company's exercise of Covenant Defeasance; provided, however,
that for all other purposes as set forth herein, such Covenant
Defeasance provisions shall be effective.
Section 1.69 Conditions to Legal or Covenant Defeasance.
(1) The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(1) the Company must irrevocably deposit or cause to be
deposited with the Trustee, in trust, for the benefit of the
Holders of the Notes, U.S. legal tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium,
if any, Liquidated Damages, if any, and interest on such Notes on
the stated date for payment thereof or on the redemption date of
such principal or installment of principal of, premium, if any,
Liquidated Damages, if any, or interest on such Notes, and the
Holders of Notes must have a valid, perfected, exclusive security
interest in such trust;
(2) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has
been published by the Internal Revenue Service, a ruling or
(B) since the date of this Indenture, there has been a change in
the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of such Notes will not recognize
income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to such Trustee
confirming that the Holders of such Notes will not recognize
income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under
this Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the
Holders of such Notes over any other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
the conditions precedent provided for in, in the case of the
Officers' Certificate, clauses (i) through (vi) and, in the case
of the Opinion of Counsel, clauses (i) (with respect to the
validity and perfection of the security interest), (ii),
(iii) and (v) of this paragraph (a) have been complied with.
(2) If the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of, premium, if
any, and interest on the Notes when due, then the obligations of
the Company and the Guarantors under this Indenture will be
revived and no such defeasance shall be deemed to have occurred.
Section 1.70 Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
(1) Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes
of this Section 8.5, the "Trustee") pursuant to Section 8.4
hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes
of all sums due and to become due thereon in respect of
principal, premium, if any, and interest (and Liquidated Damages,
if any), but such money need not be segregated from other funds
except to the extent required by law.
(2) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash
or U.S. Government Obligations deposited pursuant to Section 8.4
hereof or the principal and interest received in respect thereof,
other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Notes.
(3) Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any money or
U.S. Government Obligations held by it as provided in Section 8.4
hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.4(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 1.71 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of, premium, if any, Liquidated Damages, if any, or
interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, Liquidated Damages, if any,
or interest has become due and payable shall be paid to the
Company on its written request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note
shall thereafter, as a creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1.72 Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States legal tender or U.S. Government Obligations in
accordance with Section 8.2 or 8.3 hereof, as the case may be, by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof until
such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.2 or 8.3 hereof, as
the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any
Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying
Agent.
Section 1.73 Satisfaction and Discharge.
In addition to the Company's rights under Sections 8.2 and
8.3, the Company and the Guarantors may terminate all of their
obligations under this Indenture (subject to Section 8.7) when:
(1) either (i) all such outstanding Notes theretofore
authenticated and delivered (other than Notes that have been
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.7) have been delivered to the Trustee for
cancellation, or (ii) all such Notes not theretofore delivered to
the Trustee for cancellation have become due and payable or,
within one year will become due and payable or subject to
redemption under Section 3.7 hereof, and the Company has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the
Trustee for cancellation, for principal of, premium, if any, and
interest to the Stated Maturity of the Notes;
(2) the Company has paid all sums payable hereunder;
(3) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the
Notes at maturity or on the redemption date, as the case may be;
(4) the Holders have a valid, perfected, exclusive security
interest in such trust; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied
with, and that such satisfaction and discharge will not result in
a breach or violation of, or constitute a Default under, this
Indenture or any other material instrument to which the Company,
any Guarantors or any of their Subsidiaries is a party or by
which it or their property is bound.
(1)
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1.74 Without Consent of Holders of Notes.
(1) Notwithstanding Section 9.2 of this Indenture, the Company,
any Guarantor and the Trustee may amend or supplement this
Indenture, the Notes or any Guarantee, without the consent of any
Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article V hereof;
(4) to provide for additional Guarantors as set forth in
Section 10.4 or for the release or assumption of a Guarantee in
compliance with this Indenture;
(5) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not
adversely affect the rights hereunder of any Holder;
(6) to comply with the provisions of the Depositary, Euroclear
or Cedel or the Trustee with respect to the provisions of this
Indenture or the Notes relating to transfers and exchanges of
Notes or beneficial interests therein; or
(7) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
(2) Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that adversely affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 1.75 With Consent of Holders of Notes.
(1) Except as expressly stated otherwise in this Section 9.2,
and subject to Sections 6.4 and 6.7 hereof, the Company, any
Guarantor and the Trustee may amend or supplement this Indenture,
the Notes and the Guarantees, with the consent of the Holders of
a majority in aggregate principal amount of the Notes then
outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer
for, the Notes), and, subject to Sections 6.4 and 6.7 hereof, any
existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with
any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including consents obtained
in connection with a purchase of, or tender offer or exchange
offer for, the Notes); provided, that no such modification may,
without the consent of Holders of at least 66_% in aggregate
principal amount of Notes at the time outstanding, modify the
provisions (including the defined terms used therein) of Section
4.13 in a manner adverse to the Holders; and provided, further,
that no such modification may, without the consent of each Holder
affected thereby
(1) change the Stated Maturity on any Note, or reduce the
principal amount thereof or the rate (or extend the time for
payment) of interest thereon or any premium payable upon the
redemption thereof at the Company's option, or change the place
of payment where, or the coin or currency in which, any Note or
any premium or the interest thereon (and Liquidated Damages, if
any) is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or in the case of redemption at the Company's option, on
or after the Redemption Date), or, after the applicable Change of
Control or Asset Sale occurs, reduce the corresponding Change of
Control Purchase Price or the Asset Sale Offer Price or alter the
provisions (including the defined terms used herein) of Article
III of this Indenture in a manner adverse to the Holders; or
(2) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is required for any
such amendment, supplemental indenture or waiver provided for in this
Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Note affected thereby.
(2) In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to,
offer to any Holder who consents to such amendment, supplement or
waiver, or to all Holders, consideration for such Holder's
consent to such amendment, supplement or waiver.
(3) Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of
the Holders of Notes as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company in the execution of such
amended or supplemental indenture unless such amended or
supplemental indenture adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
(4) It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof.
(5) After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental
indenture or waiver.
(1)
Section 1.76 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that
complies with the TIA as then in effect.
Section 1.77 Revocation and Effect of Consents.
(1) Until an amendment, supplement or waiver becomes effective
(as determined by the Company and which may be prior to any such
amendment, supplement or waiver becoming operative), a consent to
it by a Holder of a Note is a continuing consent by the Holder of
a Note and every subsequent Holder of a Note or portion of a Note
that evidences the same Indebtedness as the consenting Holder's
Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note
may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver,
supplement or amendment becomes effective (as determined by the
Company).
(2) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver, which record date
shall be the date so fixed by the Company notwithstanding the
provisions of the TIA. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date,
and only those Persons (or their duly designated proxies), shall
be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date.
(3) After an amendment, supplement or waiver becomes effective,
it shall bind every Holder unless it makes a change described in
any of clauses (a)(i) through (a)(iii) of Section 9.2 hereof, in
which case, the amendment, supplement or waiver shall bind only
each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note; provided, that
any such waiver shall not impair or affect the right of any
Holder to receive payment of principal and premium of and
interest (and Liquidated Damages, if any) on a Note, on or after
the respective dates set for such amounts to become due and
payable expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective
dates.
Section 1.78 Notation on or Exchange of Notes.
(1) The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
(2) Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 1.79 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment,
supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. In executing
any amendment, supplement or waiver, the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and
to receive and (subject to Section 7.1) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amendment, supplement
or waiver is authorized or permitted by this Indenture.
ARTICLE X
GUARANTEES
Section 1.80 Guarantees.
(1) Subject to the provisions of this Article X, and in
consideration of good and valuable consideration, the receipt of
and sufficiency of which are hereby acknowledged, each Guarantor
that from time to time shall be required to execute a
supplemental indenture in accordance with Section 10.4 hereof,
jointly and severally, if any, to the fullest extent permitted
under applicable law, irrevocably and unconditionally guarantees,
as to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, that:
(i) the principal of, and premium and interest and Liquidated
Damages, if any, on the Notes shall be duly and punctually paid
in full when due, whether at maturity, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale
Offer or otherwise, and interest on overdue principal, and
premium, if any, and (to the extent permitted by law) interest on
any interest, if any, on the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or under the
Notes (including fees, expenses or other) shall be promptly paid
in full or performed, all in accordance with the terms hereof;
and (ii) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated
maturity, by acceleration, call for redemption, upon a Change of
Control, upon an Asset Sale Offer or otherwise (collectively, the
"Guarantee Obligations"). Failing payment when due of any
Guarantee Obligation or failing performance of any other
obligation of the Company to the Holders, for whatever reason,
each Guarantor shall be obligated to pay, or to perform or to
cause the performance of, the same immediately and before the
failure to so pay becomes an Event of Default. An Event of
Default under this Indenture or the Notes shall constitute an
event of default under the Guarantee, and shall entitle the
Trustee or the Holders of Notes to accelerate the Guarantee
Obligations of each Guarantor hereunder in the same manner and to
the same extent as the Obligations of the Company.
(2) Each Guarantor hereby agrees that, to the fullest extent
permitted under applicable law, its Guarantee Obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any thereof, the entry
of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby, to the fullest extent permitted under
applicable law, waives and relinquishes, (i) any right to require
the Trustee, the Holders or the Company (each, a "Benefitted
Party") to proceed against the Company, the Subsidiaries or any
other Person or to proceed against or exhaust any security held
by a Benefitted Party at any time or to pursue any other remedy
in any secured party's power before proceeding against the
Guarantors; (ii) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any other
Person or Persons or the failure of a Benefitted Party to file or
enforce a claim against the estate (in administration, bankruptcy
or any other proceeding) of any other Person or Persons; (iii)
demand, protest and notice of any kind (except as expressly
required by this Indenture), including but not limited to notice
of the existence, creation or incurring of any new or additional
Indebtedness or obligation or of any action or non-action on the
part of the Guarantors, the Company, the Subsidiaries, any
Benefitted Party, any creditor of the Guarantors, the Company or
the Subsidiaries or on the part of any other Person whomsoever in
connection with any obligations the performance of which are
hereby guaranteed; (vi) any defense based upon an election of
remedies by a Benefitted Party, including but not limited to an
election to proceed against the Guarantors for reimbursement; (v)
any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefitted Party's
election, in any proceeding instituted under the Bankruptcy Law,
of the application of Section 1111(b)(2) of the Bankruptcy Code;
and (vii) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. The
Guarantors hereby covenant that, except as otherwise provided
therein, the Guarantees shall not be discharged except by payment
in
full of all Guarantee Obligations, including the principal,
premium, if any, and interest on the Notes and all other costs
provided for under this Indenture or as provided in Section 8.1.
(3) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or the Guarantors, or
any trustee or similar official acting in relation to either the
Company or the Guarantors, any amount paid by the Company or the
Guarantors to the Trustee or such Holder, the Guarantees, to the
extent theretofore discharged, shall be reinstated in full force
and effect. Each of the Guarantors agrees that it shall not be
entitled to any right of subrogation in relation to the Holders
in respect of any Guarantee Obligations hereby until payment in
full of all such obligations guaranteed hereby. Each Guarantor
agrees that, as between it, on the one hand, and the Holders of
Notes and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article VI hereof for the purposes hereof, notwithstanding any
stay, injunction or other prohibition preventing such
acceleration in respect of the Guarantee Obligations, and (ii) in
the event of any acceleration of such obligations as provided in
Article VI hereof, such Guarantee Obligations (whether or not due
and payable), shall forthwith become due and payable by such
Guarantor for the purpose of the Guarantee.
Section 1.81 Execution and Delivery of Guarantees.
(1) To evidence the Guarantees set forth in Section 10.1 hereof,
each of the Guarantors agrees that a supplemental indenture
substantially in the form of Exhibit E hereto shall be executed
on behalf of each of the Guarantors by an Officer of each of the
Guarantors.
(2) Each of the Guarantors agree that the Guarantees set forth
in this Article X shall remain in full force and effect and apply
to all the Notes notwithstanding any failure to endorse on each
Note a notation of the Guarantees.
(3) If an Officer whose facsimile signature is on a Note or a
notation of Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which the Guarantees are
endorsed, the Guarantees shall be valid nevertheless.
(4) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Guarantees set forth in this Indenture on behalf of the
Guarantors.
Section 1.82 Guarantors May Consolidate, etc., on Certain
Terms.
(1) Nothing contained in this Indenture or in the Notes shall
prevent any consolidation or merger of any Guarantor with or into
each other or with or into the Company. Upon any such
consolidation or merger, the Subsidiary Guarantee of the
Subsidiary Guarantor that does not survive the consolidation or
merger shall no longer be of any force or effect.
(2) Except for a merger or consolidation in which a Guarantor is
sold and its Guarantee is released in compliance with the
provisions of Section 10.5, no Guarantor shall consolidate or
merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless, subject to the
provisions of the following paragraph and certain other
provisions of this Indenture, (i) the Person formed by or
surviving any such consolidation or merger (if other than such
Guarantor) assumes all the obligations of such Guarantor pursuant
to a supplemental indenture in form reasonably satisfactory to
the Trustee, pursuant to which such person shall unconditionally
guarantee, on a senior subordinated basis, all of such
Guarantor's obligations under such Guarantor's Guarantee and this
Indenture on the terms set forth in this Indenture; and (ii)
immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default
shall have occurred or be continuing. In case of any such
consolidation or merger and upon
the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and reasonably satisfactory in form
to the Trustee, of the Guarantees endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of
this Indenture to be performed by such Guarantor, such successor
corporation shall succeed to and be substituted for such
Guarantor with the same effect as if it had been named herein as
a Guarantor. Such successor corporation thereupon may cause to
be signed any or all of the Guarantees to be endorsed upon all of
the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee. All the
Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Guarantees had been issued
at the date of the execution hereof.
(3) The Trustee, subject to the provisions of Section 12.4
hereof, shall be entitled to receive an Officers' Certificate as
conclusive evidence that any such consolidation or merger, and
any such assumption of Guarantee Obligations, comply with the
provisions of this Section 10.3. Such Officers' Certificate
shall comply with the provisions of Section 12.5.
Section 1.83 Future Guarantors.
The Company shall not permit any Subsidiary individually or
together with all other Subsidiaries that are not Guarantors to
become Material Domestic Subsidiaries unless such Subsidiary and
all such other Subsidiaries, if applicable, simultaneously
executes a supplemental indenture to this Indenture providing for
the Guarantee of the payment of the Notes by such Subsidiary or
Subsidiaries, which Guarantee(s) shall be irrevocable and
unconditional in respect of all principal, premium, if any,
Liquidated Damages, if any, and interest on the Notes on a senior
subordinated basis and shall execute a supplemental indenture
substantially in the form of Exhibit E hereto.
Section 1.84 Release of Guarantors.
(1) Notwithstanding Section 10.3(b), upon the sale or
disposition (whether by merger, stock purchase, asset sale or
otherwise) of a Guarantor (or all or substantially all of its
assets) to an entity which is not a Subsidiary, or the
designation of a Subsidiary to become an Unrestricted Subsidiary,
which transaction is otherwise in compliance with this Indenture
(including, without limitation, the provisions of Section 4.12),
such Guarantor shall be deemed released from its obligations
under its Guarantee of the Notes.
(2) Upon delivery by the Company to the Trustee of an Officer's
Certificate, to the effect that such sale or other disposition or
that such designation was made by the Company in accordance with
the provisions of this Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of
any such Guarantor from its Guarantee Obligations under its
Guarantee. Except as provided in Section 10.3(a), any Guarantor
not released from its Guarantee Obligations under its Guarantee
shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article X.
(3) Notwithstanding the foregoing provisions of this Article X,
(i) any Guarantor whose Guarantee would otherwise be released
pursuant to the provisions of this Section 10.5 may elect, at its
sole discretion, by written notice to the Trustee, to maintain
such Guarantee in effect notwithstanding the event or events that
otherwise would cause the release of such Guarantee (which
election to maintain such Guarantee in effect may be conditional
or for a limited period of time), and (ii) any Subsidiary of the
Company which is not a Guarantor may elect, at its sole
discretion, by
written notice to the Trustee, to become a Guarantor (which election
may be conditional or for a limited period of time).
Section 1.85 Limitation of Guarantor's Liability; Certain
Bankruptcy Events.
(1) Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that
the Guarantee Obligation of such Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for
purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law. To effectuate the foregoing intention, the Holders
and such Guarantor hereby irrevocably agree that the Guarantee
Obligations of such Guarantor under this Article X shall be
limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the Guarantee
Obligations of such other Guarantor under this Article X, result
in the Guarantee Obligations of such Guarantor under the
Guarantee of such Guarantor not constituting a fraudulent
transfer or conveyance.
(2) Each Guarantor hereby covenants and agrees, to the fullest
extent that it may do so under applicable law, that in the event
of the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company, such Guarantor shall not file (or
join in any filing of), or otherwise seek to participate in the
filing of, any motion or request seeking to stay or to prohibit
(even temporarily) execution on the Guarantee Obligations and
hereby waives and agrees not to take the benefit of any such stay
of execution, whether under Section 362 or 105 of the Bankruptcy
Law or otherwise.
Section 1.86 Application of Certain Terms and Provisions to the
Guarantors.
(1) For purposes of any provision of this Indenture which
provides for the delivery by any Guarantor of an Officers'
Certificate and/or an Opinion of Counsel, the definitions of
such terms in Section 1.1 shall apply to such Guarantor as
if references therein to the Company were references to such
Guarantor.
(2) Any request, direction, order or demand which by any
provision of this Indenture is to be made by any Guarantor, shall
be sufficient if evidenced as described in Section 12.2 as if
references therein to the Company were references to such
Guarantor.
(3) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Notes to or on any Guarantor may be
given or served as described in Section 12.2 as if references
therein to the Company were references to such Guarantor.
(1)
(4) Upon any demand, request or application by any Guarantor to
the Trustee to take any action under this Indenture, such
Guarantor shall furnish to the Trustee such certificates and
opinions as are required in Section 12.4 hereof as if all
references therein to the Company were references to such
Guarantor.
Section 1.87 Subordination of Guarantees.
(1) The obligations of each Guarantor under its Guarantee
pursuant to this Article X is subordinated in right of payment to
the prior payment in full in cash of all Senior Debt of such
Guarantor on the same basis as the Notes are subordinated to
Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to
receive and/or retain payments by any of the Guarantors only at
such times as they may receive and/or
retain payments in respect of Notes pursuant to this Indenture,
including Article XI hereof. In the event that the Trustee receives any
Guarantor payment at a time when an officer of the corporate trust
administration of the Trustee has actual knowledge that such payment is
prohibited by the foregoing sentence, such Guarantor payment shall be paid
over and delivered to the holders of the Senior Debt of such Guarantor
remaining unpaid, to the extent necessary to pay in full all such
Senior Debt. In the event that a Holder receives any Guarantor
payment at a time when such payment is prohibited by the
foregoing sentence, such Guarantor payment shall be paid over and
delivered to the holders of the Senior Debt of such Guarantor
remaining unpaid, to the extent necessary to pay in full all such
Senior Debt.
(2) Each Holder of a Note by its acceptance thereof (i)
acknowledge that as of the Issue Date there are no Guarantors,
(ii) agrees to and shall be bound by the provisions of this
Section 10.8, (iii) authorizes and directs the Trustee on the
Holder's behalf to take such action as may be necessary and
appropriate to effectuate the subordination so provided, and (vi)
appoints the Trustee as the Holder's attorney-in-fact for any and
all such purposes.
ARTICLE X
SUBORDINATION
Section 1.88 Notes Subordinate to Senior Debt.
(1) The Company, the Guarantors and each Holder, by its
acceptance of the Notes, agree that (i) the payment of the
principal of and interest on the Notes and (ii) any other payment
in respect of the Notes, including on account of the acquisition
or redemption of the Notes by the Company and the Guarantors
(including, without limitation, pursuant to Sections 4.12 and
4.13 and Article X), as applicable, is subordinated, to the
extent and in the manner provided in this Article XI, to the
prior payment in full in cash of all Senior Debt and that these
subordination provisions are for the benefit of the holders of
Senior Debt.
(2) This Article XI shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of,
or continue to hold, Senior Debt, and such provisions are made
for the benefit of the holders of Senior Debt and such holders
are made obligees hereunder and any one or more of them may
enforce such provisions.
Section 1.89 No Payment on Notes in Certain Circumstances.
(1) No payment (by set-off or otherwise) shall be made by or on
behalf of the Company or the Guarantors, as applicable, on
account of the principal of, premium, if any, or interest (or
Liquidated Damages, if any) on the Notes, or on account of any
other obligation for the payment of money due in respect of the
Notes, or on account of the redemption provisions of the Notes
(including any repurchases of Notes), for cash or property (other
than payments made with Junior Securities or from the trust
described in Sections 8.2 and 8.3 hereof), in the event of a
default in the payment of any principal of, premium, if any, or
interest on, Designated Senior Debt of the Company or such
Guarantor when it becomes due and payable, whether at maturity,
or at a date fixed for prepayment or by declaration of
acceleration or otherwise (a "Payment Default"), unless and until
such Payment Default has been cured or waived or otherwise has
ceased to exist.
(2) Upon (i) the happening of an event of default other than a
Payment Default that permits the holders of Designated Senior
Debt or any representative thereof to declare such Designated
Senior Debt to be due and payable (a "Non-payment Default") and
(ii) written notice of
such event of default specifically referring to this Section 11.2 given
to the Company and the Trustee by the Representative under the Credit
Agreement (a "Payment Notice"), then, unless and until such event of
default has been cured or waived or otherwise has ceased to exist, no
payment (by set-off or otherwise) may be made by or on behalf of
the Company or any Guarantor, as applicable, including the
principal of, premium, if any, or interest on the Notes (or
Liquidated Damages, if any), or on account of the redemption
provisions of the Notes (including any repurchases of any of the
Notes), in any such case, other than payments made with Junior
Securities or from the trust described in Sections 8.2 and 8.3
hereof. Notwithstanding the foregoing, unless the Designated
Senior Debt in respect of which such event of default exists has
been declared due and payable in its entirety within 179 days
after the Payment Notice is delivered as set forth above (the
"Payment Blockage Period") (and such declaration has not been
rescinded or waived), at the end of the Payment Blockage Period,
the Company and the Guarantors shall be required to pay all sums
not paid to the Holders of the Notes during the Payment Blockage
Period due to the foregoing prohibitions and to resume all other
payments as and when due on the Notes. Any number of Payment
Notices may be given; provided, that (i) not more than one
Payment Notice shall be given within a period of any 360
consecutive days, and (ii) no Non-payment Default that existed
upon the date of such Payment Notice or the commencement of such
Payment Blockage Period (whether or not such event of default is
on the same issue of Senior Debt) shall be made the basis for the
commencement of any other Payment Blockage Period (unless such
default shall have been cured or waived for a period of not less
than 120 days).
(3) In furtherance of the provisions of Section 11.1, in the
event that, notwithstanding the foregoing provisions of this
Section 11.2 and the provisions of Section 11.3, any payment or
distribution of assets of the Company or any Guarantor (other
than Junior Securities or from the trust described in Sections
8.2 and 8.3 hereof) shall be received by the Trustee or the
Holders at a time when the Trustee or such Holder, as applicable,
has actual knowledge that such payment or distribution is
prohibited by the foregoing provisions of this Section 11.2 or
the provisions of Section 11.3, such payment or distribution
shall be held in trust for the benefit of the holders of such
Senior Debt, and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of such Senior
Debt remaining unpaid or unprovided for or to their
representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing
any of such Senior Debt may have been issued, ratably according
to the aggregate principal amounts remaining unpaid on account of
such Senior Debt held or represented by each, for application to
the payment of all such Senior Debt remaining unpaid, to the
extent necessary to pay or to provide for the payment of all such
Senior Debt in full in cash or Cash Equivalents or otherwise to
the extent holders accept satisfaction of amounts due by
settlement in other than cash or Cash Equivalents after giving
effect to any concurrent payment or distribution to the holders
of such Senior Debt.
Section 1.90 Notes Subordinate to Prior Payment of All Senior
Debt on Dissolution, Liquidation or Reorganization.
Upon any distribution of the assets of the Company upon any
dissolution, winding up, total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or a similar proceeding
or upon assignment for the benefit of creditors or any
marshalling of assets or liabilities:
(1) the holders of all Senior Debt shall first be entitled to
receive payment in full in cash or Cash Equivalents (or have such
payment duly provided for in accordance with the terms thereof)
or otherwise to the extent holders accept satisfaction of amounts
due by settlement in other than cash or Cash Equivalents before
the Holders are entitled to receive any payment on account of any
Obligation in respect of the Notes, including the principal of,
premium, if any, and interest on the
Notes or Liquidated Damages, if any, pursuant to the Registration Rights
Agreement (other than Junior Securities); and
(2) any payment or distribution of assets of the Company or any
Guarantor of any kind or character from any source, whether in
cash, property or securities (other than Junior Securities) to
which the Holders or the Trustee on behalf of the Holders would
be entitled (by set-off or otherwise), except for the
subordination provisions contained in this Indenture, shall be
paid by the liquidating trustee or agent or other person making
such a payment or distribution directly to the holders of such
Senior Debt or their representative to the extent necessary to
make payment in full (or have such payment duly provided for to
the satisfaction of the Holders of the Senior Debt) on all such
Senior Debt remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Debt.
Section 1.91 Holders to be Subrogated to Rights of Holders of
Senior Debt.
Subject to the payment in full of all Senior Debt as
provided herein, the Holders of Notes shall be subrogated to the
rights of the holders of such Senior Debt to receive payments or
distributions of assets of the Company and any Guarantor
applicable to the Senior Debt until all amounts owing on the
Notes shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of
such Senior Debt by or on behalf of the Company or any Guarantor,
or by or on behalf of the Holders by virtue of this Article XI,
which otherwise would have been made to the Holders shall, as
between the Company or any Guarantor and the Holders, be deemed
to be payment by the Company or any Guarantor or on account of
such Senior Debt, it being understood that the provisions of this
Article XI are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and
the holders of such Senior Debt, on the other hand.
Section 1.92 Obligations of the Company and the Guarantors
Unconditional.
Nothing contained in this Article XI or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as
between the Company and any Guarantor and the Holders, the
obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium,
if any, and interest on (or, if applicable, Liquidated Damages,
if any) the Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of
the Company and the Guarantors other than the holders of the
Senior Debt, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon any default under this
Indenture, subject to the rights, if any, under this Article XI,
of the holders of Senior Debt, including, without limitation,
their right to receive any cash, property or Notes of the Company
and any Guarantor received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article XI or
elsewhere in this Indenture or in the Notes, upon any
distribution of assets of the Company and the Guarantors referred
to in this Article XI, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, and the Holders shall be entitled to rely
upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation
or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XI so long
as such court has been apprised of the provisions of, or the
order, decree or certificate makes reference to, the provisions
of this Article XI. Nothing in this Article XI shall apply to
the claims of, or payments to, the Trustee under or pursuant to
Section 7.7.
Section 1.93 Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.
The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of
any payment to or by the Trustee unless and until a corporate
trust officer of the Trustee or any Paying Agent shall have
received at the addresses for notices set forth in Section 12.2,
no later than two Business Days prior to such payment written
notice thereof specifically referring to this Article XI from the
Company or from one or more holders of Senior Debt or from any
representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, shall be entitled in all respects
conclusively to assume that no such fact exists.
The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a
holder of Senior Debt (or a representative on behalf of such
holder) to establish that such notice has been given by a holder
of Senior Debt or a representative on behalf of such holder. In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person who
is a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article XI, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XI, and if such evidence
is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment or until such time as the Trustee shall be
otherwise satisfied as to the right of such Person to receive
such payment.
Section 1.94 Application by Trustee of Assets Deposited with
It.
Amounts deposited in trust with the Trustee pursuant to and
in accordance with Article VIII shall be for the sole benefit of
Holders and, to the extent (i) the making of such deposit by the
Company shall not be in contravention of any term or provisions
the Credit Agreement or other Senior Debt and (ii) allocated for
the payment of Notes, shall not be subject to the subordination
provisions of this Article XI. Otherwise, any deposit of assets
with the Trustee or the Paying Agent (whether or not in trust)
for the payment of principal of or interest on any Notes shall be
subject to the provisions of Sections 11.1, 11.2, 11.3 and 11.4;
provided, that, if prior to one Business Day preceding the date
on which by the terms of this Indenture any such assets may
become distributable for any purpose (including without
limitation, the payment of either principal of or interest on any
Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided
for in Section 11.6, then the Trustee or such Paying Agent shall
have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be
received by it on or after such date.
Section 1.95 Subordination Rights Not Impaired by Acts or
Omissions of the Company, the Guarantors or Holders of Senior
Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination provisions contained in this Article XI
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or any Guarantor or
by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company or any Guarantor with the
terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Debt may extend, renew, modify or amend the
terms of the Senior Debt or any security therefor and release,
sell or exchange such security and otherwise deal freely with the
Company and the Guarantors, all without affecting the liabilities
and obligations of the parties to this Indenture or the Holders.
The subordination provisions contained in this Indenture are for
the benefit of the holders from time to time of Senior Debt and
may not be rescinded, cancelled, amended or modified in any way
other than any amendment or modification that would not adversely
affect the rights of any holder of Senior Debt or any amendment
or modification that is consented to by each holder of Senior
Debt that would be adversely affected thereby. The subordination
provisions hereof shall continue to be effective or be
reinstated, as the
case may be, if at any time any payment of any
of the Senior Debt is rescinded or must otherwise be returned by
any holder of the Senior Debt upon the insolvency, bankruptcy, or
reorganization of the Company or any Guarantor, or otherwise, all
as though such payment has not been made.
Section 1.96 Holders Authorize Trustee To Effectuate
Subordination of Notes.
Each Holder of the Notes by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate
the subordination provisions contained in this Article XI and to
protect the rights of the Holders pursuant to this Indenture, and
appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company or any Guarantor
(whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company or any
Guarantor), the immediate filing of a claim for the unpaid
balance of his Notes in the form required in said proceedings and
cause said claim to be approved. In the event of any liquidation
or reorganization of the Company or any Guarantor in bankruptcy,
insolvency, receivership or similar proceeding, if the Holders of
the Notes (or the Trustee on their behalf) have not filed any
claim, proof of claim, or other instrument of similar character
necessary to enforce the obligations of the Company or any
Guarantor in respect of the Notes at least thirty (30) days
before the expiration of the time to file the same, then in such
event, but only in such event, the Representatives under the
Credit Agreement or the holders of an aggregate of at least
$5,000,000 principal amount outstanding of any other Senior Debt
or a representative on their behalf may, as an attorney-in-fact
for such Holders, file any claim, proof of claim, or other
instrument of similar character on behalf of such Holders.
Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Senior Debt or their representative to
authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior
Debt or their representative to vote in respect of the claim of
any Holder in any such proceeding. As a condition to taking any
action by the Trustee pursuant to this Section 11.9, the Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may
be incurred thereby.
Section 1.97 Rights of Trustee to Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth
in this Article XI in respect of any Senior Debt at any time held
by it to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 1.98 Article XI Not to Prevent Events of Default.
The failure to make a payment on account of principal of,
premium, if any, or interest (or Liquidated Damages, if any) on
the Notes by reason of any provision of this Article XI shall not
be construed as preventing the occurrence of a Default or an
Event of Default under Section 6.1 or in any way limit the rights
of the Trustee or any Holder to pursue any other rights or
remedies with respect to the Notes.
Section 1.99 No Fiduciary Duty of Trustee to Holders of Senior
Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt, and shall not be liable to any such
holders (other than for its willful misconduct or negligence) if
it shall in good faith mistakenly pay over or distribute to the
Holders of Notes or the Company, any Guarantor or any other
Person, cash, property or Notes to which any holders of Senior
Debt shall be entitled by virtue of this Article XI or otherwise.
Nothing in this Section 11.12 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to
pay such payment over to, the holders of Senior Debt or their
representative. In the event of any conflict between the
fiduciary duty of the Trustee to the Holders of Notes
and any duty to the holders of Senior Debt, the Trustee is expressly
authorized to resolve such conflict in favor of the Holders.
Section 1.100 Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a
payment of any Obligations with respect to the Notes to violate
this Article XI, but failure to give such notice shall not affect
the subordination of the Notes to the Senior Debt as provided in
this Article XI.
ARTICLE XI
MISCELLANEOUS
Section 1.101 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the TIA, the imposed duties
shall control.
Section 1.102 Notices.
(1) Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company:
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Telephone No.: (510) 741-7000
Telecopier No.: (510) 741-5815
Attention: Chief Financial Officer
With a copy (which shall not constitute notice)
to:
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
Telephone No.: (415) 391-0600
Telecopier No.: (415) 395-8095
Attention: Tracy K. Edmonson, Esq.
If to the Trustee:
Norwest Bank Minnesota, N.A.
333 South Grand Avenue, Suite 740
Los Angeles, California 90071
Telephone No.: (213) 253-6320
Telecopier No.: (213) 680-1827
Attention: Jeanie Mar
(2) The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent
notices or communications; provided, that until such time, all
notices under this Indenture to the Trustee shall be sent to both
of the Trustee's addresses set forth above.
(3) All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; when answered back,
if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent
by overnight air courier guaranteeing next day delivery.
(4) Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed
to any Person described in TIA 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with
respect to other Holders.
(5) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
(6) If the Company mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same
time.
Section 1.103 Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA 312(b) with other
Holders with respect to their rights under this Indenture or the
Notes. The Company, any Guarantors, the Trustee, the Registrar
and anyone else shall have the protection of TIA 312(c).
Section 1.104 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee, if required by the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements
set forth in Section 12.5 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action
have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements
set forth in Section 12.5 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants, if
any, have been satisfied.
Section 1.105 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA 314(a)(4)) shall
comply with the provisions of TIA 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied; provided,
however, that with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificate of
public officials.
Section 1.106 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 1.107 No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder (direct or indirect) of the Company
or the Guarantors (or any such successor entity), as such, shall
have any liability for any Obligations of the Company or the
Guarantors under the Notes, the Guarantees or this Indenture or
for any claim based on, in respect of, or by reason of, such
Obligations or their creation, except in their capacity as an
obligor or Guarantor of the Notes in accordance with this
Indenture. Each Holder by accepting a Note waives and releases
all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 1.108 Governing Law.
(1) THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
(2) EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE AND THE NOTES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF
THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR
ANY NOTEHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY AND THE GUARANTORS IN ANY OTHER JURISDICTION.
Section 1.109 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 1.110 Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
Section 1.111 Severability.
In case any one or more of the provisions of this Indenture
or in the Notes or in the Guarantees shall be held invalid,
illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that
all of the provisions hereof shall be enforceable to the full
extent permitted by law.
Section 1.112 Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 1.113 Table of Contents, Headings, etc.
The Table of Contents and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture
and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed
this Indenture as of the date first written above.
THE COMPANY:
BIO-RAD LABORATORIES, INC.
By: /s/ Thomas C. Chesterman
Name: Thomas C. Chesterman
Title:Vice President & Chief Financial Officer
By: /s/ Ronald W. Hutton
Name: Ronald W. Hutton
Title:Treasuer
THE TRUSTEE:
NORWEST BANK MINNESOTA, N.A.
By: /s/Jeanie Mar
Name: Jeanie Mar
Title:Vice President
EXHIBIT A
[FORM OF NOTE]
BIO-RAD LABORATORIES, INC.
11-5/8% [SERIES A] [SERIES B]1 SENIOR SUBORDINATED NOTE DUE 2007
No. CUSIP: __________
$________________
Bio-Rad Laboratories, Inc., a Delaware corporation
(hereinafter called the "Company" which term includes any
successors under this Indenture hereinafter referred to), for
value received, hereby promises to pay to
_________________________, or registered assigns, the principal
sum of _________________________ Dollars, on February 15, 2007.
Interest Payment Dates: February 15 and August 15;
commencing August 15, 2000.
Record Dates: February 1 and August 1.
Reference is made to the further provisions of this Note on
the reverse side, which will, for all purposes, have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
BIO-RAD LABORATORIES, INC.,
a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes described in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By:
Authorized Signatory
Dated:
(Back of Note)
11-5/8% [Series A] [Series B]2 Senior Subordinated Notes due 2007
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]3
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]4
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER
HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO
PREVENT INTEREST FROM ACCRUING ON THIS NOTE.]5
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT, IN CONNECTION WITH EXEMPT RESALES OF THE
NOTES BY WARBURG DILLON READ LLC AND ABN AMRO INCORPORATED (THE
"INITIAL PURCHASERS"), (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB") OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT;
(2) AGREES THAT, IN CONNECTION WITH RESALES AND TRANSFERS OF THE
NOTES OTHER THAN EXEMPT RESALES OF THE NOTES BY THE INITIAL
PURCHASERS, IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING
TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE ISSUER), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902
OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.]6
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Bio-Rad Laboratories, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at 11_% per annum until maturity
and shall pay the Liquidated Damages, if any, payable pursuant to
Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages, if
any, semi-annually on February 15 and August 15 of each year, or
if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on this
Note will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the Issue Date;
provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a Record Date
(defined below) referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be August 15, 2000. The
Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at the rate then in
effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without
regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on
this Note (except defaulted interest) and Liquidated Damages, if
any, to the Persons who are registered Holders of Notes at the
close of business on the February 1 or August 1 next preceding
the Interest Payment Date (each a "Record Date"), even if such
Notes are cancelled after such Record Date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the
Indenture (as defined below) with respect to defaulted interest.
This Note will be payable as to principal, premium, interest and
Liquidated Damages, if any, at the office or agency of the
Company maintained within the City and State of New York for such
purpose, or, at the option of the Company, payment of interest
and Liquidated Damages, if any, may be made by check mailed to
the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of
immediately available funds to an account within the United
States will be required with respect to principal of and
interest, premium and Liquidated Damages, if any, on all Global
Notes. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Norwest Bank
Minnesota, N.A., the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or
any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued this Note under an
Indenture dated as of February 17, 2000 ("Indenture") between the
Company and the Trustee. The terms of this Note include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code 77aaa-77bbbb). This Note is subject to all such terms,
and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes will be limited in aggregate
principal amount to $150,000,000.
5. Optional Redemption.
Except as set forth below, the Notes shall not be
redeemable by the Company.
(1) The Notes shall be redeemable for cash at the option of the
Company, in whole or in part, at any time prior to February 15,
2004, upon not less than 30 days nor more than 60 days prior
notice mailed by first class mail to each Holder at its last
registered address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and
accrued and unpaid interest and Liquidated Damages, if any,
thereon to, the Redemption Date.
(2) The Notes shall be redeemable for cash at the option of the
Company, in whole or in part, at any time on or after February
15, 2004, upon not less than 30 days nor more than 60 days prior
notice mailed by first class mail to each Holder at its last
registered address, at the following redemption prices (expressed
as percentages of the principal amount) if redeemed during the
12-month period commencing February 15 of the years indicated
below, in each case (subject to the right of Holders of record on
a Record Date to receive the corresponding interest due (and the
corresponding Liquidated Damages, if any) on the corresponding
Interest Payment Date that is on or prior to such redemption
date) together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date:
Year Percentage
2004 105.813%
2005 102.906%
2006 100.000%
2007 and thereafter 100.000%
(3) Notwithstanding the provisions of paragraph (a), at any time
or from time to time prior to February 15, 2003, upon any sale of
the common stock of the Company, up to 35% of the aggregate
principal amount of the Notes originally issued under this
Indenture may be redeemed at the option of the Company within 90
days of such sale, on not less than 30 days, but not more than 60
days, prior notice to each Holder of the Notes to be redeemed,
with cash from the Net Cash Proceeds of such sale, at a
redemption price equal to 111.625% of the principal amount
thereof (subject to the right of Holders of record on a Record
Date to receive the corresponding interest (and the corresponding
Liquidated Damages, if any) due on the Interest Payment Date that
is on or prior to such redemption date) together with accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
redemption date; provided, that immediately following such
redemption not less than 65% of the aggregate principal amount of
the Notes originally issued pursuant to this Indenture remain
outstanding.
(4) Notice of redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in integral multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption unless the Company
defaults in such payments due on the redemption date.
6. Repurchase of Notes at the Option of the Holder upon a
Change of Control. In the event that a Change of Control has
occurred, each Holder of Notes will have the right, at such
Holder's option, pursuant to an offer (subject only to conditions
required by applicable law, if any) by the Company, to require
the Company to repurchase all or any part of such Holder's Notes
(provided, that the principal amount of such Notes must be $1,000
or an integral multiple thereof) on a date (the ''Change of
Control Purchase Date'') that is no later than 45 Business Days
after the occurrence of such Change of Control, at a cash price
equal to 101% of the principal amount thereof, together with
accrued and unpaid interest and Liquidated Damages, if any, to
the Change of Control Purchase Date.
7. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a Record
Date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
9. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes or the Guarantees may be
amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding
Notes, and any existing Default or compliance with any provision
of the Indenture, the Notes or the Guarantees may be waived with
the consent of the Holders of a majority in principal amount of
the then outstanding Notes; provided, that no such modification
may, without the consent of Holders of at least 66_% in aggregate
principal amount of Notes at the time outstanding, modify the
provisions (including the defined terms used therein) of Section
4.13 of the
Indenture in a manner adverse to the Holders.
Without the consent of any Holder of a Note, the Indenture, the
Notes or the Guarantees may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation, to
provide for additional Guarantors as set forth in the Indenture
or for the release or assumption of Guarantees in compliance with
the Indenture, to make any change that would provide any
additional rights or benefits to the Holders of the Notes
(including the addition of any Guarantor) or that does not
adversely affect the rights under the Indenture of any such
Holder, to comply with the provisions of the Depositary,
Euroclear or Cedel or the Trustee with respect to the provisions
of the Indenture or the Notes relating to transfers and exchanges
of Notes or beneficial interests therein, or to comply with the
requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA.
10. Defaults and Remedies. The Indenture provides that
each of the following constitutes an Event of Default:
(a) the failure by the Company to pay any installment
of interest (or Liquidated Damages, if any) on the Notes as
and when the same becomes due and payable and the
continuance of any such failure for 30 days;
(b) the failure by the Company to pay all or any part
of the principal, or premium, if any, on the Notes when and
as the same becomes due and payable at maturity, redemption,
by acceleration or otherwise, including, without limitation,
payment of the Change of Control Purchase Price (except as
provided in Section 4.13 of the Indenture), or the Asset
Sale Offer Price, on Notes validly tendered and not properly
withdrawn pursuant to a Change of Control Offer, or Asset
Sale Offer, as applicable (as set forth in Sections 4.13 and
4.12 of the Indenture);
(c) the failure by the Company or any of its
Subsidiaries to observe or perform any other covenant or
agreement contained in the Notes or the Indenture and,
except for the provisions under Sections 4.12, 4.13, 4.15
and 5.1 of the Indenture, the continuance of such failure
for a period of 30 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of
the Notes outstanding;
(d) a default in the Indebtedness of the Company or
any of its Subsidiaries with an aggregate amount outstanding
in excess of $10,000,000 (i) resulting from the failure to
pay principal at maturity or (ii) as a result of which the
maturity of such Indebtedness has been accelerated prior to
its stated maturity;
(e) final unsatisfied judgments not covered by
insurance aggregating in excess of $10,000,000, at any one
time rendered against the Company or any of its Subsidiaries
and not stayed, bonded or discharged within 60 days;
(f) any Guarantee of a Guarantor that is a Significant
Subsidiary (or group of Guarantors that on a combined basis
would constitute a Significant Subsidiary) ceases to be in
full force and effect or becomes unenforceable or invalid or
is declared null and void (other than in accordance with the
terms of the Guarantee) or any Guarantor that is a
Significant Subsidiary (or group of Guarantors that on a
combined basis would constitute a Significant Subsidiary)
denies or disaffirms its Obligations under its Guarantee;
(g) a court having jurisdiction in the premises enters
a decree or order for (i) relief in respect of the Company
or any Significant Subsidiary in an involuntary case under
any applicable Bankruptcy Law now or hereafter in effect,
(ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company
or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any Significant
Subsidiary and, in each case, such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days; or
(h) the Company or any Significant Subsidiary (i)
commences a voluntary case under any applicable Bankruptcy
Law now or hereafter in effect, or consents to the entry of
an order for relief in an involuntary case under any such
law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all
of the property and assets of the Company or any Significant
Subsidiary or (iii) effects any general assignment for
benefit of creditors.
11. Subordination. The Notes and the Guarantees are
subordinated in right of payment, to the extent and in the manner
provided in Article XI and Section 10.8 of the Indenture, to the
prior payment in full of all Senior Debt. The Company agrees,
and each Holder by accepting a Note consents and agrees, to the
subordination provided in the Indenture and authorizes the
Trustee to give it effect.
12. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
13. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder (direct
or indirect) of the Company or the Guarantors (or any such
successor entity), as such, shall have any liability for any
Obligations of the Company or the Guarantors under the Notes, the
Guarantees or this Indenture or for any claim based on, in
respect of, or by reason of, such Obligations or their creation,
except in their capacity as an obligor or Guarantor of the Notes
in accordance with this Indenture. Each Holder by accepting a
Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
14. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
15. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
16. Additional Rights of Holders of Transfer Restricted
Notes.7 In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Transferred Restricted Notes
shall have all the rights set forth in the Registration Rights
Agreement dated as of the date of the Indenture, between the
Company and the Initial Purchasers (the "Registration Rights
Agreement").
17. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed
thereon, and any such redemption shall not be affected by any
defect in or omission of such numbers.
18. Notation of Guarantee. As more fully set forth in the
Indenture, the Company's obligations under the Notes shall be
guaranteed, to the extent permitted by law, on a senior
subordinated basis by each of the Guarantors that from time to
time shall be required to execute a supplemental indenture in
accordance with the provisions of Section 10.4 of the Indenture.
19. Governing Law.
(a) THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) EACH OF THE COMPANY AND THE GUARANTORS HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH
OF THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY NOTEHOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY
AND THE GUARANTORS IN ANY OTHER JURISDICTION.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: Chief Financial Officer
Telephone No.: (510) 741-7000
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign
and transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*
*NOTICE: The Signature must be guaranteed by an Institution
which is a member of one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (INSP.); (iii) The Stock Exchange Medallion Program
(SEEP); or (iv) in such other guarantee program acceptable to the
Trustee.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.12 or 4.13 of the Indenture, check
the box below:
Section 4.12 Section 4.13
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.12 or Section 4.13 of the
Indenture, state the amount you elect to have purchased (in
denominations of $1,000 only, except if you have elected to have
all of your Notes purchased): $___________
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:______________
Signature Guarantee*
*NOTICE: The Signature must be guaranteed by an Institution
which is a member of one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (INSP.); (iii) The Stock Exchange Medallion Program
(SEEP); or (iv) in such other guarantee program acceptable to the
Trustee.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Notes or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
Principal
Amount of Amount of Amount of this Signature
decrease Increase Global Note of authorized
in Principal in Principal following officer of
Date of s Amount of this Amount of this such decrease Trustee or Note
Exchange Global Note Global Note (or increase) Custodian
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: Chief Financial Officer
Norwest Bank Minnesota, N.A.
333 South Grand Avenue, Suite 740
Los Angeles, California 90071
Attention: Jeanie Mar
Re: 11-5/8% Senior Subordinated Notes due 2007
Dear Sirs:
Reference is hereby made to the Indenture, dated as of
February 17, 2000 (the "Indenture"), between Bio-Rad
Laboratories, Inc., as issuer (the "Company"), and Norwest Bank,
Minnesota, N.A., as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the
Indenture. ______________, (the "Transferor") owns and proposes
to transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such
Note[s] or interests (the "Transfer"), to __________ (the
"Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a
beneficial interest in the 144A Global Note or a
Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the
Transferor hereby further certifies that the
beneficial interest or Definitive Note is being
transferred to a Person that the Transferor
reasonably believed and believes is purchasing the
beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect
to which such Person exercises sole investment
discretion, and such Person and each such account
is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities
laws of any State of the United States. Upon
consummation of the proposed Transfer in
accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed
on the 144A Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global
Note or a Definitive Note pursuant to Regulation
S. The Transfer is being effected pursuant to and
in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is
not being made to a person in the United States
and (x) at the time the
buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the
Transferee was outside the United States or (y)
the transaction was executed in, on or through the
facilities of a designated offshore securities
market and neither such Transferor nor any Person
acting on its behalf knows that the transaction
was prearranged with a buyer in the United States,
(ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the
expiration of the Distribution Compliance Period,
the transfer is not being made to a U.S. Person or
for the account or benefit of a U.S. Person (other
than an Initial Purchaser) and the interest
transferred will be held immediately thereafter
through Euroclear or Cedel. Upon consummation of
the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. Check and complete if Transferee will take
delivery of a beneficial interest in a Definitive
Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial
interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any
applicable blue sky securities laws of any State
of the United States, and accordingly the
Transferor hereby further certifies that (check
one):
(a) Such Transfer is being effected
pursuant to and in accordance with Rule
144 under the Securities Act; or
(b) Such Transfer is being effected to
the Company or a subsidiary thereof; or
(c) Such Transfer is being effected
pursuant to an effective registration
statement under the Securities Act and
in compliance with the prospectus
delivery requirements of the Securities
Act; or
(d) such Transfer is being effected to
an Institutional Accredited Investor and
pursuant to an exemption from the
registration requirements of the
Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not
engaged in any general solicitation
within the meaning of Regulation D under
the Securities Act and the Transfer
complies with the transfer restrictions
applicable to beneficial interests in a
Restricted Global Note or Restricted
Definitive Notes and the requirements of
the exemption claimed, which
certification is supported by (1) a
certificate executed by the Transferee
in a form of Exhibit D to the Indenture
and (2) if such Transfer is in respect
of a principal amount of Notes at the
time of transfer of less than $250,000,
an Opinion of Counsel provided by the
Transferor or the
Transferee (a copy of which the Transferor has
attached to this certification and provided to the
Company, which has confirmed its
acceptability), to the effect that such
Transfer is in compliance with the
Securities Act. Upon consummation of
the proposed transfer in accordance with
the terms of the Indenture, the
Definitive Note will be subject to the
restrictions on transfer enumerated in
the Private Placement Legend printed on
the Definitive Notes and in the
Indenture and the Securities Act.
4. Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or
of an Unrestricted Definitive Note.
(a) Check if Transfer is Pursuant to Rule
144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144
under the Securities Act and in compliance
with the transfer restrictions contained in
the Indenture and any applicable blue sky
securities laws of any State of the United
States and (ii) the restrictions on transfer
contained in the Indenture and the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture,
the transferred beneficial interest or
Definitive Note will no longer be subject to
the restrictions on transfer enumerated in
the Private Placement Legend printed on the
Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture and the
Securities Act.
(b) Check if Transfer is Pursuant to
Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act
and in compliance with the transfer
restrictions contained in the Indenture and
any applicable blue sky securities laws of
any State of the United States and (ii) the
restrictions on transfer contained in the
Indenture and the Private Placement Legend
are not required in order to maintain
compliance with the Securities Act. Upon
consummation of the proposed Transfer in
accordance with the terms of the Indenture,
the transferred beneficial interest or
Definitive Note will no longer be subject to
the restrictions on transfer enumerated in
the Private Placement Legend printed on the
Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture and the
Securities Act.
(c) Check if Transfer is Pursuant to Other
Exemption. (i) The Transfer is being
effected pursuant to and in compliance with
an exemption from the registration
requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions
contained in the Indenture and any applicable
blue sky securities laws of any State of the
United States and (ii) the restrictions on
transfer contained in the Indenture and the
Private Placement Legend are not required in
order to maintain compliance with the
Securities Act. Upon consummation of the
proposed Transfer in accordance with the
terms of the Indenture, the transferred
beneficial interest or Definitive Note will
not be subject to the restrictions on
transfer enumerated in the Private Placement
Legend printed
on the Restricted Global Notes or Restricted Definitive
Notes and in the Indenture.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
Dated:
[Insert Name of Transferor]
By:
Name:
Title:
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _______), or
(ii) Regulation S Global Note (CUSIP ),
or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP ), or
(ii) Regulation S Global Note (CUSIP ), or
(iii) Unrestricted Global Note (CUSIP
); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: Chief Financial Officer
Norwest Bank Minnesota, N.A.
333 South Grand Avenue, Suite 740
Los Angeles, California 90071
Attention: Jeanie Mar
Re: 11-5/8% Senior Subordinated Notes due 2007
Dear Sirs:
Reference is hereby made to the Indenture, dated as of
February 17, 2000 (the "Indenture"), between Bio-Rad
Laboratories, Inc., as issuer (the "Company") and party thereto
and Norwest Bank Minnesota, N.A., as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them
in the Indenture.
________________________________, (the "Owner") owns and
proposes to exchange the Note[s] or interest in such Note[s]
specified herein, in the principal amount of
$____________________________________ in such Note[s] or
interests (the "Exchange"). In connection with the Exchange, the
Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive
Notes or Beneficial Interests in an Unrestricted Global Note.
(a) Check if Exchange is from beneficial
interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an
Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired
for the Owner's own account without transfer,
(ii) such Exchange has been effected in
compliance with the transfer restrictions
applicable to the Global Notes and pursuant
to and in accordance with the United States
Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the
Private Placement Legend are not required in
order to maintain compliance with the
Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is
being acquired in compliance with any
applicable blue sky securities laws of any
State of the United States.
(b) Check if Exchange is from beneficial
interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection
with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner
hereby certifies (i) the Definitive Note is
being acquired for the Owner's own account
without transfer, (ii) such Exchange
has been effected in compliance with the transfer
restrictions applicable to the Restricted
Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the
restrictions on transfer contained in the
Indenture and the Private Placement Legend
are not required in order to maintain
compliance with the Securities Act and (iv)
the Definitive Note is being acquired in
compliance with any applicable blue sky
securities laws of any State of the United
States.
(c) Check if Exchange is from Restricted
Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with
the Owner's Exchange of a Restricted
Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby
certifies (i) the beneficial interest is
being acquired for the Owner's own account
without transfer, (ii) such Exchange has been
effected in compliance with the transfer
restrictions applicable to Restricted
Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the
restrictions on transfer contained in the
Indenture and the Private Placement Legend
are not required in order to maintain
compliance with the Securities Act and (iv)
the beneficial interest is being acquired in
compliance with any applicable blue sky
securities laws of any State of the United
States.
(d) Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive
Note. In connection with the Owner's
Exchange of a Restricted Definitive Note for
an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the
Owner's own account without transfer, (ii)
such Exchange has been effected in compliance
with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act,
(iii) the restrictions on transfer contained
in the Indenture and the Private Placement
Legend are not required in order to maintain
compliance with the Securities Act and (iv)
the Unrestricted Definitive Note is being
acquired in compliance with any applicable
blue sky securities laws of any State of the
United States.
2. Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes
(a) Check if Exchange is from beneficial
interest in a Restricted Global Note to
Restricted Definitive Note. In connection
with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a
Restricted Definitive Note with an equal
principal amount, the Owner hereby certifies
that the Restricted Definitive Note is being
acquired for the Owner's own account without
transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note
issued will continue to be subject to the
restrictions on transfer enumerated in the
Private Placement Legend printed on the
Restricted Definitive Note and in the
Indenture and the Securities Act.
(b) Check if Exchange is from Restricted
Definitive Note to beneficial interest in a
Restricted Global Note. In connection with
the Exchange of the
Owner's Restricted Definitive Note for a beneficial
interest in the: [CHECK ONE] 144A Global Note or
Regulation S Global Note with an equal
principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired
for the Owner's own account without transfer
and (ii) such Exchange has been effected in
compliance with the transfer restrictions
applicable to the Restricted Global Notes and
pursuant to and in accordance with the
Securities Act, and in compliance with any
applicable blue sky securities laws of any
State of the United States. Upon
consummation of the proposed Exchange in
accordance with the terms of the Indenture,
the beneficial interest issued will be
subject to the restrictions on transfer
enumerated in the Private Placement Legend
printed on the relevant Restricted Global
Note and in the Indenture and the Securities
Act.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
[Insert Name of Owner]
By:
Name:
Title:
Dated:
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: Chief Financial Officer
Norwest Bank Minnesota, N.A.
33 South Grand Avenue, Suite 740
Los Angeles, California 90071
Attention: Jeanie Mar
Re: 11-5/8% Senior Subordinated Notes due 2007
Dear Sirs:
Reference is hereby made to the Indenture, dated as of
February 17, 2000 (the "Indenture"), between Bio-Rad
Laboratories, Inc., as issuer (the "Company") and party thereto
and Norwest Bank Minnesota, N.A., as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them
in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of: (a) a beneficial interest in a
Global Note, or (b) a Definitive Note, we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the
Notes and any interest therein may not be offered or sold except
as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any
Guarantor or any of their respective subsidiaries, (B) in
accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed
letter substantially in the form of this letter and, if the
proposed transfer is in respect of an aggregate principal amount
of Notes of less than $250,000, an Opinion
of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside
the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the provisions of Rule
144 under the Securities Act, (F) in accordance with another
exemption from the registration requirements of the Securities
Act (and based upon an opinion of counsel acceptable to the
Company) or (G) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note from us in a transaction
meeting the requirements of clauses (A) through (F) of this
paragraph a notice advising such purchaser that resales thereof
are restricted as stated herein.
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to
furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the
Notes purchased by us will bear a legend to the foregoing effect.
We further understand that any subsequent transfer by us of the
Notes or beneficial interest therein acquired by us must be
effected through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest
therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters
covered hereby.
Dated:
[Insert Name of Accredited Investor]
By:
Name:
Title:
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSIDIARY GUA
RANTORS
Supplemental Indenture (this "Supplemental Indenture"),
dated as of ________ __, ____, among
___________________________________, (the "Guaranteeing
Subsidiary"), a subsidiary of Bio-Rad Laboratories, Inc. (or its
permitted successor), a Delaware corporation (the "Company"), the
Company, the Guarantors (as defined in the Indenture referred to
herein) party thereto and Norwest Bank Minnesota, N.A., as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture (the "Indenture"), dated as of
February 17, 2000, providing for the issuance of 11_% Senior
Subordinated Notes due 2007 (the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances Subsidiaries of the Company are required to execute
and deliver to the Trustee a supplemental indenture pursuant to
which such Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes and the Indenture on the
terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, the Guaranteeing Subsidiary and the Trustee
mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein
without definition shall have the meanings assigned to them in
the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary
irrevocably and unconditionally guarantees the Guarantee
Obligations, which include (i) the due and punctual payment of
the principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes, whether at maturity, by
acceleration, call for redemption, upon a Change of Control
Offer, upon an Asset Sale Offer or otherwise, the due and
punctual payment of interest on the overdue principal and
premium, if any, and (to the extent permitted by law) interest on
any interest on the Notes, and payment of expenses, and the due
and punctual performance of all other obligations of the Company,
to the Holders or the Trustee all in accordance with the terms
set forth in Article X of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any such
other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by
acceleration, call for redemption, upon a Change of Control
Offer, upon an Asset Sale Offer or otherwise, and (iii) the
payment of any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee in enforcing any rights
under this Guarantee.
The obligations of Guaranteeing Subsidiary to the Holders
and to the Trustee pursuant to this Subsidiary Guarantee and the
Indenture are expressly set forth in Article X of the Indenture
and reference is hereby made to such Indenture for the precise
terms of this Subsidiary Guarantee.
No past, present or future director, officer, employee,
incorporator or stockholder (direct or indirect) of the
Guarantors (or any such successor entity), as such, shall have
any liability for any Obligations of the Guarantors under this
Subsidiary Guarantees or the Indenture or for any claim based on,
in respect of, or by reason of, such Obligations or their
creation, except in their capacity as an obligor or Guarantor of
the Notes in accordance with the Indenture.
This is a continuing Guarantee and shall remain in full
force and effect and shall be binding upon the Guaranteeing
Subsidiary and its successors and assigns until full and final
payment of all of the Company's obligations under the Notes and
Indenture or until released in accordance with the Indenture and
shall inure to the benefit of the successors and assigns of the
Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee
of payment and not of collectibility.
The Obligations of the Guaranteeing Subsidiary under its
Subsidiary Guarantee shall be limited to the extent necessary to
insure that it does not constitute a fraudulent conveyance under
applicable law.
THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
3. NEW YORK LAW TO GOVERN.
(a) THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW.
(b) EACH OF THE COMPANY AND THE GUARANTORS HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH
OF THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY NOTEHOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY
AND THE GUARANTORS IN ANY OTHER JURISDICTION.
4. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same
agreement.
5. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as
of the date first above written.
THE COMPANY:
BIO-RAD LABORATORIES, INC.
By:
Name:
Title:
By:
Name:
Title:
THE GUARANTOR[S]:
[ ]
By:
Name:
Title:
[ ]
By:
Name:
Title:
TRUSTEE:
NORWEST BANK MINNESOTA, N.A.
By:
Name:
Title: