EXECUTION COPY
THE COOPER COMPANIES, INC.
10% SENIOR SUBORDINATED SECURED NOTES DUE 2003
(TO BE ISSUED IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $21,875,000 PLUS
SUCH ADDITIONAL AGGREGATE PRINCIPAL AMOUNT OF NOTES ISSUED AS A RESULT OF
ROUNDING PURSUANT TO THE TERMS OF THE EXCHANGE OFFER)
- ----------------------------------------------------------
INDENTURE
DATED AS OF JANUARY 6, 1994
- ----------------------------------------------------------
IBJ SCHRODER BANK & TRUST COMPANY
TRUSTEE
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- ----------------------------------------------------------------------------------------------- -----------------
310 (a)(1)................................................................................... 7.10
(a)(2)................................................................................... 7.10
(a)(3)................................................................................... N.A.
(a)(4)................................................................................... N.A.
(a)(5)................................................................................... 7.10
(b)...................................................................................... 7.10
(c)...................................................................................... N.A.
311 (a)...................................................................................... 7.11
(b)...................................................................................... 7.11
(c)...................................................................................... N.A.
312 (a)...................................................................................... 2.05
(b)...................................................................................... 12.03
(c)...................................................................................... 12.03
313 (a)...................................................................................... 7.06
(b)(1)................................................................................... N.A.
(b)(2)................................................................................... 7.06
(c)...................................................................................... 4.02, 7.06, 12.02
(d)...................................................................................... 7.06
314 (a)...................................................................................... 4.02, 12.02
(b)...................................................................................... N.A.
(c)(1)................................................................................... 12.04
(c)(2)................................................................................... 12.04
(c)(3)................................................................................... 4.02
(d)...................................................................................... 11.05
(e)...................................................................................... 4.02, 12.05
(f)...................................................................................... N.A.
315 (a)...................................................................................... 7.01
(b)...................................................................................... 7.05, 12.02
(c)...................................................................................... 7.01
(d)...................................................................................... 7.01
(e)...................................................................................... 6.11
316 (a)(last sentence)....................................................................... N.A.
(a)(1)(A)................................................................................ 6.05
(a)(1)(B)................................................................................ 6.04
(a)(2)................................................................................... N.A.
(b)...................................................................................... 6.07
(c)...................................................................................... 9.04
317 (a)(1)................................................................................... 6.08
(a)(2)................................................................................... 6.09
(b)...................................................................................... 2.04
318 (a)...................................................................................... 12.01
(b)...................................................................................... N.A.
(c)...................................................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.................................................................................. 1
Section 1.02. Other Definitions............................................................................ 8
Section 1.03. Incorporation by Reference of Trust Indenture Act............................................ 9
Section 1.04. Rules of Construction........................................................................ 9
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.............................................................................. 10
Section 2.02. Execution and Authentication................................................................. 10
Section 2.03. Registrar and Paying Agent................................................................... 10
Section 2.04. Paying Agent to Hold Money in Trust.......................................................... 11
Section 2.05. Lists of Holders of the Notes................................................................ 11
Section 2.06. Transfer and Exchange........................................................................ 11
Section 2.07. Replacement Notes............................................................................ 12
Section 2.08. Outstanding Notes............................................................................ 12
Section 2.09. Treasury Notes............................................................................... 12
Section 2.10. Temporary Notes.............................................................................. 13
Section 2.11. Cancellation................................................................................. 13
Section 2.12. Defaulted Interest........................................................................... 13
Section 2.13. CUSIP Number................................................................................. 13
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee........................................................................... 14
Section 3.02. Selection of Notes to Be Redeemed............................................................ 14
Section 3.03. Notice of Redemption......................................................................... 14
Section 3.04. Effect of Notice of Redemption............................................................... 15
Section 3.05. Deposit of Redemption Price.................................................................. 15
Section 3.06. Notes Redeemed in Part....................................................................... 16
Section 3.07. Optional Redemption.......................................................................... 16
Section 3.08. Mandatory Redemption......................................................................... 16
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes............................................................................. 17
Section 4.02. SEC Reports, Financial Reports............................................................... 17
Section 4.03. Compliance Certificate....................................................................... 18
Section 4.04. Taxes........................................................................................ 18
Section 4.05. Stay, Extension and Usury Laws............................................................... 19
Section 4.06. Limitation on Restricted Payments............................................................ 19
Section 4.07. Limitation On Indebtedness................................................................... 21
Section 4.08. Maintenance of Properties.................................................................... 23
Section 4.09. Limitation on Transactions with Affiliates................................................... 23
Section 4.10. Limitation on Ranking of Future Indebtedness................................................. 24
Section 4.11. Board of Directors........................................................................... 24
Section 4.12. Corporate Existence.......................................................................... 24
Section 4.13. Change of Control............................................................................ 24
Section 4.14. Money for Security Payments to be Held in Trust.............................................. 26
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.................................................................. 26
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................................................ 27
Section 6.02. Acceleration................................................................................. 29
Section 6.03. Other Remedies............................................................................... 29
Section 6.04. Waiver of Past Defaults...................................................................... 29
Section 6.05. Control by Majority.......................................................................... 29
Section 6.06. Limitation on Suits.......................................................................... 29
Section 6.07. Rights of Holders of Notes to Receive Payment................................................ 30
Section 6.08. Collection Suit by Trustee................................................................... 30
Section 6.09. Trustee May File Proofs of Claim............................................................. 30
Section 6.10. Priorities................................................................................... 31
Section 6.11. Undertaking for Costs........................................................................ 31
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee............................................................................ 31
Section 7.02. Rights of Trustee............................................................................ 32
Section 7.03. Individual Rights of Trustee................................................................. 33
Section 7.04. Trustee's Disclaimer......................................................................... 33
Section 7.05. Notice of Defaults........................................................................... 33
Section 7.06. Reports by Trustee to Holders of the Notes................................................... 33
Section 7.07. Compensation and Indemnity................................................................... 34
Section 7.08. Replacement of Trustee....................................................................... 34
Section 7.09. Successor Trustee by Merger, etc............................................................. 35
Section 7.10. Eligibility; Disqualification................................................................ 35
Section 7.11. Preferential Collection of Claims Against Company............................................ 35
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance..................................... 36
Section 8.02. Legal Defeasance and Discharge............................................................... 36
Section 8.03. Covenant Defeasance.......................................................................... 36
Section 8.04. Conditions to Legal or Covenant Defeasance................................................... 37
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.............................................................. 38
Section 8.06. Repayment to Company......................................................................... 38
Section 8.07. Reinstatement................................................................................ 39
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.......................................................... 39
Section 9.02. With Consent of Holders of Notes............................................................. 40
Section 9.03. Compliance with Trust Indenture Act.......................................................... 41
Section 9.04. Revocation and Effect of Consents............................................................ 41
Section 9.05. Notation on or Exchange of Notes............................................................. 41
Section 9.06. Trustee to Sign Amendments, etc.............................................................. 41
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.................................................................... 42
Section 10.02. Certain Definitions......................................................................... 42
Section 10.03. Liquidation; Dissolution; Bankruptcy........................................................ 42
Section 10.04. Default on Senior Debt...................................................................... 43
Section 10.05. Acceleration of Securities.................................................................. 43
Section 10.06. When Distribution Must Be Paid Over......................................................... 43
Section 10.07. Notice by Company........................................................................... 44
Section 10.08. Subrogation................................................................................. 44
Section 10.09. Relative Rights............................................................................. 44
Section 10.10. Subordination May Not Be Impaired by Company................................................ 45
Section 10.11. Distribution or Notice to Representative.................................................... 45
Section 10.12. Rights of Trustee and Paying Agent.......................................................... 45
Section 10.13. Priority of Rights with Respect to Collateral............................................... 45
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01. Pledge Agreement............................................................................ 45
Section 11.02. Recording and Opinions...................................................................... 46
Section 11.03. Disposition of Collateral Without Release................................................... 46
Section 11.04. Release of Collateral Upon Satisfaction of HGA Consolidated Cash Flow Test.................. 48
Section 11.05. Trust Indenture Act Requirements............................................................ 49
Section 11.06. Authorization of Actions to Be Taken by the Trustee Under the Pledge Agreement.............. 49
Section 11.07. Authorization of Receipt of Funds by the Trustee
Under the Pledge Agreement................................................................................. 50
Section 11.08. Termination of Security Interest............................................................ 50
Section 11.09. Cooperation of Trustee...................................................................... 50
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls................................................................ 50
Section 12.02. Notices..................................................................................... 50
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes........................................................................................... 52
Section 12.04. Certificate and Opinion as to Conditions Precedent.......................................... 52
Section 12.05. Statements Required in Certificate or Opinion............................................... 52
Section 12.06. Rules by Trustee and Agents................................................................. 52
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.................... 52
Section 12.08. Governing Law............................................................................... 53
Section 12.09. No Adverse Interpretation of Other Agreements............................................... 53
Section 12.10. Successors.................................................................................. 53
Section 12.11. Severability................................................................................ 53
Section 12.12. Counterpart Originals....................................................................... 53
Section 12.13. Table of Contents, Headings, etc............................................................ 53
EXHIBITS
Exhibit A FORM OF NOTE
INDENTURE dated as of January 6, 1994 between The Cooper Companies, Inc., a
Delaware corporation (the 'Company'), and IBJ Schroder Bank & Trust Company,
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 10% Senior
Subordinated Secured Notes due 2003 (the 'Notes'):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
'Acquired Debt' means, with respect to any specified Person, Indebtedness
of any other Person existing at the time such other Person merged with or into
or became a Subsidiary of such specified Person, Indebtedness of any other
Person assumed in connection with the acquisition of assets from such other
Person and Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary of such
specified Person or the acquisition of assets from such other Person, as the
case may be.
'Adjusted Net Worth' of any Person means, as of any date for which the
determination thereof is to be made, the Consolidated Net Worth of such Person,
plus, without duplication, any preferred stock, at its value in accordance with
GAAP, of such Person which is not Disqualified Stock and which is not
exchangeable or convertible into a debt security of such Person or any of its
Subsidiaries at the option of the holders of such equity security prior to the
date on which the Notes mature, and less any amount included in such
Consolidated Net Worth attributable to preferred stock, or any other equity
security of such Person, which is Disqualified Stock or which is exchangeable or
convertible into a debt security of such Person or any of its Subsidiaries at
the option of the holders of such equity security prior to the date on which the
Notes mature.
'Affiliate' of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, 'control'
(including, with correlative meanings, the terms 'controlling,' 'controlled by'
and 'under common control with'), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting seacurities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
'Agent' means any Registrar, Paying Agent or co-registrar.
'Appraisal' means, when used with respect to the valuation of any Property
interest, an appraisal prepared by an Appraiser as to the Fair Value of such
Property at any given date.
'Appraiser' means an independent investment banking firm, engineer,
appraiser or other Person selected by the Company and satisfactory to the
Trustee that is in the business of appraising or determining the fair market
value of Property of the type to be appraised.
'Board of Directors' means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
'Business Day' means any day other than a Legal Holiday.
'Capital Stock' means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock, whether common or
preferred.
'Cash Equivalents' means (i) Government Securities, (ii) time deposits and
certificates of deposit of any commercial bank organized in the United States
having capital and surplus in excess of $100,000,000 with a maturity date not
more than one year from the date of acquisition, (iii) repurchase obligations
with a term of not more than thirty days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) direct obligations issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing within ninety days
after the date of acquisition thereof, (v) commercial paper issued by the parent
corporation of any commercial bank organized in the United States having capital
and surplus in excess of $100,000,000 and commercial paper issued by others
having a rating of A-2 or higher from Standard & Poor's Corporation or P-2 or
higher from Moody's Investors Service, Inc. or, in the case of a foreign
Subsidiary of the Company, the equivalent rating from a foreign rating agency in
the applicable foreign country (or, if at any time neither Standard & Poor's
Corporation nor Moody's Investors Service, Inc. nor, in the case of a foreign
Subsidiary of the Company, a foreign rating agency, shall be rating such
obligations, then from such other rating services recognized in the United
States or, in the case of a foreign Subsidiary of the Company, in the applicable
foreign country, acceptable to the Trustee) at the time of acquisition, (vi)
bonds, debentures, notes or other corporate debt securities having a rating of
BB or higher from Standard and Poor's Corporation or Ba2 or higher from Moody's
Investors Service, Inc. or, in the case of a foreign Subsidiary of the Company,
the equivalent rating from a foreign rating agency in the applicable foreign
country (or, if at any time neither Standard & Poor's Corporation nor Moody's
Investors Service, Inc. nor, in the case of a foreign Subsidiary of the Company,
a foreign rating agency, shall be rating such obligations, then from such other
rating services recognized in the United States or, in the case of a foreign
Subsidiary of the Company, in the applicable foreign country, acceptable to the
Trustee) at the time of acquisition, (vii) overnight bank deposits and bankers'
acceptances at any commercial bank organized in the United States having capital
and surplus in excess of $100,000,000, (viii) deposits available for withdrawal
on demand with commercial banks organized in the United States having capital
and surplus in excess of $50,000,000 and (ix) investments in mutual funds
substantially all of whose assets comprise securities of the types described in
clauses (i) through (viii).
'Cash Flow Coverage Ratio' means with respect to any Person for any period,
the ratio of the Consolidated Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period.
'Change of Control' shall be deemed to have occurred if (i) any 'person'
(as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) other
than the Company or a Subsidiary or any employee benefit plan sponsored by the
Company or any Subsidiary shall become the beneficial owner (within the meaning
of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing in excess of 50% of the combined voting power of the
Company's then outstanding securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company cease for any reason to constitute a
majority thereof unless each new director was elected by, or on the
recommendation of, a majority of the directors then still in office who were
directors at the beginning of the period. Notwithstanding the foregoing, a
Change of Control shall not be deemed to have occurred if the transaction or
event constituting a Change of Control shall have been approved by a majority of
the members of the Board in office immediately prior to such transaction or
event.
'Collateral' means the Property which is subject to the Liens created by
the Collateral Documents, including, initially, the Pledged HGA Securities and
the Pledged CooperSurgical Securities.
'Collateral Documents' means the Pledge Agreement and any other document
pursuant to which a Lien is created as security for the obligations of the
Company in favor of the Trustee for the benefit of the Holders.
'Consolidated Cash Flow' means, with respect to any Person for any period,
income from continuing operations before extraordinary items for such Person and
its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, plus, to the extent deducted in computing such income from
continuing operations before extraordinary items, (a) interest expense, whether
or not paid during the period, (b) provisions for taxes based on income, (c)
depreciation of property, plant and equipment, and (d) amortization of
intangible assets.
'Consolidated Net Income' means, with respect to any Person for any period,
the aggregate of the net income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided,
that there shall be excluded therefrom (a) items classified as extraordinary,
nonrecurring or unusual gains and losses, and the related tax effects, each
determined in accordance with GAAP, (b) the net income of any other Person
acquired in a pooling of interests
2
transaction accrued prior to the date it becomes a Subsidiary of such Person or
is merged or consolidated with such Person or any Subsidiary thereof, and (c)
the net income of any other Person other than a Subsidiary of such Person,
except to the extent of the cash dividends or distributions actually paid
(without any repayment obligation) to such Person or a Subsidiary of such Person
by such other Person.
'Consolidated Net Worth' means, with respect to any Person, the
consolidated stockholders' equity of such Person and its Subsidiaries,
determined in accordance with GAAP.
'CooperSurgical' means CooperSurgical, Inc., a Delaware corporation and a
Subsidiary of the Company.
'Corporate Trust Office of the Trustee' shall be at the address of the
Trustee specified in Section 12.02 or such other address as to which the Trustee
may give notice to the Company.
'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 under the Indenture.
'Disqualified Stock' means any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
on which the Notes mature.
'Equity Interests' means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
'Exchange Act' means the Securities Exchange Act of 1934, as amended.
'Exchange Offer' means the Company's offer to exchange up to $30,000,000
aggregate principal amount of its 10-5/8% Convertible Subordinated Reset
Debentures due 2005 (the 'Old Debentures') for $725 principal amount of Notes
and $145 in cash per $1,000 principal amount of Old Debentures upon the terms
and subject to the conditions set forth in the Company's Amended and Restated
Offer to Exchange and Consent Solicitation dated December 15, 1993, as amended
or supplemented from time to time.
'Existing Indebtedness' means the Old Debentures, Notes and any other
Indebtedness of the Company and its Subsidiaries in existence on the date of
this Indenture, until such amounts are repaid.
'Fair Value' means, when used in connection with the valuation of any
Property at any given date, the price which could be negotiated for such
Property in an arm's length transaction, for cash, between a willing seller and
a willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction, as determined by an Appraiser.
'Fixed Charges' means, with respect to any Person for any period, the
consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued, to the extent such expense was reflected in
computing income from continuing operations before extraordinary items for such
Person and its Subsidiaries, on a consolidated basis, in accordance with GAAP,
but excluding amortization of deferred financing fees; provided, however, that
for the purpose of calculating the Cash Flow Coverage Ratio of HGA under clause
(g) of the last paragraph of Section 4.07, Fixed Charges shall exclude interest
expense relating to Indebtedness of HGA or any of its Subsidiaries to the
Company or any of its Subsidiaries and shall be deemed to include the Company's
aggregate interest expense relating to the Notes.
'Foothill' means Foothill Capital Corporation, a California corporation.
'Foothill Indebtedness' means Indebtedness evidenced by that certain
Amended and Restated Secured Promissory Note, dated May 29, 1992, as amended,
restated, supplemented or otherwise modified from time to time, issued pursuant
to that certain Amended and Restated Loan and Security Agreement, dated May 29,
1992, as amended, restated, supplemented or otherwise modified from time to
time, among HGD, HGI, HGNJ and Foothill.
'GAAP' means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public
3
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entities which have
authoritative support and are in effect from time to time.
'Government Securities' means direct obligations of, or obligations
guaranteed by, the United States of America, for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged.
'HGA' means Hospital Group of America, Inc., a Delaware corporation and a
Wholly Owned Subsidiary of the Company.
'HGD' means Hospital Group of Delaware, Inc., a Delaware corporation and
Wholly Owned Subsidiary of HGA.
'HGI' means Hospital Group of Illinois, Inc., an Illinois corporation and
Wholly Owned Subsidiary of HGA.
'HGNJ' means Hospital Group of New Jersey, Inc., a New Jersey corporation
and Wholly Owned Subsidiary of HGA.
'Holder' means a Person in whose name a Note is registered.
'Indebtedness' means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing the balance
deferred and unpaid of the purchase price of any Property (including pursuant to
capital leases) , except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and also includes, to the extent not otherwise included, the
guarantee of items which would be included within this definition.
'Indenture' means this Indenture, as amended or supplemented from time to
time.
'Investment' means, with respect to any Person, any investment by such
Person in any other Person in the form of a loan, advance (excluding any
commission, travel or similar advance to an officer or employee made in the
ordinary course of business) or capital contribution or purchase or other
acquisition for consideration of any Indebtedness, Equity Interest or other
security.
'IRB Indebtedness' means Indebtedness evidenced by that certain Economic
Development Revenue Bond, dated December 18, 1985, as amended, restated,
supplemented or otherwise modified from time to time, issued pursuant to that
certain Bond Purchase and Loan Agreement, dated December 18, 1985, as amended,
restated, supplemented or otherwise modified from time to time, among New Castle
County Delaware, National Westminster Bank USA and HGD.
'Legal Holiday' means a Saturday, a Sunday or a day on which banking
institutions in the City of New York 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 at a place of payment, 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.
'Lien' means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
'Net Proceeds' means, with respect to a sale or other disposition of the
Pledged CooperSurgical Securities or all or substantially all of the assets of
CooperSurgical, the aggregate cash proceeds and fair market value (as determined
in good faith by the Board of Directors) of any other proceeds received by the
Company or any of its Subsidiaries in respect of such sale or other disposition,
net of the direct costs relating to such sale or other disposition (including,
but not limited to, legal, accounting and investment banking fees, and sales
commissions), taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets the subject of such sale or other
disposition and any reserve for adjustment in respect of the sale price of such
assets or assets.
4
'Notes' means the Notes described above and issued under this Indenture.
'Officer' means, with respect to any Person, the Chairman of the Board or
the Acting Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, Controller, Secretary, any Assistant Secretary or any
VicePresident of such Person.
'Officers' Certificate' means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, principal financial officer or principal accounting officer of the
Company.
'Old Debentures' means the Company's 10-5/8% Convertible Subordinated Reset
Debentures due 2005.
'Opinion of Counsel' means an opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
'Permitted Investments' means (a) Investments in cash or Cash Equivalents;
(b) Investments of the Company or any Subsidiary of the Company existing on the
date of this Indenture; (c) Investments in the Company by any Subsidiary of the
Company, in any Subsidiary of the Company by the Company or any other Subsidiary
of the Company or in any Person which, as a result of such Investment, becomes a
Subsidiary of the Company; (d) prepaid expenses in the ordinary course of
business; (e) loans and advances to employees of the Company or any Subsidiary
in the ordinary course of business, provided that, if applicable, any such loan
or advance meets the requirements set forth in Section 4.09; (f) Investments in
accounts and notes receivable arising, created or received in the ordinary
course of business; (g) interest rate or currency protection agreements,
including, but not limited to, any interest rate or currency swap agreements,
interest rate cap agreements and interest rate collar agreements; (h)
endorsements of negotiable instruments and other similar instruments; (i)
Investments received as consideration upon the sale or transfer of any Property;
(j) so long as such Investments are not made at a time when a Default or Event
of Default has occurred and is continuing, Investments approved by a majority of
the members of the Board of Directors who are not employees of the Company,
provided that the primary purpose of each such Investment, as determined by such
members of the Board of Directors of the Company, is to benefit, complement, or
further (i) any business operated by the Company or any Subsidiary of the
Company prior to and on the date of such Investment or (ii) any
healthcare-related business that the Company or any Subsidiary of the Company
proposes to operate on the date of such Investment; (k) so long as such
Investments are not made at a time when a Default or Event of Default has
occurred and is continuing, other Investments made after the date of this
Indenture, provided that, immediately after giving effect to each such
Investment made pursuant to this clause (k), the aggregate consideration paid
for all Investments made pursuant to this clause (k) and held at such time by
the Company and its Subsidiaries, does not exceed (i) an amount equal to 5% of
the consolidated total assets of the Company and its Subsidiaries, determined in
accordance with GAAP, at the end of the Company's most recently ended full
fiscal quarter for which internal financial statements are available immediately
preceding the date on which such Investment is made, or (ii) alternatively, if
the HGA Consolidated Cash Flow Test set forth in Section 11.04(a) hereof has
been satisfied on or prior to the date of such Investment, an amount equal to
20% of the total consolidated assets of the Company and its Subsidiaries,
determined in accordance with GAAP, at the end of the Company's most recently
ended full fiscal quarter for which internal financial statements are available
immediately preceding the date on which such Investment is made; and (l)
Investments received as proceeds of any Investment made pursuant to clauses (a)
through (k) above or this clause (l), including, but not limited to, Investments
received in connection with a restructuring, bankruptcy or workout of the issuer
of any such Investment. Each of the foregoing clauses (a)-(k) sets forth an
independent, separate and distinct Permitted Investment, and Investments that
may be made pursuant to each of such clauses are in addition to any Investments
that may be made pursuant to any other clause. Limitations set forth in any one
of such clauses (a)-(k) or in the definitions used therein shall not be
applicable to any other such clauses or any other such definition.
5
'Person' means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust or unincorporated organization or
government or any agency or political subdivision thereof.
'Pledge Agreement' means the Pledge Agreement dated as of the date of this
Indenture between the Company and the Trustee, as such agreement may be amended,
modified or supplemented from time to time.
'Pledged CooperSurgical Securities' means the Pledged Shares and the
Pledged Indebtedness issued by CooperSurgical.
'Pledged HGA Securities' means the Pledged Shares and the Pledged
Indebtedness issued by HGA.
'Pledged Indebtedness' shall have the meaning ascribed to it in the Pledge
Agreement.
'Pledged Shares' shall have the meaning ascribed to it in the Pledge
Agreement.
'Property' means assets or property of any kind or nature whatsoever, real,
personal or mixed, whether tangible or intangible, and including any business or
securities.
'Purchase Money Indebtedness' means (a) Indebtedness secured by Liens (i)
on Property purchased, acquired, or constructed after the date of this
Indenture, (ii) securing the payment of all or any part of the purchase price or
construction cost of such Property or taken by a Person who by making advances
or incurring an obligation gives value and enables another Person to purchase,
acquire or construct such Property and (iii) limited to the Property so
purchased, acquired or constructed and improvements thereon (including (A) Liens
on the securities of any Subsidiary formed or acquired in connection with the
purchase, acquisition or construction of such Property (so long as the aggregate
fair market value as determined in good faith by the Board of Directors of
Property, if any, contributed to such Subsidiary by HGA or any of its
Subsidiaries existing on the date of this Indenture does not exceed $100,000)
and (B) Liens on Property purchased, acquired or constructed indirectly through
the purchase or acquisition of securities of a Person in a transaction in which
such Person becomes a Subsidiary of the Company) and (b) any exchange,
extension, refinancing, renewal, replacement or refunding of such Indebtedness
if any Liens securing such Indebtedness are as set forth in clauses (i) and
(iii) of clause (a) of this definition.
'Responsible Officer,' when used with respect to the Trustee, means any
officer within the Corporate Trust Division of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
'SEC' means the Securities and Exchange Commission.
'Securities Act' means the Securities Act of 1933, as amended.
'Subsidiary' means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
'Tangible Assets' with respect to any Person means the consolidated total
assets of such Person and its Subsidiaries determined in accordance with GAAP,
except that there shall be deducted therefrom all intangible assets (including
goodwill and other intangibles) determined in accordance with GAAP.
'TIA' means the Trust Indenture Act of 1939 (15 U.S.C. SECTIONS
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
'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 the successor serving hereunder.
'Wholly Owned Subsidiary' means any Subsidiary of the Company all of the
outstanding voting stock (other than directors' qualifying shares) of which is
owned by the Company or by any other
6
Subsidiary of the Company in an unbroken chain of Subsidiaries in which all of
the outstanding voting stock (other than directors' qualifying shares) of each
Subsidiary in such unbroken chain is owned by the Company or another Subsidiary
in the chain.
Section 1.02. Other Definitions.
DEFINED IN
TERM SECTION
- ------------------------------------------------------------------------ ----------
'Affiliate Transaction'................................................. 4.09
'Bankruptcy Law'........................................................ 6.01
'Change of Control Date'................................................ 4.13
'Change of Control Offer'............................................... 4.13
'Change of Control Offer Period'........................................ 4.13
'Change of Control Payment Date'........................................ 4.13
'Covenant Defeasance'................................................... 8.03
'Custodian'............................................................. 6.01
'Debt'.................................................................. 10.02
'Event of Default'...................................................... 6.01
'HGA Consolidated Cash Flow Test'....................................... 11.04
'incur'................................................................. 4.07
'Legal Defeasance'...................................................... 8.02
'Note Purchase Account'................................................. 3.05
'Paying Agent'.......................................................... 2.03
'Purchase Period'....................................................... 3.08
'Registrar'............................................................. 2.03
'Representative'........................................................ 10.02
'Restricted Payments'................................................... 4.06
'Senior Debt'........................................................... 10.02
'Substituted Joint Venture Interests'................................... 11.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
'indenture securities' means the Notes;
'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 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 1.04. 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; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
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Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Notes may have notations,
legends or endorsements approved as to form by the Company and required by law,
stock exchange rule, agreements to which the Company is subject or usage. Each
Note shall be dated the date of its authentication. The Notes shall be issuable
only in denominations of $1,000 and integral multiples thereof.
Section 2.02. Execution and Authentication.
An Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds that office at
the time the 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 of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Notes for original issue up to an
aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time shall not exceed the amount
set forth in paragraph 4 of the Notes except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the 'Registrar') and (ii) 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 'Paying
Agent' includes any additional paying agent. The Company may change any Paying
Agent, Registrar or co-registrar without prior notice to any Holder of a Note.
The Company shall notify the Trustee and the Trustee shall notify the Holders of
the Notes of the name and address of any Agent not a party to this Indenture.
The Company may act as Paying Agent, Registrar or co-registrar. The Company
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
Section 2.04. 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 shall hold in trust for the benefit of the
Holders of the Notes or the Trustee all money held by the Paying Agent for the
payment of principal of, and interest on, the Notes, and shall notify the
Trustee of any Default by the Company in making any such payment. While any such
Default continues, the Trustee may require a Paying Agent 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) shall have no further liability for the
money delivered to the Trustee. If the Company acts as Paying Agent, it shall
segregate
8
and hold in a separate trust fund for the benefit of the Holders of the Notes
all money held by it as Paying Agent.
Section 2.05. Lists of Holders of the Notes.
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
Holders of the Notes and shall otherwise comply with TIA SECTION 312(a). If the
Trustee is not the Registrar, the Company shall 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 Holders of the
Notes, including the aggregate principal amount of the Notes held by each
thereof, and the Company shall otherwise comply with TIA SECTION 312(a).
Section 2.06. Transfer and Exchange.
When Notes are presented to the Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; provided, however, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or by his attorney duly authorized in writing. To permit registrations
of transfer and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request, subject to such rules as the
Trustee may reasonably require.
Neither the Company nor the Registrar shall be required to (i) issue,
register the transfer of or exchange Notes during a period beginning at the
opening of business on a Business Day 15 days before the day of any selection of
Notes for redemption under Section 3.02 or (ii) register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
No service charge shall be made to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), 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 such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.05 hereof, which shall be paid by
the Company).
Prior to due presentment for registration of 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 Note and for all other
purposes whatsoever, whether or not such Note is overdue, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the contrary.
The registered Holder of a Note shall be treated as its owner for all purposes.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon the written order of
the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Note is replaced. Each of
the Company and the Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company entitled
to the benefits of this Indenture.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
9
If a Note is replaced pursuant to Section 2.07 hereof, it 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 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because the Company, a Subsidiary of the Company or an Affiliate of the Company
holds the Note.
Section 2.09. 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, any Subsidiary of the Company or any Affiliate of the Company shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Responsible Officer knows to be so owned shall be
so considered. Notwithstanding the foregoing, Notes that are to be acquired by
the Company, any Subsidiary of the Company or an Affiliate of the Company
pursuant to an exchange offer, tender offer or other agreement shall not be
deemed to be owned by the Company, such Subsidiary of the Company or an
Affiliate of the Company until legal title to such Notes passes to the Company,
such Subsidiary or Affiliate, as the case may be.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
the written order of the Company signed by two Officers of the Company, shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.11. 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 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), unless the
Company directs them to be returned to it. The Company may not issue new Notes
to replace Notes that it has redeemed or paid or that have been delivered to the
Trustee for cancellation. All cancelled Notes held by the Trustee shall be
destroyed and certification of their destruction delivered to the Company,
unless the Company shall direct them to be returned to it.
Section 2.12. Defaulted Interest.
If the Company fails to make a payment of interest on the Notes, it shall
pay such interest thereafter in any lawful manner . The Company may (but shall
not be obligated to) set a subsequent special record date with respect to the
payment of such interest and the interest payable on it, in which case the
Company shall fix the special record date and payment date. At least 15 days
before the special record date, the Company shall mail to Holders of Notes a
notice that states the special record date, payment date, and amount of such
interest to be paid.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use a 'CUSIP' number and, if it does
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will promptly
notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
10
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date (unless a shorter notice
period shall be satisfactory to the Trustee), an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
The Company may at any time, or from time to time, purchase Notes from the
Holders of Notes or in market transactions and such purchases shall not be
considered redemptions for the purposes hereof if the action of the sellers is
volitional and not compelled.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed among the Holders of the Notes on a pro rata basis, by
lot or in accordance with any other method the Trustee considers fair and
appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any), provided that no Notes of $1,000 or less shall
be redeemed in part. 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 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
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. Notes and portions of them selected
shall be in amounts of $1,000 or whole 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 a 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 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) 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.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
11
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become due and payable on the redemption date at the
redemption price.
Section 3.05. Deposit of Redemption Price.
Except as provided in the next paragraph, one Business Day prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued and unpaid
interest 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 on, all Notes to be
redeemed.
In the event of a sale or other disposition by the Company or any of its
Subsidiaries, as the case may be, of the Pledged CooperSurgical Securities, the
Substituted Joint Venture Interests or all or substantially all of the assets of
CooperSurgical pursuant to Section 11.03(a)(ii)(A) hereof, or a pledge by the
Company of the Pledged CooperSurgical Securities or the Substituted Joint
Venture Interests or the incurrence by the Company or its Subsidiaries of
Indebtedness secured by all or substantially all of the assets of CooperSurgical
pursuant to Section 11.03(a)(iii)(A) hereof, on or prior to the date of the sale
or other disposition or pledge or incurrence of Indebtedness, the Company shall
deposit with the Trustee or with the Paying Agent an amount equal to the greater
of $5,000,000 or one-third of the Net Proceeds from the sale or other
disposition, in the case of a sale or other disposition of the Pledged
CooperSurgical Securities,the Substituted Joint Venture Interests or all or
substantially all of the assets of CooperSurgical pursuant to Section
11.03(a)(ii)(A) hereof, or $5,000,000, in the case of a pledge of the Pledged
CooperSurgical Securities or the Substituted Joint Venture Interests or the
incurrence by the Company or its Subsidiaries of Indebtedness secured by all or
substantially all of the assets of CooperSurgical pursuant to Section
11.03(a)(iii)(A) hereof, in each case minus the aggregate principal amount of
Notes previously or concurrently purchased or redeemed by the Company and
delivered to the Trustee for cancellation. The Trustee or the Paying Agent shall
segregate and hold in a separate account (the 'Note Purchase Account') any money
so deposited and invest such money at the direction of the Company in Cash
Equivalents. The Trustee or the Paying Agent shall from time to time during the
Purchase Period release money from the Note Purchase Account to the Company upon
delivery by the Company to the Trustee or the Paying Agent of an Officers'
Certificate certifying that such money will be used to purchase Notes in market,
privately negotiated or other transactions contemplated by Section 3.08 hereof.
The Company shall make an appropriate public announcement prior to making any
such purchases. Any money remaining in the Note Purchase Account at the end of
the Purchase Period, including earnings on the investments thereof, shall be
used by the Trustee to redeem Notes on the redemption date in accordance with,
but only to the extent required under, Section 3.08 hereof, after giving effect
to all purchases and redemptions of Notes through the expiration of the Purchase
Period. One Business Day prior to the redemption date pursuant to Section 3.08
hereof, the Company, to the extent of any shortfall in the Note Purchase
Account, shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Notes to be redeemed on that date. The Trustee or Paying Agent shall promptly
return to the Company any money deposited with the Trustee or the Paying Agent
by the Company, including earnings, if any, on such investments made by the
Trustee or the Paying Agent, in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be
redeemed pursuant to Section 3.08 hereof.
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 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 either of the
preceding two paragraphs, 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 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
12
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder of the Note at the expense of
the Company a new Note equal in principal amount to the unredeemed portion of
the Note surrendered.
Section 3.07. Optional Redemption.
The Company shall have the option to redeem the Notes, at any time, in
whole or in part, upon not less than 30 nor more than 60 days' notice (as
provided in Section 3.03), at a redemption price equal to 100% of their
principal amount, plus accrued and unpaid interest thereon to the applicable
redemption date.
Section 3.08. Mandatory Redemption.
Except as expressly provided in this Section 3.08, the Company shall have
no obligation to effect any mandatory redemptions or make any sinking fund
payments , including, but not limited to, upon the occurrence of any transaction
pursuant to (a) Section 11.03(a)(i), 11.03(a)(ii)(B) or 11.03(a)(iii)(B) or (b)
any other Section of this Indenture.
After the expiration of the 90-day period (the 'Purchase Period')
commencing on the date of the closing of (x) a sale or other disposition by the
Company or any of its Subsidiaries, as the case may be, of the Pledged
CooperSurgical Securities, the Substituted Joint Venture Interests or all or
substantially all of the assets of CooperSurgical pursuant to Section
11.03(a)(ii)(A) hereof or (y) a pledge by the Company of the Pledged
CooperSurgical Securities or the Substituted Joint Venture Interests or the
incurrence by the Company or its Subsidiaries of Indebtedness secured by all or
substantially all of the assets of CooperSurgical pursuant to Section
11.03(a)(iii)(A) hereof, the Company shall redeem Notes in an aggregate
principal amount equal to (a) the greater of $5,000,000 or one-third of the Net
Proceeds from the sale or other disposition, in the case of a sale or other
disposition of the Pledged CooperSurgical Securities, the Substituted Joint
Venture Interests or all or substantially all of the assets of CooperSurgical
pursuant to Section 11.03(a)(ii)(A) hereof, or (b) $5,000,000, in the case of a
pledge of the Pledged CooperSurgical Securities or the Substituted Joint Venture
Interests or the incurrence by the Company or its Subsidiaries of Indebtedness
secured by all or substantially all of the assets of CooperSurgical pursuant to
Section 11.03(a)(iii)(A) hereof, in each case minus the aggregate principal
amount of Notes purchased or redeemed by the Company from the date of this
Indenture through the expiration of the Purchase Period and delivered to the
Trustee for cancellation (which delivery for cancellation may occur for up to
ten Business Days after the expiration of the Purchase Period). The redemption
price of the Notes, if any, to be redeemed pursuant to this Section 3.08 shall
equal 100% of their principal amount, plus accrued and unpaid interest thereon
to the applicable redemption date. During the Purchase Period, subject to
complying with applicable disclosure requirements and, in any event, making an
appropriate public announcement prior to making any such purchases, the Company
shall be permitted to use funds held in the Note Purchase Account pursuant to
the second paragraph of Section 3.05 hereof to purchase Notes in market,
privately negotiated or other transactions and the principal amount of any Notes
so purchased shall be applied as a credit in satisfaction of all or any part of
the mandatory redemption required to be made pursuant to this Section 3.08. Upon
the expiration of the Purchase Period, the Company shall furnish to the Trustee
an Officers' Certificate setting forth (v) the Section of this Indenture
pursuant to which the redemption shall occur, (w) the redemption date (which
date shall be at least 45 days but not more than 60 days after the expiration of
the Purchase Period), (x) the aggregate principal amount of Notes to be credited
against the Company's obligation to redeem Notes pursuant to this Section 3.08,
(y) the aggregate principal amount of Notes to be redeemed and (z) the
redemption price.
Mandatory redemptions pursuant to this Section 3.08 shall be made in
accordance with the provisions of Sections 3.02 through 3.06 of this Indenture.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes. Principal and interest shall be
considered paid on the date due if the Paying Agent holds on that date money
designated for and sufficient to pay all principal and interest then due.
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The Company shall pay interest on overdue principal at the rate borne by
the Notes; it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
Section 4.02. SEC Reports, Financial Reports.
The Company shall:
(a) file with the Trustee and mail to each of the Holders within 15 days
after the required filing date with the SEC copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act; or if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with the
Trustee and the SEC, and mail to each of the Holders within 15 days after it
would have been required to file such with the SEC, in accordance with rules and
regulations prescribed by the SEC, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed by such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed by the SEC, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture, as may be required by such rules and
regulations, including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public accountants,
conforming to the requirements of subsection (e) of Section 314 of the TIA, as
to compliance with conditions or covenants, compliance with which is subject to
verification by accountants, but no such certificate or opinion shall be
required as to any matter specified in clauses (A), (B), or (C) of paragraph (3)
of subsection (c) of Section 314 of the TIA;
(c) transmit to the Holders of the Notes, in the manner and to the extent
provided in subsection (c) of Section 313 of the TIA, such summaries of any
information, documents, and reports required to be filed by the Company pursuant
to paragraph (a) or (b) of this Section 4.02 as may be required by rules and
regulations prescribed by the SEC; and
(d) comply with the other provisions of Section 314(a) of the TIA.
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate , stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) or the Collateral
Documents and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
The Company shall, so long as any of the Notes are outstanding, deliver to
the Trustee forthwith upon becoming aware of (i) any Default, event of Default
or default in the performance of any covenant, agreement or condition contained
in this Indenture or the Collateral Documents or (ii) any event of default under
any other mortgage, indenture or instrument as that term is used in Section
6.01(4), an Officers' Certificate specifying such Default, event of Default or
default.
Section 4.04. Taxes.
The Company shall, and shall cause each of its material Subsidiaries to,
pay prior to delinquency all taxes, assessments and governmental levies, except
as contested in good faith and by appropriate proceedings.
Section 4.05. 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, which may affect the covenants
14
under or the performance of this Indenture; and the Company (to the extent 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 4.06. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any distribution
on account of the Company's or any of its Subsidiaries' Equity Interests (other
than (A) dividends or distributions payable in Equity Interests (other than
Disqualified Stock) issued by the Company or (B) dividends or distributions
payable to the Company or any Subsidiary of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value any Equity Interests issued by the
Company (other than any such Equity Interests owned by a Wholly Owned Subsidiary
of the Company); (iii) voluntarily purchase, redeem or otherwise acquire or
retire for value any Indebtedness that is pari passu with or subordinated to the
Notes, except in accordance with the mandatory redemption or repayment
provisions set forth in the original documentation governing such Indebtedness;
or (iv) make any Investment (other than Permitted Investments) (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as 'Restricted Payments'), unless, at the time of such
Restricted Payment:
(A) no Default or Event of Default under this Indenture shall have
occurred and be continuing or would occur as a consequence thereof; and
(B) the Cash Flow Coverage Ratio of the Company for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
Restricted Payment is made, calculated on a pro forma basis as if such
Restricted Payment had been made at the beginning of such four-quarter
period, would have been at least 1.5 to 1; and
(C) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after the date
of this Indenture, is less than the sum of (A) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from
the first day of the first full fiscal quarter beginning after the date of
this Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, minus 100% of such deficit), plus (B) 100% of the
aggregate net cash proceeds received by the Company, or the aggregate net
cash proceeds received by a Subsidiary of the Company to the extent such
cash proceeds are actually distributed by such Subsidiary to the Company
without any repayment obligation, from the issue or sale of Equity
Interests of the Company or any Subsidiary of the Company (other than
Equity Interests sold to the Company or a Subsidiary of the Company and
other than Disqualified Stock) since the date of this Indenture.
Within thirty days of making any Restricted Payment permitted pursuant to
(A), (B) and (C) above, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted.
Notwithstanding the foregoing or anything to the contrary in this
Indenture, the provisions of this Indenture shall not prohibit (1) the payment
of any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (2) the redemption, repurchase, retirement or other acquisition of
any Equity Interests issued by the Company in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Subsidiary of
the Company) of other Equity Interests of the Company (other than any
Disqualified Stock) or the redemption of Rights to purchase Series A Junior
Participating Preferred Stock of the Company pursuant to their terms; (3) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests issued by the Company pursuant to the Company's 1982 Stock
Option Plan, 1985 Stock Option Plan, 1988 Long Term Incentive Plan , 1990
Non-Employee Directors Restricted Stock Plan , 401(k) Plan (formerly Stock
Purchase Savings Plan) or Turn Around Incentive Plan, provided that the
aggregate redemptions, repurchases, retirements or other acquisitions
15
made pursuant to this clause (3) do not exceed (a) the product of (x) $100,000
and (y) the number of fiscal years of the Company since the date of this
Indenture (provided that any portion of a fiscal year of the Company shall be
counted as a full fiscal year for purposes of this clause (3)), minus (b) the
amount paid by the Company and its Subsidiaries since the date of this Indenture
for Restricted Payments pursuant to this clause (3); (4) any dividend or
distribution payable in Equity Interests issued by a Subsidiary of the Company
(other than Equity Interests issued by HGA or any of its Subsidiaries or, unless
and until the Pledged CooperSurgical Securities are released from the security
interest created by the Pledge Agreement, CooperSurgical or any of its
Subsidiaries); provided, however, that, as of the date of each dividend or
distribution paid pursuant to this clause (4), the aggregate amount of Equity
Interests of each Subsidiary of the Company being paid in such dividend or
distribution, when added to the aggregate amount of all Equity Interests of such
Subsidiary previously paid in all dividends and distributions pursuant to this
clause (4) since the date of this Indenture, shall not exceed 20% of the
outstanding Equity Interests of such Subsidiary; (5) any pro rata dividend or
distribution made by a Subsidiary of the Company to such Subsidiary's
shareholders; (6) the payment of cash dividends on the Company's Series B
Preferred Stock; (7) purchases of the Company's Common Stock from record or
beneficial holders thereof who, the Company reasonably believes, hold of record
or beneficially less than 1,000 shares thereof, purchases or redemptions of Old
Debentures from record or beneficial holders thereof who, the Company reasonably
believes, hold of record or beneficially less than $10,000 principal amount
thereof or purchases of fractional shares of the Company's Common Stock,
provided that the aggregate consideration paid in all purchases and redemptions
pursuant to this clause (7) shall not exceed (a) the product of (x) $50,000 and
(y) the number of fiscal years of the Company since the date of this Indenture (
provided that any portion of a fiscal year of the Company shall be counted as a
full fiscal year for purposes of this clause (7)), minus (b) the amount paid by
the Company and its Subsidiaries since the date of this Indenture for Restricted
Payments pursuant to this clause (7); and (8) the purchase, redemption or other
acquisition or retirement of Old Debentures; provided, however, that (a) no Old
Debentures shall be purchased, redeemed or otherwise acquired or retired
pursuant to this clause (8) until the first anniversary of the date of this
Indenture, (b) from and after the first anniversary of the date of this
Indenture, the aggregate consideration that the Company may pay to purchase,
redeem or otherwise acquire or retire Old Debentures from time to time pursuant
to this clause (8) shall not at any time exceed an amount equal to (i) the
product of (x) $1,000,000 and (y) the number of fiscal years of the Company
since the first anniversary of the date of this Indenture (provided that any
portion of a fiscal year of the Company since the first anniversary of the date
of this Indenture shall be counted as a full fiscal year for purposes of this
clause (8)), minus (ii) the amount paid by the Company and its Subsidiaries
since the first anniversary of the date of this Indenture to purchase, redeem or
otherwise acquire or retire Old Debentures pursuant to this clause (8); and (c)
if the HGA Consolidated Cash Flow Test set forth in Section 11.04(a) hereof has
been satisfied, the limitations set forth in clause (b) of this clause (8) shall
cease and there shall be no restriction upon the amount of Old Debentures that
the Company and its Subsidiaries may purchase, redeem or otherwise acquire or
retire. Each of the foregoing clauses (1)-(8) sets forth an independent,
separate and distinct exception to the covenant set forth in the first paragraph
of this Section, and Restricted Payments that may be made pursuant to each of
such clauses are in addition to any Restricted Payments that may be made
pursuant to any other clause. Limitations set forth in any one of such clauses
(1)-(8) or in the definitions used therein shall not be applicable to any other
such clauses or any other such definition.
Section 4.07. Limitation On Indebtedness
The Company shall not, and shall not permit any of its Subsidiaries (other
than HGA or any of its Subsidiaries) to, directly or indirectly, create, incur,
issue, assume, guaranty or otherwise become directly or indirectly liable with
respect to (collectively, 'incur') any Indebtedness (including Acquired Debt),
unless the Cash Flow Coverage Ratio for the Company's most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
would have been at least 1.0 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom and including, without
limitation, the earnings of any business acquired by the Company with the
proceeds therefrom), as if the additional Indebtedness had been incurred at the
beginning of such four-quarter period.
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The foregoing limitation shall not prohibit: (a) the existence of the
Existing Indebtedness; (b) if all or any portion of the principal amount of any
Existing Indebtedness is repaid, from time to time on or after the date of this
Indenture, the incurrence by the Company and its Subsidiaries of Indebtedness in
an amount not to exceed at any one time outstanding the aggregate principal
amount so repaid; (c) the incurrence by the Company of any Indebtedness to any
of its Subsidiaries or the incurrence by any Subsidiary of the Company of any
Indebtedness to the Company or any Subsidiary of the Company; (d) the incurrence
of Indebtedness (including Acquired Debt) by any Subsidiary of the Company if
such Subsidiary, together with its consolidated Subsidiaries, would have had a
Cash Flow Coverage Ratio for such Subsidiary's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such Indebtedness is incurred by such
Subsidiary of at least 1.0 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom and including, without
limitation, the earnings of any business acquired by the Company with the
proceeds therefrom), as if such additional Indebtedness had been incurred at the
beginning of such four-quarter period; (e) the incurrence by the Company and its
Subsidiaries of additional Indebtedness in an amount not to exceed $50,000,000
at any one time outstanding; (f) the incurrence by the Company or any of its
Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which
are used to extend, refinance, renew, replace or refund , Indebtedness referred
to in clauses (a) through (e) above; or (g) the incurrence by the Company and
its Subsidiaries of Purchase Money Indebtedness. Each of the foregoing clauses
(a) through (g) sets forth an independent, separate and distinct exception to
the covenant set forth in the first paragraph of this Section, and Indebtedness
that may be incurred pursuant to each of such clauses is in addition to any
Indebtedness that may be incurred pursuant to any other clause. Limitations set
forth in any one of such clauses (a) through (g) or in the definitions used
therein shall not be applicable to any other such clauses or any other such
definitions. The Indebtedness permitted to be incurred pursuant to the foregoing
clauses (a) through (g) may be incurred from time to time pursuant to one
agreement or several agreements with one lender or several lenders. The
exceptions contained in the foregoing clauses (a) through (g) shall not be
applicable to the prohibition set forth in the following paragraph against the
incurrence of Indebtedness by HGA and its Subsidiaries, the exceptions to which
are set forth in such paragraph.
The Company shall not permit HGA and its Subsidiaries to incur any
Indebtedness other than (a) Existing Indebtedness of HGA or any of its
Subsidiaries; (b) Indebtedness to the Company or any Subsidiary of the Company;
(c) Purchase Money Indebtedness; (d) Acquired Debt and any extension,
refinancing, renewal, replacement or refunding of such Acquired Debt, provided
that there is no recourse, in connection with such Acquired Debt or such
extension, refinancing, renewal, replacement or refunding, to HGA or any of its
Subsidiaries in existence on the date of this Indenture or to any Property of
HGA or any such Subsidiaries other than recourse (i) to any Subsidiary of HGA
formed in connection with the acquisition in which the Acquired Debt is incurred
(so long as the aggregate fair market value as determined in good faith by the
Board of Directors of Property contributed to such Subsidiary by HGA or any of
its Subsidiaries existing on the date of this Indenture does not exceed
$100,000), (ii) to the Property of any Subsidiary described in clause (i) and
(iii) to any acquired entity or the Property of such acquired entity; (e)
Indebtedness issued in exchange for, or the proceeds of which are used to
extend, refinance, renew, replace or refund, the Existing Indebtedness of HGA
and its Subsidiaries; provided that (i) any Indebtedness issued in exchange for,
or the proceeds of which are used to extend, refinance, renew, replace or
refund, the Foothill Indebtedness shall not exceed the outstanding principal
amount of the Foothill Indebtedness as of the date of such extension,
refinancing, renewal, replacement or refunding and, if the principal amount of
Indebtedness incurred to extend, refinance, renew, replace or refund the
Foothill Indebtedness exceeds $8,666,667, such excess principal amount shall
amortize, between the date of such extension, refinancing, renewal, replacement
or refunding and August 1, 1997, in at least the same amounts as, and by the
same dates as, provided in the agreements and instruments governing the Foothill
Indebtedness; and (ii) any Indebtedness issued in exchange for, or the proceeds
of which are used to extend, refinance, renew, replace or refund the IRB
Indebtedness shall not exceed the outstanding principal amount of the IRB
Indebtedness as of the date of such extension, refinancing, renewal, replacement
or refunding and shall amortize in at least the same amounts as, and by the same
dates as, provided in the agreements and instruments governing the IRB
Indebtedness; provided, further, that with respect to clause (ii), if such
extension, refinancing, renewal,
17
replacement or refunding occurs after the date on which the holder of the IRB
Indebtedness has given notice that it will require a mandatory redemption or
mandatory prepayment pursuant to the terms of the agreements and instruments
governing the IRB Indebtedness, an amount equal to the principal amount of the
IRB Indebtedness required to be paid at the time of redemption or prepayment
pursuant to such notice may be extended, refinanced, renewed, replaced or
refunded without any restriction as to amortization; (f) any Indebtedness issued
in exchange for, or the proceeds of which are used to extend, refinance, renew,
replace or refund, Indebtedness incurred pursuant to clause (e) above, provided
that the aggregate amount thereof does not exceed $8,666,667 or, alternatively,
$8,666,667 plus any amount of the IRB Indebtedness extended, refinanced,
renewed, replaced or refunded, without any restriction as to amortization,
pursuant to clause (e) above; and (g) Indebtedness (including Acquired Debt)
incurred by HGA or any Subsidiary of HGA if (i) the HGA Consolidated Cash Flow
Test set forth in Section 11.04(a) has been satisfied on or prior to the date of
such incurrence, (ii) HGA has a Cash Flow Coverage Ratio for HGA's most recently
ended three full fiscal quarters for which internal financial statements are
available immediately preceding the date of such incurrence of at least 2.0 to
1; (iii) at the date of each incurrence of Indebtedness pursuant to this clause
(g), the aggregate principal amount of all Indebtedness incurred pursuant to
this clause (g) and still outstanding (including the Indebtedness then being
incurred pursuant to this clause (g)) does not exceed 50% of the amount by which
(x) the amount of HGA's Tangible Assets (excluding cash, to the extent included
in Tangible Assets) at the end of the Company's most recently ended full fiscal
quarter for which internal financial statements are available immediately
preceding such date exceeds (y) the amount of HGA's Tangible Assets (excluding
cash, to the extent included in Tangible Assets) at October 31, 1993; and (iv)
the aggregate principal amount of Indebtedness incurred pursuant to this clause
(g) does not exceed $15,000,000 at any one time outstanding. Each of the
foregoing clauses (a) through (g) sets forth an independent, separate and
distinct exception to the prohibition set forth at the outset of this paragraph
against the incurrence of Indebtedness by HGA and its Subsidiaries, and
Indebtedness that may be incurred pursuant to each of such clauses is in
addition to any Indebtedness that may be incurred pursuant to any other clause.
Limitations set forth in any one of such clauses (a) through (g) or in the
definitions used therein shall not be applicable to any other such clauses or
any other such definitions. The Indebtedness permitted to be incurred pursuant
to the foregoing clauses (a) through (g) may be incurred from time to time
pursuant to one agreement or several agreements with one lender or several
lenders.
Section 4.08. Maintenance of Properties.
The Company shall, and shall cause each of its material Subsidiaries to,
maintain its properties and assets in good working order and condition and make
all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, except to the extent that failure to make any such repair,
renewal, replacement, addition, betterment or improvement would not have a
material adverse impact upon the business of the Company and its Subsidiaries
taken as a whole.
The Company shall, and shall cause each of its material Subsidiaries to,
maintain with financially sound and reputable insurers such insurance as may be
required by law and such other insurance, to such extent and against such
hazards and liabilities as is customarily maintained by companies similarly
situated, except to the extent that failure to maintain such insurance would not
have a material adverse impact upon the business of the Company and its
Subsidiaries taken as a whole.
The Company shall, and shall cause each of its material Subsidiaries to,
keep true books of records and accounts in which full and correct entries will
be made of all its business transactions, in accordance with sound business
practices, and reflect in its financial statements adequate accruals and
appropriations to reserves, all in accordance with GAAP.
The Company shall, and shall cause each of its material Subsidiaries to,
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole.
Section 4.09. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its Properties to, or
purchase any Property from, or enter into any contract,
18
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an 'Affiliate Transaction'), unless
(a) such Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained at the time in a comparable transaction by the Company or such
Subsidiary with an unrelated person ; (b) with respect to any Affiliate
Transaction involving aggregate payments in excess of $1,000,000, the Company
delivers to the Trustee a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (a) above and such Affiliate Transaction is approved by a majority of the
disinterested members of the Board of Directors; and (c) with respect to any
Affiliate Transaction (other than an Affiliate Transaction described in the
final proviso below in this Section 4.09) involving aggregate payments in excess
of $2,500,000, the Company delivers to the Trustee an opinion as to the fairness
of such Affiliate Transaction to the Company or such Subsidiary from a financial
point of view issued by an independent investment banking firm or an independent
engineer, appraiser or other expert; provided, however, that (i) any employment,
consulting, severance, bonus or benefit agreement or plan entered into by the
Company or any of its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Subsidiary and any and
all payments and transactions pursuant thereto, (ii) transactions between or
among the Company and/or its Subsidiaries and (iii) transactions permitted by
the provisions of Section 4.06 hereof or by the covenant entitled 'Limitation on
Restricted Payments' in the amended and restated indenture governing the Old
Debentures, in each case, shall not be deemed Affiliate Transactions; provided,
further, however, that any employment, consulting, severance or bonus agreement
entered into after the date of this Indenture by the Company or any of its
Subsidiaries with a Person who, other than by virtue of entering into such
agreement or such Person's position pursuant to such agreement, is an Affiliate
of the Company or any of its Subsidiaries, shall be deemed an Affiliate
Transaction.
Section 4.10. Limitation on Ranking of Future Indebtedness.
The Company shall not incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in any respect in right of payment to the
Notes.
Section 4.11. Board of Directors.
At least 25% of the members of the Board of Directors at any time shall be
members who are not otherwise employed, on a full-time basis, by the Company or
any of its Affiliates.
Section 4.12. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
Section 4.13. Change of Control
If at any time after the date of this Indenture the Board of Directors
shall have become aware (whether by public filings or otherwise) of a Change of
Control (the 'Change of Control Date'), then the Company shall, no later than 30
days after a Change of Control Date, make an offer to all Holders to purchase (a
'Change of Control Offer') 100% of the principal amount of Notes outstanding as
of such date at a purchase price equal to 100% of the principal amount thereof
plus accrued and unpaid interest to the Change of Control Payment Date (as
hereinafter defined). The Change of Control Offer shall remain open for a period
of twenty business days following its commencement and no longer, except to the
extent that a longer period is required by applicable law (the 'Change of
Control Offer Period'). No later than five business days after the termination
of the Change of Control Offer Period (the 'Change of Control Payment Date') the
Company shall purchase all Notes tendered in response to the Change of Control
Offer.
If the Change of Control Payment Date is on or after an interest payment
record date and on or before the related interest payment date, any accrued and
unpaid interest to the Change of Control Payment Date will be paid in respect of
Notes that are tendered pursuant to the Change of Control Offer to the Person in
whose name a Note is registered at the close of business on such record date,
and
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no additional interest will be payable to Holders who tender Notes pursuant to
the Change of Control Offer.
The Company shall provide the Trustee with written notice of the Change of
Control Offer at least ten days before the notice of any Change of Control Offer
is mailed to Holders.
Upon the commencement of any Change of Control Offer, the Company or, at
the Company's written request, the Trustee, shall send, by first class mail, a
notice to each of the Holders. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. The notice, which shall govern the terms of the Change
of Control Offer, shall state: (1) that the Change of Control Offer is being
made pursuant to this Section 4.13 of this Indenture, the expiration of the
Change of Control Offer Period and the Change of Control Payment Date; (2) that
the Change of Control Offer is being made for all Notes outstanding on the date
of such Offer at a price of 100% of the principal amount thereof plus accrued
and unpaid interest to the Change of Control Payment Date; (3) that any Note not
tendered or accepted for payment will continue to accrue interest; (4) that any
Note accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have a Note purchased pursuant to any Change of Control Offer will
be required to surrender the Note, with the form entitled 'Option of Holder to
Elect Purchase' on the reverse of the Note (or, if no such form is provided, a
letter of transmittal supplied by the Company) completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice and before the expiration of the Change of Control Offer
Period; and (6) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not later
than the expiration of the Change of Control Offer Period, or such longer period
as may be required by law, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the
Holder delivered for purchase and statement that such Holder is withdrawing his
election to have the Note purchased.
On or before a Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) if the Company appoints a
depositary or Paying Agent, deposit with such depositary or Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted, (iii) deliver or cause the depositary or Paying Agent to deliver to
the Trustee Notes so accepted and (iv) deliver an Officers' Certificate stating
such Notes were accepted for payment by the Company in accordance with the terms
of this Section 4.13. The depositary, the Paying Agent or the Company, as the
case may be, shall promptly (but in any case not later than five business days
after the Change of Control Payment Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with an offer to
purchase Notes upon a Change of Control.
Except as described above with respect to a Change of Control, the Company
shall not be required to repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar restructuring.
Section 4.14. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it shall, on
or before each due date of the principal of or interest on the Notes, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal or interest so becoming due until such sum shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it shall, on or
prior to each date for the payment of the principal of or interest on the Notes,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such payments; and, unless such Paying Agent is the Trustee, the
Company will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal or
interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
For the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, the Company may at any time pay, or direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by the Company or any Paying Agent to the Trustee, the Company
or such Paying Agent, as the case may be, shall be released from all further
liability with respect to such money.
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate or merge with or into any Person unless:
(1) the Person formed by or surviving any such consolidation or merger
is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(2) the corporation formed by or surviving any such consolidation or
merger assumes by supplemental indenture all the obligations of the Company
under the Notes and this Indenture;
(3) immediately after the transaction no Default or Event of Default
exists; and
(4) the corporation formed by or surviving any such consolidation or
merger shall have Adjusted Net Worth (immediately after the transaction)
equal to or greater than the Adjusted Net Worth of the Company (immediately
preceding the transaction), and the aggregate combined Consolidated Net
Income of such Person and the Company for the four full fiscal quarters
immediately preceding such transaction shall be equal to or greater than
the Consolidated Net Income of the Company (for its four full fiscal
quarters immediately preceding such transaction), respectively.
The Company shall deliver to the Trustee prior to the proposed transaction
an Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and such supplemental indenture comply
with this Indenture.
The surviving corporation shall be the successor Company.
Notwithstanding the foregoing, the Company shall be permitted to sell,
lease, transfer or otherwise dispose of any or all of its assets; provided,
however, that the Company shall not sell, lease, transfer or otherwise dispose
of the Pledged HGA Securities or all or substantially all of the assets of HGA
or, unless and until the Pledged CooperSurgical Securities are released from the
security interest created by the Pledge Agreement, the Pledged CooperSurgical
Securities or all or substantially all of the assets of CooperSurgical, except
to the extent otherwise permitted by, and subject to the terms of, Article 11
and the Collateral Documents.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an 'Event of Default' under this
Indenture:
(1) default for 30 days in the payment when due of interest on the Notes
(whether or not prohibited by the subordination provisions of this Indenture);
(2) default in payment of principal of the Notes (whether or not prohibited
by the subordination provisions of this Indenture) when due and payable at
maturity, upon repurchase under Section 4.13, upon redemption or otherwise;
(3) failure by the Company to comply with the other agreements in this
Indenture , the Notes or in the Collateral Documents which failure continues for
the period and after the notice specified below;
(4) default under any mortgage, indenture or other instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company, HGA or any Subsidiary of HGA or,
unless and until the Pledged CooperSurgical Securities are released from the
security interest created by the Pledge Agreement, CooperSurgical or any
Subsidiary of CooperSurgical (or the payment of which is guaranteed by the
Company, HGA or any Subsidiary of HGA or, unless and until the Pledged
CooperSurgical Securities are released from the security interest created by the
Pledge Agreement, CooperSurgical or any Subsidiary of CooperSurgical) whether
such Indebtedness or guarantee now exists, or is created after the date of this
Indenture, which default results in the acceleration of such Indebtedness prior
to its express maturity and the principal amount of any such Indebtedness
aggregates $5,000,000 or more (or $1,500,000 or more if such Indebtedness being
accelerated was incurred pursuant to clause (c), (d) or (g) of the last
paragraph of Section 4.07 of this Indenture);
(5) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any Subsidiary of the Company which judgment remains undischarged for a period
(during which execution shall not be effectively stayed) of 30 days, provided
that the aggregate of all such judgments exceeds $5,000,000;
(6) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(D) makes a general assignment for the benefit of creditors; or
(E) generally is not able to pay its debts as they become due; and
(7) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or substantially
all of the property of the Company; or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days.
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.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes notify the Company in writing of the Default and the Company
does not cure the Default within 60 days after receipt of the notice. The
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notice must specify the Default, demand that it be remedied and state that the
notice is a 'Notice of Default.'
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in clause
(6) or (7) of Section 6.01) occurs and is continuing, the Trustee by written
notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the then outstanding Notes by written notice to the Company
and the Trustee, may declare the unpaid principal of, and any accrued and unpaid
interest on, all the Notes to be due and payable. Upon such declaration the
principal and interest shall be due and payable immediately. If an Event of
Default specified in clause (6) or (7) of Section 6.01 occurs, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal or interest that has become due solely because of the acceleration)
have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, and interest on, the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences, except a continuing Default or Event of Default in the payment of
the principal of, or interest on, the Notes. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05. Control by Majority.
Holders of 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 the law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) 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;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense;
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(d) 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
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture or any of the Collateral Documents
to prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder of the Note.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) 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, 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 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 of this Indenture) and the Holders of Notes
allowed in any judicial proceedings relative to the Company, its creditors or
its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each 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 7.07 of this
Indenture. To the extent that such payment of reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel out of the
estate in any such judicial 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
dividends, distributions, monies, securities and other property that the Holders
may be entitled to receive in such judicial proceedings, whether in liquidation
or under any plan of reorganization, arrangement or otherwise. Nothing contained
herein 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
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects or receives any money or property pursuant to this
Article, it shall pay out the money or property in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Senior Debt to the extent required by Article 10.
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Third: to Holders of Notes for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as 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 6.07, or a suit by Holders of more than 10% in aggregate principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) 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.
(c) 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:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
(e) 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 of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
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(f) 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 7.02. Rights of Trustee.
(a) 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.
(b) Before the Trustee acts or refrains from acting, 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.
(c) 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.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(e) 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.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company 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 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 7.04. 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 7.05. Notice of Defaults.
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 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, or interest on, any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to the Holders of the Notes a
brief report dated as of such reporting date that complies with TIA SECTION
313(a) (but if no event described in TIA SECTION 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also
26
shall comply with TIA SECTION 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA SECTION 313(c).
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. The Company shall promptly notify the Trustee when
the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
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.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth below. 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.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or bad faith.
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. Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (6) or (7) 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.
Section 7.08. Replacement of Trustee.
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.
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 aggregate 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:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) 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;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes
27
office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
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 aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of a Note who
satisfies the requirements of TIA SECTION 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
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 all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09. 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 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by federal or
state authority and shall have a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA SECTION 310(a)(1), (2) and (5). The Trustee is subject to TIA SECTION
310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA SECTION 311(a), excluding any creditor
relationship listed in TIA SECTION 311(b). A Trustee who has resigned or been
removed shall be subject to TIA SECTION 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. 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, with respect to
the Notes, elect to have either Section 8.02 or 8.03 be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the option applicable to
this Section 8.02, the Company shall be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, 'Legal Defeasance'). For this purpose,
such Legal Defeasance means that the Company shall be deemed to have paid and
discharged
28
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be 'outstanding' only for the purposes of Section 8.05
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 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 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 8.04, and as more fully set forth in such Section, payments in respect
of the principal of, and interest on, such Notes when such payments are due, (b)
the Company's obligations with respect to such Notes under Sections 2.04, 2.06,
2.07 and 2.10, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 with respect to the Notes.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the option applicable to
this Section 8.03, the Company shall be released from its obligations under the
covenants contained in Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13 and 4.14 with respect to the outstanding Notes on and
after the date the conditions set forth below are satisfied (hereinafter,
'Covenant Defeasance'), and the Notes shall thereafter be deemed not
'outstanding' for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed 'outstanding' for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01(3), 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 8.01 of the option applicable to this Section
8.03, Sections 6.01(4) and 6.01(5) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section 8.02
or Section 8.03 to the outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this
Article 8 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (a) cash in
U.S. Dollars in an amount, or (b) non-callable Government Securities which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, cash in U.S. Dollars in an amount, or (c) a
combination thereof, in such amounts, as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, and interest on, the
outstanding Notes on the stated maturity or on the applicable redemption
date, as the case may be, of such principal or installment of principal or
interest; provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such non-callable Government
Securities to said payments with respect to the Notes.
(b) In the case of an election under Section 8.02, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal
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Revenue Service a ruling or (ii) since the date hereof, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) In the case of an election under Section 8.03, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee to the effect that the Holders of the
outstanding 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 in the same amount, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had
not occurred;
(d) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
Subsection 6.01(6) or 6.01(7) is concerned, at any time in the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period);
(e) 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 is a party
or by which the Company is bound;
(f) In the case of an election under either Section 8.02 or 8.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable Bankruptcy Law;
(g) In the case of an election under either Section 8.02 or 8.03, the
Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.02 or 8.03 was not made by the Company with the intent of
preferring the Holders over other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 8.02 or the Covenant Defeasance under Section 8.03
(as the case may be) have been complied with as contemplated by this
Section 8.04.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the 'Trustee') pursuant
to Section 8.04 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 and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the Company's request
any money or non-callable Government Securities held by it as provided in
Section 8.04 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
8.04(a)), are in excess of the amount thereof which
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would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 8.06. 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, or interest on, any
Note and remaining unclaimed for two years after such principal, and premium, if
any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general 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 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03, 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 8.02 or
8.03 until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03, as the case may be;
provided, however, that, if the Company makes any payment of principal of, 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.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee
may amend or supplement this Indenture , the Notes or the Collateral Documents
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) 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
legal rights hereunder of any Holder of the Note; or
(d) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
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
9.06 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 which
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture which affects its own rights, duties or
immunities under this Indenture or otherwise.
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Section 9.02. With Consent of Holders of Notes.
The Company and the Trustee may amend or supplement this Indenture, the
Notes or the Collateral Documents or any amended or supplemental Indenture with
the written consent of the Holders of Notes of not less than a majority in
aggregate principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), and
any existing Default and its consequences or compliance with any provision of
this Indenture, the Notes or the Collateral Documents 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 tender offer
or exchange offer for the Notes).
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 9.06 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture 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.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
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. Subject to Sections 6.04 and 7.05 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture , the Notes or any of the Collateral Documents. However, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder of Notes):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes in a
manner that adversely affects the rights of any Holders of Notes;
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of, or interest on, the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes or waive a redemption
payment with respect to any Note;
(g) make any change in the foregoing amendment and waiver provisions;
or
(h) make any change in Article 10 that adversely affects the rights of
any Holder of Notes.
Section 9.03. 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.
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Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, 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 debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented to the amendment or waiver. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of a
Note.
The Company may (but shall not be obligated to) fix a record date for
determining which Holders of the Notes must consent to such amendment,
supplement or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Notes furnished to the
Trustee prior to such solicitation pursuant to Section 2.05 or (ii) such other
date as the Company shall designate.
Section 9.05. Notation on or Exchange of Notes.
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.
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 9.06. Trustee to Sign Amendments, etc.
Upon receipt by the Trustee of an Opinion of Counsel and an Officers'
Certificate reasonably acceptable to the Trustee, the Trustee shall sign any
amended or supplemental Indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder of a Note by accepting a Note agrees,
that theindebtedness evidenced by the Notes is subordinated in right of payment,
to the extent and in the manner provided in this Article 10, to the prior
payments in full of all Senior Debt, and that the subordination is for the
benefit of the holders of Senior Debt.
Section 10.02. Certain Definitions.
'Debt' means any indebtedness, contingent or otherwise, in respect of
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of the Company or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments or letters of credit, or representing
the balance deferred and unpaid of the purchase price of any Property or
interest therein, except any such balance that constitutes a trade payable, if
and to the extent such indebtedness would appear as a liability upon a balance
sheet of the Company prepared on a consolidated basis in accordance with GAAP.
'Representative' means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
'Senior Debt' means all Debt (present or future) created, incurred, assumed
or guaranteed bythe Company (and all renewals, extensions or refundings
thereof), unless the instrument under which such Debt is created, incurred,
assumed or guaranteed expressly provides that such Debt is not senior or
33
superior in right of payment to the Notes. Notwithstanding anything to the
contrary in the foregoing, Senior Debt shall not include (i) any Debt of the
Company to any of its Subsidiaries and (ii) the Old Debentures.
Section 10.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of and interest (including interest accruing
after the commencement of any such proceeding) to the date of payment, on
the Senior Debt before Holders of Notes shall be entitled to receive any
payment of principal of or interest on Notes; and
(2) until the Senior Debt is paid in full in cash, any distribution to
which Holders of Notes would be entitled but for this Article shall be made
to holders of Senior Debt as their interests may appear, except that
Holders of Notes may receive securities that are subordinated to Senior
Debt to at least the same extent as the Notes.
A distribution may consist of cash, securities or other property.
Section 10.04. Default on Senior Debt.
Upon the maturity of any Senior Debt by lapse of time, acceleration or
otherwise, all such Senior Debt shall first be paid in full, or such payment
duly provided for in cash or in a manner satisfactory to the holders of such
Senior Debt, before any payment is made by the Company or any person acting on
behalf of the Company on account of the principal of, or interest on, the Notes.
The Company may not pay principal of or interest on the Notes and may not
acquire any Notes for cash or property other than capital stock of the Company
if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of such Senior Debt to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of the default from a person who may give it pursuant to
Section 10.12. If the Company receives any such notice, a similar notice
received within nine months thereafter relating to the same default on the
same issue of Senior Debt shall not be effective for purposes of this
Section.
The Company may resume payments on the Notes and may acquire them when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default is not the
subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
Section 10.05. Acceleration of Securities.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Debt of the acceleration. The
Company may pay the Notes when 120 days pass after the acceleration occurs if
this Article permits the payment at that time.
Section 10.06. When Distribution Must Be Paid Over.
In the event that notwithstanding the provisions of Section 10.04, the
Company shall make any payment to the Trustee on account of the principal of, or
interest on, the Notes, after the happening of a default in payment of the
principal or interest on Senior Debt, or after receipt by the Company and the
Trustee of written notice as provided in Sections 10.04 and 10.12 of an event of
default or an event which, with the passage of time or the giving of notice or
both, would constitute an event of default with respect to any Senior Debt,
then, unless and until such default or event of default shall have been cured
34
or waived or shall have ceased to exist, such payment shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Debt (pro rata as to each of such holders on
the basis of the respective amounts of Senior Debt held by them) or their
Representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Senior Debt
remaining unpaid to the extent necessary to pay all Senior Debt in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
If a distribution is made to Holders of Notes that because of this Article
would not have been made to them, the Holders of Notes who receive the
distribution shall hold it in trust for holders of Senior Debt and pay it over
to them as their interests may appear.
Section 10.07. 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 principal of or
interest on the Notes to violate this Article, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt provided in
this Article. Nothing in this Article 10 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07.
Section 10.08. Subrogation.
After all Senior Debt is paid in full and until the Notes are paid in full,
Holders of Notes shall be subrogated to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of Notes have been applied to the payment of
Senior Debt. A distribution made under this Article to holders of Senior Debt
which otherwise would have been made to Holders of Notes is not, as between the
Company and Holders of Notes, a payment by the Company on the Senior Debt.
Section 10.09. Relative Rights.
This Article defines the relative rights of Holders of Notes and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) impair, as between the Company and the Holders of Notes, the
obligation of the Company to comply with the terms of the Collateral
Documents;
(3) affect the relative rights of Holders of Notes and creditors of
the Company other than holders of Senior Debt; or
(4) prevent the Trustee or any Holder of a Note from exercising its
available remedies upon a Default or Event of Default (including, but not
limited to, any rights and remedies under the Collateral Documents),
subject to the rights of holders of Senior Debt to receive distributions
otherwise payable to Holders of Notes, which rights are set forth in this
Article 10.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
Section 10.10. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or by its failure to comply with this Indenture.
35
Section 10.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Section 10.12. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on the Notes
until it receives notice of facts that would cause a payment of principal of or
interest on the Notes to violate this Article. Only the Company, a
Representative or a holder of an issue of Senior Debt that has no Representative
may give the notice.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Section 10.13. Priority of Rights with Respect to Collateral.
Notwithstanding the foregoing, nothing contained in this Article 10 shall
(i) prohibit the Trustee or Holders of Notes from receiving (or require them to
comply with Section 10.06 hereof with respect to) the Collateral or the proceeds
from the sale of the Collateral pursuant to the terms of this Indenture and the
Collateral Documents or prohibit the Trustee or Holders from applying such
proceeds to the repayment of the Notes or any other obligations under this
Indenture or the Collateral Documents, (ii) prohibit the Company from making any
payments for the purchase of Notes during the Purchase Period as contemplated by
Section 3.08 hereof or any redemption of Notes required by Section 3.08, (iii)
limit, impair or otherwise affect the rights hereunder or under the Collateral
Documents of the Trustee or any Holder with respect to the Collateral, (iv)
prevent the Trustee or any Holder from exercising any available remedy under the
Collateral Documents upon a Default or Event of Default, or (v) limit, impair or
otherwise affect the rights hereunder or under the Collateral Documents of the
Company with respect to the Collateral, including without limitation, the
Company's right to dispose of Collateral pursuant to Article 11 hereof and
repurchase or redeem Notes with the proceeds of any such disposition pursuant to
Section 3.08 hereof.
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01. Pledge Agreement.
The due and punctual payment of the principal of and interest on the Notes
when and as the same shall be due and payable, whether on an interest payment
date, at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent permitted by
law), if any, on the Notes and performance of all other obligations of the
Company to the Holders or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, shall be secured as provided in
the Pledge Agreement which the Company has entered into simultaneously with the
execution of this Indenture. Each Holder, by its acceptance of a Note, consents
and agrees to the terms of the Pledge Agreement (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same
may be in effect or may be amended from time to time in accordance with its
terms and authorizes and directs the Trustee to enter into the Collateral
Documents and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the provisions of
the Collateral Documents, to assure and confirm to the Trustee the security
interest in the Collateral contemplated hereby, by the Collateral Documents or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured thereby, according to the intent and purposes herein expressed. The
Company shall take, upon request of the Trustee, any and all actions reasonably
required to cause the Collateral Documents to create and maintain, as security
for the obligations of the Company hereunder, a valid and enforceable perfected
first priority Lien in and on all of the Collateral in favor of the Trustee for
the benefit of the Holders, superior to and prior to the rights of all third
36
Persons, subject (as to proceeds to the extent a security interest is granted
therein pursuant to the Pledge Agreement) to Section 9-306 of the Uniform
Commercial Code and (as to securities or obligations of HGA or CooperSurgical
issued after the date hereof that become Collateral pursuant to the terms of the
Pledge Agreement or any Substituted Joint Venture Interests or money that
becomes Collateral in the future pursuant to Section 11.03 hereof) to the
delivery of such Collateral to the Trustee when such Collateral arises or the
taking of such other appropriate actions at such time in order to create and
perfect a security interest therein, which actions the Company agrees to take as
promptly as practicable.
Section 11.02. Recording and Opinions.
(a) The Company, to the extent required by applicable law, shall furnish to
the Trustee promptly after the execution and delivery of this Indenture an
Opinion of Counsel either (i) stating that in the opinion of such counsel all
action has been taken with respect to the recording, registering and filing of
this Indenture, financing statements or other instruments necessary to make
effective the Lien intended to be created by the Pledge Agreement, and reciting
the details of such action, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to make such Lien effective.
(b) The Company shall, to the extent required by applicable law, furnish to
the Collateral Agent and the Trustee no later than three months after each
anniversary date of the date of this Indenture, an Opinion of Counsel, dated as
of such date, either (i)
stating that, in the opinion of such counsel, all action has been taken with
respect to the
recording, registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of the
Pledge Agreement and other Collateral Documents, if any, and reciting the
details of such action or referring to prior Opinions of Counsel in which such
details are given or (ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien.
Section 11.03. Disposition of Collateral Without Release.
(a) So long as there is no Event of Default and notice thereof by the
Trustee or the Holders, the Company or any of its Subsidiaries, as the case may
be, may without any release or consent by the Trustee or the Holders:
(i) contribute the Pledged CooperSurgical Securities to a joint
venture (whether in the form of a partnership, corporation or other legal
entity), if the Company substitutes in place of and in exchange for such
Pledged CooperSurgical Securities the securities or other indicia of
ownership of the joint venture received in exchange for such contribution
(the 'Substituted Joint Venture Interests'); provided, that the Fair Value
of such Substituted Joint Venture Interests equals or exceeds the Fair
Value of the Pledged CooperSurgical Securities as of the date of, or a date
reasonably close to the date of, such contribution;
(ii) alternatively (at the option of the Company) (A) sell or
otherwise dispose of the Pledged CooperSurgical Securities, the Substituted
Joint Venture Interests or all or substantially all of the assets of
CooperSurgical, other than in a transaction that is a pledge or grant of a
security interest to secure other Indebtedness (which shall be governed by
Section 11.03(a)(iii)), if the Company deposits with the Trustee or the
Paying Agent pursuant to Section 3.05 hereof an amount equal to (1) the
greater of $5,000,000 or one-third of the Net Proceeds from the sale or
other disposition minus (2) the aggregate principal amount of Notes
previously purchased or redeemed by the Company and delivered to the
Trustee for cancellation or (B) sell or otherwise dispose of the Pledged
CooperSurgical Securities, the Substituted Joint Venture Interests or all
or substantially all of the assets of CooperSurgical, other than in a
transaction that is a pledge or grant of a security interest to secure
other Indebtedness (which shall be governed by Section 11.03(a)(iii)), if
the Company delivers to the Trustee an amount of money as Collateral in
place of and in exchange for the released Pledged CooperSurgical Securities
or the Substituted Joint Venture Interests which amount of money shall be
equal to (1) the greater of $5,000,000 or one-third of such Net Proceeds
minus (2) the aggregate principal amount of Notes previously purchased or
redeemed by the Company and delivered to the Trustee for cancellation; or
37
(iii) alternatively (at the option of the Company) (A) pledge the
Pledged CooperSurgical Securities or the Substituted Joint Venture
Interests as collateral to secure other Indebtedness or incur Indebtedness
secured by all or substantially all of the assets of CooperSurgical, if the
Company deposits with the Trustee or the Paying Agent pursuant to Section
3.05 hereof an amount equal to $5,000,000 minus the aggregate principal
amount of Notes previously purchased or redeemed by the Company and
delivered to the Trustee for cancellation or (B) pledge the Pledged
CooperSurgical Securities or the Substituted Joint Venture Interests as
collateral to secure other Indebtedness or incur Indebtedness secured by
all or substantially all of the assets of CooperSurgical, if the Company
delivers an amount of money to the Trustee as Collateral in place of and in
exchange for the released Pledged CooperSurgical Securities or the
Substituted Joint Venture Interests which amount of money shall be equal to
$5,000,000 minus the aggregate principal amount of Notes previously
purchased or redeemed by the Company and delivered to the Trustee for
cancellation.
(b) No transaction permitted by subsections (i), (ii) or (iii) of Section
11.03(a) shall require any written or oral release by or consent of the Trustee
or the Holders. Nevertheless, upon the request of the Company and the delivery
by the Company to the Trustee of
(i) an Officers' Certificate certifying that no Default or Event of
Default has occurred and is continuing and that the Pledged CooperSurgical
Securities have been or are intended to be contributed, or that the Pledged
CooperSurgical Securities, the Substituted Joint Venture Interests or all
or substantially all of the assets of CooperSurgical have been or are
intended to be sold or otherwise disposed of or pledged or that
Indebtedness secured by all or substantially all of the assets of
CooperSurgical has been or is intended to be incurred, describing such
transaction and stating the applicable subsection of Section 11.03(a)
pursuant to which such transaction has been or is intended to be made, and
that the conditions set forth in the applicable subsection of Section
11.03(a) have been, or simultaneously with or immediately following the
delivery by the Trustee of the Pledged CooperSurgical Securities or the
Substituted Joint Venture Interests pursuant to this Section 11.03(b) will
be, satisfied, and
(ii) in the case of subsections Section 11.03(a)(i) only, (A) an
Appraisal as to the Fair Value of the Pledged CooperSurgical Securities and
the Substituted Joint Venture Interests and (B) an Opinion of Counsel
stating that, in the opinion of such counsel, subject to customary
assumptions, exclusions and exceptions reasonably acceptable to the
Trustee, either (1) all such instruments and documents have been duly and
validly executed and delivered and have been properly recorded, registered
and filed and all such other action has been taken, in each case to the
extent necessary to make effective the security interest in the Substituted
Joint Venture Interests to be substituted for the Pledged CooperSurgical
Securities to be released, and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are given or
(2) no such action is necessary to make the security interest in such
Substituted Joint Venture Interests effective,
the Trustee shall deliver to the Company or upon its order (x) in the case of a
transaction pursuant to Section 11.03(a)(i), any Pledged CooperSurgical
Securities contributed pursuant to such Section 11.03(a)(i), and (y) in the case
of a transaction pursuant to Section 11.03(a)(ii) or 11.03(a)(iii), all of the
Pledged CooperSurgical Securities or Substituted Joint Venture Interests that
are in its possession and shall execute and deliver to the Company or upon its
order such releases or other documents, certificates or instruments as the
Company may reasonably request to evidence the termination of the Lien and
security interest or the release of such Collateral and the Company and any
transferee or pledgee of such Collateral shall be entitled to rely conclusively
on such release or other document, certificate or instrument.
(c) In addition to the right of the Company to engage in transactions
pursuant to Section 11.03(a), the Company may, without any consent by the
Trustee or the Holders, sell or otherwise dispose of, or obtain the release of,
any or all of the Collateral or sell, lease, transfer or otherwise dispose of
all or substantially all of the assets of HGA or CooperSurgical, if the Company
deposits with the Trustee or Paying Agent money sufficient to pay pursuant to
Section 3.07 hereof the redemption price of and accrued and unpaid interest on
all Notes then outstanding and furnishes a notice of redemption pursuant to
Section 3.01 hereof; provided, however, that, in addition, the Company may sell,
lease,
38
transfer or otherwise dispose of any or all of the assets of CooperSurgical
without restriction after the Pledged CooperSurgical Securities are released
from the security interest created by the Pledge Agreement pursuant to any
provision of this Article 11. Simultaneously with the deposit of such money and
the delivery by the Company to the Trustee of an Officers' Certificate complying
with Section 3.01 hereof, the Trustee shall deliver to the Company or upon its
order all of the Collateral in its possession and shall execute and deliver to
the Company or upon its order such releases or other documents, certificates or
instruments as the Company may reasonably request to evidence the termination of
the Lien and security interest or the release of such Collateral and the Company
and any transferee of any such Collateral shall be entitled to rely conclusively
on such release or other document, certificate or instrument.
Section 11.04. Release of Collateral Upon Satisfaction of HGA Consolidated Cash
Flow Test.
(a) Subject to subsection (b) of this Section 11.04 and Section 11.06, the
Pledged CooperSurgical Securities or the Substituted Joint Venture Interests or
any money substituted as Collateral in place of and in exchange for the Pledged
CooperSurgical Securities pursuant to Section 11.03(a)(ii)(B) or
11.03(a)(iii)(B) shall be released from the security interest created by the
Pledge Agreement upon the end of any eight full consecutive fiscal quarters of
the Company if (i) (A) the difference between (1) the product obtained by
multiplying (a) the sum of the amounts of Consolidated Cash Flow of HGA and its
Subsidiaries for each of such eight consecutive fiscal quarters divided by eight
and multiplied by four by (b) 7.0 and (2) the aggregate amount of Indebtedness
of HGA and its Subsidiaries (other than Indebtedness to the Company or any of
its Subsidiaries) outstanding as of the last day of such eighth fiscal quarter
equals or exceeds (B) an amount equal to 115% of the aggregate principal amount
of the Notes outstanding as of the last day of such eighth fiscal quarter and
(ii) (A) the difference between (1) the product obtained by multiplying (a) the
sum of the amounts of Consolidated Cash Flow of HGA and its Subsidiaries for
each of the last four of such eight consecutive fiscal quarters by (b) 7.0 and
(2) the aggregate amount of Indebtedness of HGA and its Subsidiaries (other than
Indebtedness to the Company or any of its Subsidiaries) outstanding as of the
last day of such eighth fiscal quarter equals or exceeds (B) an amount equal to
115% of the aggregate principal amount of the Notes outstanding as of the last
day of such eighth fiscal quarter; provided, however, that the Trustee shall not
release any Lien or security interest on any Collateral pursuant to the
foregoing unless and until it shall have received from the Company an Officers'
Certificate certifying that the conditions precedent set forth in this Section
11.04(a) have been satisfied (referred to in this Indenture as the 'HGA
Consolidated Cash Flow Test') and such other documents required by Section 11.06
hereof. Upon compliance with the above provisions, the Trustee shall deliver to
the Company the Pledged CooperSurgical Securities or any other Property so
released that is in its possession and shall execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of such Collateral.
(b) At any time when a Default or Event of Default shall have occurred and
be continuing and the maturity of the Notes shall have been accelerated (whether
by declaration or otherwise) and the Trustee shall have delivered a notice of
acceleration to the Company, the Company shall not be permitted to request the
release of the Collateral pursuant to this Section 11.04.
Section 11.05. Trust Indenture Act Requirements.
The release of any Collateral from the Liens created by this Indenture and
the Collateral Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the terms of this Indenture and the
Collateral Documents. To the extent applicable, the Company shall cause TIA
SECTION 314(d) to be complied with. Any certificate or opinion required by TIA
SECTION 314(d) may be made by an Officer of the Company except in cases where
TIA SECTION 314(d) requires that such certificate or opinion be made by an
independent person.
39
Section 11.06. Authorization of Actions to Be Taken by the Trustee Under the
Pledge Agreement.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee may,
in its sole discretion and without the consent of the Holders take all actions
it deems necessary or appropriate in order to (a) enforce any of the terms of
the Pledge Agreement and (b) collect and receive any and all amounts payable in
respect of the obligations of the Company hereunder. The Trustee shall have
power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Pledge Agreement or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder and under the Pledge Agreement or be prejudicial to the
interests of the Holders or of the Trustee).
Section 11.07. Authorization of Receipt of Funds by the Trustee Under the Pledge
Agreement.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Pledge Agreement, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
SECTION 11.08. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all obligations of the Company under this
Indenture and the Notes, the Trustee shall, at the request of the Company,
release the Liens pursuant to the terms of this Indenture and the Collateral
Documents.
Section 11.09. Cooperation of Trustee.
In the event that the Company substitutes Collateral or pledges additional
Property as Collateral pursuant to this Article 11, the Trustee shall cooperate
with the Company in reasonably and promptly agreeing to the form of, and
executing as required, any instruments or documents necessary to make effective
the security interest in the Property to be so substituted or pledged. To the
extent practicable, the terms of any security agreement or other instrument or
document necessitated by any such substitution or pledge shall be comparable to
the provisions of the Pledge Agreement, including, but not limited to, Section 6
thereof. Subject to, and in accordance with the requirements of this Article 11
and the terms of the Pledge Agreement, in the event that the Company engages in
any transaction pursuant to Section 11.03, the Trustee shall cooperate with the
Company in order to facilitate such transaction in accordance with any
reasonable time schedule proposed by the Company, including by delivering and
releasing the Collateral in a prompt and reasonable manner.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA SECTION 318(c), the imposed duties shall control.
Section 12.02. Notices.
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:
40
If to the Company:
The Cooper Companies, Inc.
One Bridge Plaza, 6th Floor
Fort Lee, New Jersey 07024
Telecopier No.: (201) 585-5355
Attention: Robert S. Holcombe, Esq.
With a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Telecopier No.: (212) 751-4864
Attention: Samuel A. Fishman, Esq.
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Attention: Corporate Trust Administration
With a copy to:
Whitman Breed Abbott & Morgan
200 Park Avenue
New York, New York 10166
Telecopier No.: (212) 351-3131
Attention: Hollace T. Cohen, Esq.
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders of Notes)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; 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.
Any notice or communication to a Holder of a Note shall be mailed by (i)
first class mail, certified or registered, return receipt requested, or (ii)
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 SECTION 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder of a Note or any
defect in it shall not affect its sufficiency with respect to other Holders of
Notes.
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.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders of the Notes may communicate pursuant to TIA SECTION 312(b) with
other Holders of Notes with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA SECTION 312(c).
41
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 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
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA SECTION 314(a)(4)) shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such person, he 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
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes , this Indenture or any of the Collateral Documents or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
Section 12.08. Governing Law.
This Indenture shall be governed by and construed in accordance with the
laws of the State of New York, without reference to its choice of law
principles.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
42
Section 12.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. 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 shall represent the same
agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table 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.
43
SIGNATURES
Dated as of January 6, 1994 THE COOPER COMPANIES, INC.
ROBERT S. WEISS
BY: ...................................................
NAME: ROBERT S. WEISS
TITLE: Sr. Vice President, Treasurer and
Chief Financial Officer
Attest:
MARISA F. JACOBS
....................................................... (SEAL)
Dated as of January 6, 1994 IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
NANCY R. BESSE
By: ...................................................
NAME: NANCY R. BESSE
TITLE: Vice President
Attest: (SEAL)
THOMAS J. BOGERT
.......................................................
44
EXHIBIT A
(Face of Note)
10% Senior Subordinated Secured Note
due 2003
No. $____________
THE COOPER COMPANIES, INC.
promises to pay to
______________________________
or its registered assigns
the principal sum of
Dollars on June 1, 2003.
Interest Payment Dates: March 1, June 1, September 1, and December 1, commencing
March 1, 1994.
Record Dates: February 15, May 15, August 15, and November 15 (whether or not a
Business Day).
Dated: ____________ ___, _______.
THE COOPER COMPANIES, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
(SEAL)
This is one of the Notes
referred to in the within-
mentioned Indenture:
IBJ SCHRODER BANK & TRUST COMPANY, AS
TRUSTEE
BY: __________________________________
AUTHORIZED SIGNATURE
(Back of Note)
10% Senior Subordinated Secured Note
due 2003
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. The Cooper Companies, Inc., a Delaware corporation (the
'Company'), promises to pay interest on the principal amount of this Note at the
rate and in the manner specified below. The Company shall pay interest on the
principal amount of this Note at the rate per annum of 10%. The Company will pay
interest quarterly on March 1, June 1, September 1 and December 1 of each year,
commencing March 1, 1994, or if any such day is not a Business Day on the next
succeeding Business
A-1
Day (each an 'Interest Payment Date'). Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Interest shall accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from September 1, 1993. To the extent lawful, the Company shall pay
interest on overdue principal at the interest rate borne by the Notes; it shall
pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date next preceding the Interest Payment Date,
even if such Notes are cancelled after such record date and on or before such
Interest Payment Date. The Holder hereof must surrender this Note to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Notes will be payable both as to
principal and interest at the office or agency of the Company maintained for
such purpose or, at the option of the Company, payment of interest may be made
by check mailed to the Holders of Notes at their respective addresses set forth
in the register of Holders of Notes.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company may act
in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture, dated as of
January 6, 1994 (the 'Indenture'), between the Company and the Trustee.
The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code SECTION
77aaa-77bbbb) as in effect on the date of the Indenture. The Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and such
act for a statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes. The Notes are general
obligations of the Company limited to an aggregate principal amount not to
exceed $21,875,000 plus such additional aggregate principal amount of Notes
issued as a result of rounding pursuant to the terms of the Exchange Offer.
5. Collateral. In order to secure the due and punctual payment of the
principal of and interest on the Notes when and as the same shall be due and
payable, in accordance with the terms of the Notes and the Indenture, the
Company has granted security interests in the Collateral, to the Trustee for the
benefit of the Holders. Each Holder, by accepting a Note, agrees to be bound to
all of the terms and provisions of the Collateral Documents, as the same may be
amended from time to time. The Trustee and each Holder acknowledge that a
release of any of the Collateral or Liens in accordance with the terms and
provisions of the Collateral Documents and the Indenture shall not be deemed for
any purpose to impair the security under the Indenture.
6. Optional Redemption. The Company shall have the option to redeem the
Notes, at any time, in whole or in part, upon not less than 30 nor more than 60
days' notice, at a redemption price equal to 100% of their principal amount,
plus accrued and unpaid interest thereon to the applicable redemption date.
7. Mandatory Redemption. The Company shall be required to redeem or
purchase the Notes or a portion thereof in connection with the sale or other
disposition or pledge of certain of the Collateral or the incurrence of certain
specified Indebtedness upon the terms and subject to the conditions set forth in
the Indenture.
8. Notice of Redemption. Notice of redemption shall be mailed 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 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder of Notes are to be redeemed. On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption.
9. Change of Control Offer. If at any time after the Board of Directors
shall have become aware (whether by public filings or otherwise) of a Change of
Control (as defined in the Indenture), then the Company shall, within 30 days,
make a Change of Control Offer to all Holders to purchase 100% of the principal
amount of Notes outstanding as of such date at a purchase price equal to 100% of
the
A-2
principal amount thereof plus accrued and unpaid interest to the date of
purchase. The Change of Control Offer shall remain open for a period of twenty
business days following its commencement and no longer, except to the extent
that a longer period is required by applicable law. No later than five business
days after the termination of the Change of Control Offer the Company shall
purchase all Notes tendered in response to the Change of Control Offer.
10. Subordination. The Notes are subordinated to Senior Debt, which is all
Debt (present or future) created, incurred, assumed or guaranteed by the Company
(and all renewals, extensions or refundings thereof), unless the instrument
under which such Debt is created, incurred, assumed or guaranteed expressly
provides that such Debt is not senior or superior in right of payment to the
Notes. Notwithstanding anything to the contrary in the foregoing, Senior Debt
shall not include (i) any Debt of the Company to any of its Subsidiaries and
(ii) the Old Debentures. Debt is any indebtedness, contingent or otherwise, in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of the Company or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments or letters of credit, or
representing the balance deferred and unpaid of the purchase price of any
Property or interest therein, except any such balance that constitutes a trade
payable, if and to the extent such indebtedness would appear as a liability upon
a balance sheet of the Company prepared on a consolidated basis in accordance
with GAAP. To the extent provided in the Indenture, Senior Debt must be paid.
The Company agrees, and each Holder by accepting a Note agrees, to the
subordination and authorizes the Trustee to give it effect.
11. 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 of a Note,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption. 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.
12. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of, and
interest on, this Note and for all other purposes whatsoever, whether or not
this Note is overdue, and neither the Trustee, any Agent nor the Company shall
be affected by notice to the contrary. The registered Holder of a Note shall be
treated as its owner for all purposes.
13. Amendments, Supplement and Waivers. Subject to certain exceptions, the
Indenture , the Notes or the Collateral Documents may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes, and any existing default or compliance
with any provision of the Indenture , the Notes or the Collateral Documents may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes. Without the consent of any Holder of a Note, the
Indenture , the Notes or the Collateral Documents 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 make any change that
would provide any additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.
14. Defaults and Remedies. Events of Default include: default for 30 days
in the payment when due of interest on the Notes (whether or not prohibited by
the subordination provisions of the Indenture); default in payment of principal
of the Notes (whether or not prohibited by the subordination provisions of the
Indenture) when due and payable at maturity, upon repurchase under Section 4.13
of the Indenture, upon redemption or otherwise; failure by the Company to comply
with other agreements in the Indenture , the Notes or in the Collateral
Documents which failure continues for the period and after the notice specified
in the Indenture; default under any mortgage, indenture or other instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company, HGA or any Subsidiary of HGA
or, unless and until the Pledged
A-3
CooperSurgical Securities are released from the security interest created by the
Pledge Agreement, CooperSurgical or any Subsidiary of CooperSurgical (or the
payment of which is guaranteed by the Company, HGA or any Subsidiary of HGA or,
unless and until the Pledged CooperSurgical Securities are released from the
security interest created by the Pledge Agreement, CooperSurgical or any
Subsidiary of CooperSurgical) whether such Indebtedness or guarantee now exists,
or is created after the date of the Indenture, which default results in the
acceleration of such Indebtedness prior to its express maturity and the
principal amount of any such Indebtedness aggregates $5,000,000 or more (or
$1,500,000 or more if such Indebtedness being accelerated was incurred pursuant
to clause (c), (d) or (g) of the last paragraph of Section 4.07 of the
Indenture); a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any Subsidiary of the Company which judgment remains undischarged for a period
(during which execution shall not be effectively stayed) of 30 days; provided,
that the aggregate of all such judgments exceeds $5,000,000; and certain events
of bankruptcy or insolvency with respect to the Company. If an Event of Default
(other than an Event of Default relating to certain events of bankruptcy or
insolvency with respect to the Company) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
15. Trustee Dealings with Company. The Trustee under the Indenture, 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 Trustee; however, if the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as Trustee or resign.
16. No Personal Liabilities of Directors, Officers, Employees &
Stockholders. No director, officer, employee, agent, manager, stockholder or
other Affiliate of the Company shall have any liability for any obligations of
the Company under the Notes, the Indenture, or any of the Collateral Documents
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder of a Note by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
17. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder of a Note 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).
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of such numbers either as printed on
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the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture and/or the Pledge Agreement. Request may
be made to:
The Cooper Companies, Inc.
One Bridge Plaza, 6th Floor
Fort Lee, New Jersey 07024
Telecopier No.: (201) 585-5355
Attention: Corporate Secretary
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 ________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
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Your Signature: ______________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.13 of the Indenture check the box:
[ ] Section 4.13
If you want to have only part of the Note purchased by the Company pursuant
to Section 4.13 of the Indenture, state the amount you elect to have purchased:
$ ______________________________
Date: ________________________
Your Signature: ______________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee.
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