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Exhibit 4.5
MAXXIM MEDICAL, INC.
Senior Discount Notes due 2010
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INDENTURE
Dated as of November 12, 1999
Wilmington Trust COMPANY
as Trustee
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TABLE OF CONTENTS
ARTICLE 1 Definitions and Incorporation by Reference........................................1
SECTION 1.01. Definitions................................................................1
SECTION 1.02. Other Definitions.........................................................20
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.........................20
SECTION 1.04. Rules of Construction.....................................................21
ARTICLE 2 The Notes........................................................................22
SECTION 2.01. Form and Dating...........................................................22
SECTION 2.02. Execution and Authentication..............................................22
SECTION 2.03. Registrar and Paying Agent................................................22
SECTION 2.04. Paying Agent to Hold Money in Trust.......................................23
SECTION 2.05. Holder Lists..............................................................23
SECTION 2.06. Transfer and Exchange.....................................................24
SECTION 2.07. Replacement Notes.........................................................24
SECTION 2.08. Outstanding Notes.........................................................25
SECTION 2.09. Temporary Notes...........................................................25
SECTION 2.10. Cancellation..............................................................25
SECTION 2.11. Defaulted Interest........................................................26
SECTION 2.12. CUSIP Numbers.............................................................26
ARTICLE 3 Redemption.......................................................................26
SECTION 3.01. Notices to Trustee........................................................26
SECTION 3.03. Notice of Redemption......................................................27
SECTION 3.04. Effect of Notice of Redemption............................................28
SECTION 3.05. Deposit of Redemption Price...............................................28
SECTION 3.06. Notes Redeemed in Part....................................................28
ARTICLE 4 Covenants........................................................................29
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SECTION 4.01. Payment of Notes..........................................................29
SECTION 4.02. SEC Reports...............................................................29
SECTION 4.03. Limitation on Indebtedness................................................29
SECTION 4.04. Limitation on Restricted Payments.........................................32
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries..34
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock........................36
SECTION 4.07. Limitation on Transactions with Affiliates................................39
SECTION 4.08. Change of Control.........................................................40
SECTION 4.09. Compliance Certificate....................................................42
SECTION 4.10. Further Instruments and Acts..............................................42
SECTION 4.11. Limitation on Lines of Business...........................................42
SECTION 4.12. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries...........................................42
SECTION 4.13. Calculation of Original Issue Discount....................................43
ARTICLE 5 Successor Company................................................................43
SECTION 5.01. When Holdings May Merge or Transfer Assets................................43
ARTICLE 6 Defaults and Remedies............................................................44
SECTION 6.01. Events of Default.........................................................44
SECTION 6.02. Acceleration..............................................................46
SECTION 6.03. Other Remedies............................................................46
SECTION 6.04. Waiver of Past Defaults...................................................46
SECTION 6.05. Control by Majority.......................................................46
SECTION 6.06. Limitation on Suits.......................................................47
SECTION 6.07. Rights of Holders to Receive Payment......................................47
SECTION 6.08. Collection Suit by Trustee................................................47
SECTION 6.09. Trustee May File Proofs of Claim..........................................48
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SECTION 6.10. Priorities................................................................48
SECTION 6.11. Undertaking for Costs.....................................................48
SECTION 6.12. Waiver of Stay or Extension Laws..........................................48
ARTICLE 7 Trustee..........................................................................49
SECTION 7.01. Duties of Trustee.........................................................49
SECTION 7.02. Rights of Trustee.........................................................50
SECTION 7.03. Individual Rights of Trustee..............................................51
SECTION 7.04. Trustee's Disclaimer......................................................51
SECTION 7.05. Notice of Defaults........................................................51
SECTION 7.06. Reports by Trustee to Holders.............................................51
SECTION 7.07. Compensation and Indemnity................................................51
SECTION 7.08. Replacement of Trustee....................................................52
SECTION 7.09. Successor Trustee by Merger...............................................53
SECTION 7.10. Eligibility; Disqualification.............................................54
SECTION 7.11. Preferential Collection of Claims Against Holdings........................54
ARTICLE 8 Discharge of Indenture; Defeasance...............................................54
SECTION 8.01. Discharge of Liability on Notes; Defeasance...............................54
SECTION 8.02. Conditions to Defeasance..................................................55
SECTION 8.03. Application of Trust Money................................................56
SECTION 8.04. Repayment to Holdings.....................................................56
SECTION 8.05. Indemnity for Government Obligations......................................56
SECTION 8.06. Reinstatement.............................................................57
ARTICLE 9 Amendments.......................................................................57
SECTION 9.01. Without Consent of Holders................................................57
SECTION 9.02. With Consent of Holders...................................................58
SECTION 9.03. Compliance with Trust Indenture Act.......................................59
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SECTION 9.04. Revocation and Effect of Consents and Waivers............................59
SECTION 9.05. Notation on or Exchange of Notes.........................................59
SECTION 9.06. Trustee to Sign Amendments...............................................59
ARTICLE 10 Miscellaneous....................................................................60
SECTION 10.01. Trust Indenture Act Controls.............................................60
SECTION 10.06. When Notes Disregarded...................................................61
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar.............................62
SECTION 10.08. Legal Holidays...........................................................62
SECTION 10.09. GOVERNING LAW............................................................62
SECTION 10.10. No Recourse Against Others...............................................62
SECTION 10.11. Successors...............................................................62
SECTION 10.12. Multiple Originals.......................................................62
SECTION 10.13. Table of Contents; Headings..............................................63
Appendix A - Provisions Relating to Initial Notes and Exchange Notes
Exhibit A - Form of Initial Definitive Note
Exhibit B - Form of Exchange Note
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INDENTURE dated as of November 12, 1999, between MAXXIM MEDICAL, INC.,
a Texas corporation ("Holdings") and Wilmington Trust Company, a Delaware
banking corporation (acting hereunder not in its individual capacity but solely
as trustee, "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) Holdings' Senior
Discount Notes due 2010 issued on the date hereof (the "Initial Notes") and (b)
if and when issued as provided in the Registration Agreement (as defined in
Appendix A hereto (the "Appendix")) or in this Indenture, Holdings' Senior
Discount Notes due 2010 issued in the Registered Exchange Offer in exchange for
any Initial Notes or otherwise as provided in this Indenture (the "Exchange
Notes" and together with the Initial Notes and any PIK Notes issued hereunder,
the "Notes"). Except as otherwise provided herein, the Notes shall be limited
to $98,473,000 in aggregate principal amount at maturity, plus any additional
PIK Notes issued hereunder.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accreted Value" means, as of any date (the "Specified Date"), the
amount provided below for each $1,000 principal amount at maturity of Notes:
(a) if the Specified Date occurs on one of the following dates on or
prior to November 15, 2004 (each, a "Semi-Annual Accrual Date"), the Accreted
Value shall equal the amount set forth below under the "Accreted Value" column
for such Semi-Annual Accrual Date:
Semi-Annual Accrual Date Accreted Value
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Issue Date $ 507.76
November 15, 1999 $ 508.35
May 15, 2000 $ 543.93
November 15, 2000 $ 582.01
May 15, 2001 $ 622.75
November 15, 2001 $ 666.34
May 15, 2002 $ 712.99
November 15, 2002 $ 762.90
May 15, 2003 $ 816.30
November 15, 2003 $ 873.44
May 15, 2004 $ 934.58
November 15, 2004 $1000.00
; or
(b) if the Specified Date occurs between two Semi-Annual Accrual Dates,
the Accreted Value shall equal the sum of (i) the Accreted Value for the
Semi-Annual Accrual Date immediately preceding such Specified Date and (ii) an
amount equal to the product of (1) the Accreted Value for the immediately
following Semi-Annual Accrual Date less the Accreted Value for the immediately
preceding Semi-Annual Accrual Date multiplied by (2) a fraction, the
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numerator of which is the number of days elapsed from the immediately preceding
Semi-Annual Accrual Date to the Specified Date, using a 360-day year of twelve
30-day months, and the denominator of which is 180 (or, if the Semi-Annual
Accrual Date immediately preceding the Specified Date is the Issue Date, the
denominator of which is 3). In the event the Trustee is required to take any
action which requires the calculation described in the preceding sentence, upon
request by the Trustee, Holdings shall calculate such Accreted Value and set
forth such in an Officers' Certificate; or
(c) If the Specified Date occurs after November 15, 2004, the Accreted
Value shall equal $1,000.
"Additional Amounts" means any liquidated damages payable pursuant to
the Registration Agreement.
"Additional Assets" means (a) any property or assets (other than
Indebtedness and Capital Stock) to be used by Holdings or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by Holdings or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary
described in clauses (b) or (c) above is primarily engaged in a Permitted
Business.
"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 the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power
of the Voting Stock (on a fully diluted basis) of Holdings or the Company or of
rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
Holdings or any Restricted Subsidiary, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of (a) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than Holdings or a
Restricted Subsidiary), (b) all or substantially all the assets of any division
or line of business of Holdings or any Restricted Subsidiary, or (c) any other
assets of Holdings or any Restricted Subsidiary outside of the ordinary course
of business of Holdings or such Restricted Subsidiary; other than, in the case
of (a), (b) and (c) above, (i) a disposition by a Restricted Subsidiary to
Holdings or by Holdings or a Restricted Subsidiary to a Wholly Owned
Subsidiary, (ii) for purposes of Section 4.06 only, a disposition subject to
Section 4.04, (iii) a disposition of assets with a fair market value of less
than $100,000, (iv) a disposition of Temporary Cash Investments or obsolete
equipment or other
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obsolete assets in the course of business consistent with past practices of
Holdings and (v) the disposition of all or substantially all of the assets of
Holdings in a manner permitted in Section 5.01 or any disposition that
constitutes a Change of Control under the Indenture; provided that Section 5.01
or Section 4.08, as the case may be, is complied with.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at 14%,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and the collateral documents relating thereto
and any Refinancing Indebtedness with respect thereto, as amended from time to
time, including principal, premium, if any, interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations and all other amounts payable thereunder or in
respect thereof.
"Board of Directors" means the Board of Directors of Holdings or any
committee thereof duly authorized to act on behalf of the Board of Directors of
Holdings.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Capitalized Lease Obligations" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined
in accordance with GAAP; and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be prepaid by the lessee without payment
of a penalty.
"Circon" means Circon Corporation, a Delaware corporation.
"Circon Note" means a promissory note that may be issued in connection
with, or prior to the consummation of, the Transactions by Circon to Holdings
or a Restricted Subsidiary as a dividend payment.
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"Change of Control" means the occurrence of any of the following events:
(a) prior to the first public offering of common stock of Holdings, the
Permitted Holders, taken together, cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a majority in the aggregate of the total voting power of the
Voting Stock of Holdings, whether as a result of the issuance of securities of
Holdings, any merger, consolidation, liquidation or dissolution of Holdings,
any direct or indirect transfer of securities by any Permitted Holder or
otherwise (for purposes of this clause (a) and clause (b) below, the Permitted
Holders shall be deemed to beneficially own any Voting Stock of an entity (the
"specified entity") held by any other entity (the "parent entity") so long as
the Permitted Holders beneficially own, directly or indirectly, in the
aggregate a majority of the voting power of the Voting Stock of the parent
entity);
(b) (i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or becomes
the beneficial owner (as defined in clause (a) above, except that for purposes
of this clause (b) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock of
Holdings and (ii) the Permitted Holders "beneficially own" (as defined in
clause (a) above), directly or indirectly, in the aggregate a lesser percentage
of the total voting power of the Voting Stock of Holdings than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of Holdings (for the purposes of this clause (b), such other person
shall be deemed to beneficially own any Voting Stock of a specified entity held
by a parent entity, if such other person is the beneficial owner (as defined in
this clause (b)), directly or indirectly, of more than 35% of the voting power
of the Voting Stock of such parent entity and the Permitted Holders
"beneficially own" (as defined in clause (a) above), directly or indirectly, in
the aggregate a lesser percentage of the voting power of the Voting Stock of
such parent entity and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the
board of directors of such parent entity);
(c) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of Holdings
(together with any new directors (i) whose election by such Board of Directors
of Holdings, or whose nomination for election by the shareholders of Holdings,
was approved by a majority vote of the directors of Holdings then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved or (ii) who are
designees of the Permitted Holders or were nominated by the Permitted Holders)
cease for any reason to constitute a majority of the Board of Directors of
Holdings then in office;
(d) the adoption of a plan relating to the liquidation or dissolution
of Holdings; or
(e) the merger or consolidation of Holdings with or into another Person
or the merger of another Person with or into Holdings, or the sale of all or
substantially all the assets of Holdings to another Person (other than a Person
that is controlled by the Permitted Holders), and, in the case of any such
merger or consolidation, the securities of Holdings that are outstanding
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immediately prior to such transaction and that represent 100% of the aggregate
voting power of the Voting Stock of Holdings are changed into or exchanged for
cash, securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting
power of the Voting Stock of the surviving Person or transferee.
"Closing Date" means the original date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Maxxim Medical Group, Inc., a Delaware corporation.
"Company Guarantor" means Holdings and each Subsidiary of the Company
which has at such time guaranteed the obligations of the Company under the
Company Notes.
"Company Indenture" means the Indenture, dated as of November 12, 1999,
among the Company, the Company Guarantors and The Bank of New York, as trustee,
providing for the issuance of the Company Notes.
"Company Note Guarantee" means each guarantee of the obligations with
respect to the Company Notes issued by a Company Guarantor pursuant to the
terms of the Company Indenture.
"Company Notes" means the Company's Senior Subordinated Discount Notes
due 2009 issued pursuant to the Company Indenture.
"Company Refinancing Indebtedness" means Refinancing Indebtedness as
defined in the Company Indenture as in effect on the date hereof.
"Consolidated Coverage Ratio" means, as of any date of determination,
the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at the end of the most recent
fiscal quarter for which financial statements are publicly available or are
otherwise provided pursuant to the Purchase Agreement, to (b) Consolidated
Interest Expense for such four fiscal quarters; provided, however, that (i) if
Holdings or any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of determination
or if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the first day of such
period, (ii) if Holdings or any Restricted Subsidiary has repaid, repurchased,
defeased or otherwise discharged any Indebtedness since the beginning of such
period or if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged on the date of the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio, EBITDA and Consolidated Interest
Expense for such period shall be calculated on a pro forma
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basis as if such discharge had occurred on the first day of such period and as
if Holdings or such Restricted Subsidiary has not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness, (iii) if since the beginning of such period Holdings or any
Restricted Subsidiary shall have made any Asset Disposition, the EBITDA for
such period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA (if
negative) directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of
Holdings or any Restricted Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to Holdings and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent Holdings and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such sale), (iv)
if since the beginning of such period Holdings or any Restricted Subsidiary (by
merger or otherwise) shall have made an Investment in any Restricted Subsidiary
(or any Person that subsequently became a Restricted Subsidiary or was merged
with or into Holdings or any Restricted Subsidiary since the beginning of such
period) or an acquisition of assets (including by acquisition of the Capital
Stock of an entity that becomes a Restricted Subsidiary), including any
acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially all of
an operating unit of a business, a product line or a line of business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness)
as if such Investment or acquisition occurred on the first day of such period
and (v) if since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into Holdings or any
Restricted Subsidiary since the beginning of such period) shall have made any
Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by
Holdings or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of
assets occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an Investment, acquisition of assets or Capital Stock or Asset
Disposition under clauses (iii), (iv) or (v) above, the pro forma calculations
shall be determined in good faith by a responsible financial or accounting
Officer of Holdings and shall include those adjustments permitted in accordance
with GAAP and/or Article XI of Regulation S-X (or any successor thereto)
promulgated by the SEC. Notwithstanding the foregoing, with respect to any
Investment or acquisition of assets or Capital Stock (in each case, by merger
or otherwise), any such pro forma calculations may include the annualized
amount of operating expense reductions (net of any annualized expenses
(including interest expense) incurred to achieve such operating expense
reductions) for such period resulting from the acquisition or other transaction
which is being given pro forma effect that have been realized or for which the
steps necessary for realization have been taken or are reasonably expected to
be taken within six months following any such acquisition or other transaction,
including but not limited to, the execution or termination of any contracts,
the termination of any
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personnel or the closing (or approval by the Board of Directors of Holdings of
the closing) of any facility, as applicable. In addition, and notwithstanding
the foregoing, for purposes of calculating the Consolidated Coverage Ratio, as
of any date of determination, pro forma effect may be given to the annualized
amount of operating expense reductions (net of any annualized expenses
(including interest expense) incurred to achieve such operating expense
reductions) resulting from any acquisitions or other transactions occurring in
either of the two fiscal quarters prior to the four quarter reference period
for which the Consolidated Coverage Ratio is being calculated, provided that
(1) such acquisition or other transaction would have been given pro forma
effect under clause (iv) or (v) above had it occurred in the four quarter
reference period for which the Consolidated Coverage Ratio is being calculated
and (2) such operating expense reductions have been realized, or the steps
necessary for realization have been taken or are reasonably expected to be
taken within six months following any such acquisition or other transaction,
including the steps described in the immediately preceding sentence. In
connection with any pro forma adjustment or adjustments made pursuant to either
of the two immediately preceding sentences, such adjustment or adjustments
shall be set forth in an Officers' Certificate signed by Holdings' Chief
Financial Officer and another Officer which states (x) the amount of such
adjustment or adjustments, (y) that such adjustment or adjustments are based on
the reasonable good faith beliefs of the Officers executing such Officers'
Certificate at the time of such execution and (z) that any related Incurrence
of Indebtedness is permitted pursuant to this Indenture.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term as at the date of determination in excess of twelve months). In
addition, for purposes of the computations referred to in clauses (i) and (ii)
above, interest expense on any Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period.
"Consolidated Current Liabilities" as of any date of determination
means the aggregate amount of liabilities of Holdings and its Consolidated
Restricted Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated), on a Consolidated basis, after
eliminating: (a) all intercompany items between Holdings and any Restricted
Subsidiary; and (b) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total
interest expense of Holdings and its Consolidated Restricted Subsidiaries, to
the extent such interest expense was deducted in computing Consolidated Net
Income plus, to the extent Incurred by Holdings and its Consolidated Restricted
Subsidiaries in such period but not included in such interest expense, (a)
interest expense attributable to Capitalized Lease Obligations and interest
expense attributable to leases constituting part of a Sale/Leaseback
Transaction; (b) amortization of debt discount and debt issuance costs (other
than (i) debt issuance costs incurred in connection with the Transactions and
(ii) any other debt issuance costs incurred in amounts, and on terms, that are
customary and reasonable in light of then prevailing market conditions); (c)
capitalized interest;
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(d) noncash interest expense; (e) amortization of, or other charges for,
commissions, discounts and other fees and charges attributable to letters of
credit and bankers' acceptance financing; (f) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is guaranteed
by Holdings or any Restricted Subsidiary; (g) amortization of net costs
associated with Hedging Obligations (including amortization of fees); (h)
dividends in respect of all Disqualified Stock of Holdings and all Preferred
Stock of any of the Subsidiaries of Holdings, to the extent held by Persons
other than Holdings or a Wholly Owned Subsidiary; (i) interest Incurred in
connection with investments in discontinued operations; and (j) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than Holdings and its Consolidated Restricted
Subsidiaries) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of
Holdings and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than Holdings) if such
Person is not a Restricted Subsidiary, except that (i) subject to the
limitations contained in clause (d) below, Holdings' equity in the net income
of any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash or the Fair Market Value of other
assets actually distributed by such Person during such period to Holdings or a
Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution made to a Restricted Subsidiary, to the
limitations contained in clause (c) below) and (ii) the Holdings' equity in a
net loss of any such Person for such period shall be included in determining
such Consolidated Net Income (but only to the extent (cumulative of such
losses) of Holdings' Investment in such Person);
(b) any net income (or loss) of any Person acquired by Holdings or a
Subsidiary of Holdings in a pooling of interests transaction for any period
prior to the date of such acquisition;
(c) any net income of any Restricted Subsidiary (other than the
Company) to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of its net income is not, at the
date of determination, permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of the
terms of its charter, or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders (in either case other than the Company), unless
such restrictions with respect to the payment of dividends or similar
distributions have been legally waived, except that the net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(d) any gain (but not loss) realized upon the sale or other
disposition of any asset of Holdings or its Consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) that is not sold or
otherwise disposed of in the ordinary course of business and any gain (but not
loss) realized upon the sale or other disposition of any Capital Stock of any
Person;
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(e) any extraordinary or otherwise nonrecurring gain or loss; and
(f) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries
to Holdings or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under Section
4.04(a)(iv)(3)(E)(x).
"Consolidated Net Tangible Assets" as of any date of determination,
means the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable reserves
and other properly deductible items) which would appear on a consolidated
balance sheet of Holdings and its Consolidated Restricted Subsidiaries,
determined on a Consolidated basis in accordance with GAAP, and after giving
effect to purchase accounting and after deducting therefrom Consolidated
Current Liabilities and, to the extent otherwise included, the amounts of: (a)
minority interests in Consolidated Subsidiaries held by Persons other than
Holdings or a Restricted Subsidiary; (b) excess of cost over fair value of
assets of businesses acquired, as determined in good faith by the Board of
Directors of Holdings; (c) any revaluation or other write-up in book value of
assets subsequent to the Closing Date as a result of a change in the method of
valuation in accordance with GAAP consistently applied; (d) unamortized debt
discount and expenses and other unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items; (e) treasury
stock; (f) cash set apart and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital Stock
to the extent such obligation is not reflected in Consolidated Current
Liabilities; and (g) Investments in and assets of Unrestricted Subsidiaries.
"Consolidation" means the consolidation of the amounts of each of the
Restricted Subsidiaries with those of Holdings in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of Holdings or any Restricted Subsidiary in an Unrestricted Subsidiary shall be
accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of November 12,
1999 among the Company, Holdings, The Chase Manhattan Bank, as administrative
agent and collateral agent, Bankers Trust Company, as co-syndication agent,
Merrill Lynch Capital Corporation, as co-syndication agent, Credit Suisse First
Boston, as co-documentation agent, Canadian Imperial Bank of Commerce, as
co-documentation agent, and the lenders party thereto, as amended, waived or
otherwise modified from time to time (except to the extent that any such
amendment, waiver or other modification thereto would be prohibited by the
terms of this Indenture, unless otherwise agreed to by the Holders of at least
a majority in aggregate principal amount at maturity of Notes at the time
outstanding).
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"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Debt Tender Offer" means the debt tender offer to acquire up to $100.0
million of Existing Notes in connection with the Transactions.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Noncash Consideration" means noncash consideration received
by Holdings or a Restricted Subsidiary in connection with an Asset Disposition
that is so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate that sets forth the basis for valuing such Designated
Noncash Consideration.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise; (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of Holdings or a Restricted Subsidiary,
provided that any such conversion or exchange shall be deemed an issuance of
Indebtedness or Disqualified Stock, as applicable); or (c) is redeemable at the
option of the holder thereof, in whole or in part, in the case of each of
clauses (a), (b) and (c) on or prior to the first anniversary of the Stated
Maturity of the Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior
to the first anniversary of the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions of Sections 4.06 and 4.08.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of Holdings
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest
Expense, (c) depreciation expense of Holdings and its Consolidated Restricted
Subsidiaries, (d) amortization expense of Holdings and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period) and (e) all other noncash
charges of Holdings and its Consolidated Restricted Subsidiaries (excluding any
such noncash charge to the extent it represents an accrual of or reserve for
cash expenditures in any future period, but that will not be expensed in such
future periods) less all noncash items of income of Holdings and its
Consolidated Restricted Subsidiaries (other than noncash items representing an
accrual or reserve for cash to be received in any future period but that will
not be treated as income in such future periods), in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges less all
noncash items of income of, a Restricted Subsidiary of Holdings (other than the
Company) shall be added to Consolidated Net Income to compute EBITDA only to
the extent (and in the same proportion)
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that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted
at the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Equity Offering" means any public or private sale of Capital Stock
(other than Disqualified Stock) of Holdings, other than offerings of Holdings
of the type that can be registered on Form S-8 (or any successor form) pursuant
to the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Notes" means the 10 1/2% Senior Subordinated Notes due 2006
of Holdings prior to the Closing Date and the Company from and after the
Closing Date.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Except as required by
the next sentence, Fair Market Value will be determined in good faith by the
Board of Directors of Holdings, whose determination shall be conclusive and
evidenced by a resolution of the Board of Directors of Holdings. For purposes
of the definition of "Consolidated Net Income" and Section 4.06, the Fair
Market Value of assets or property, other than cash, which involves an
aggregate amount in excess of $10.0 million, shall have been determined in
writing by a nationally recognized appraisal, accounting or investment banking
firm.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including those set
forth in (a) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP, except as specifically provided herein.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of any Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that
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the term "guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business. The term "guarantee" used as a verb has a
corresponding meaning. The term "guarantor" shall mean any Person guaranteeing
any obligation.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Note is registered on the
registrar's books.
"Holdings" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person is merged or consolidated with Holdings
or becomes a Subsidiary of Holdings (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time of such merger or consolidation or at the time it becomes a Subsidiary of
Holdings. The term "Incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-cash interest bearing or other
discount security or addition of interest to principal on a pay-in-kind
security (including the issuance of PIK Notes hereunder) shall not be deemed
the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of indebtedness of
such Person for borrowed money;
(b) the principal of and premium (if any) in respect of obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables and contingent
obligations to pay earn-outs, which earn-out obligations are not reflected as
indebtedness on the balance sheet of such Person), which purchase price is due
more than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services;
(e) all Capitalized Lease Obligations and all Attributable Debt of such
Person;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary of such Person, any Preferred Stock (but excluding,
in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount
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of Indebtedness of such Person shall be the lesser of (i) the Fair Market Value
of such asset at such date of determination and (ii) the amount of such
Indebtedness of such other Persons;
(h) to the extent not otherwise included in this definition, Hedging
Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a) through
(h) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
except as provided above, the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at
such date.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Rate Agreement" means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement as to which such Person is party or a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall include the
portion (proportionate to Holdings' equity interest in such Subsidiary) of the
Fair Market Value of the net assets of any Subsidiary of Holdings at the time
that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, Holdings shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(i) Holdings' "Investment" in such Subsidiary at the time of such redesignation
less (ii) the portion (proportionate to Holdings' equity interest in such
Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at
the time of such redesignation; and (b) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of
such transfer.
"Issue Date" means the date on which the Initial Notes are originally
issued.
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"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Management Group" means the group consisting of current and former
directors and executive officers of the Company or Holdings.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and
proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of the assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other noncash form)
therefrom, in each case net of (a) all legal fees and expenses, title and
recording tax expenses, commissions and other fees and expenses incurred
(including any out-of-pocket expenses relating to the relocation of assets or
personnel, any severance or other personnel costs and any other out-of-pocket
expenses of a similar nature, in each case incurred within twelve months of
such Asset Disposition), and all federal, state, provincial, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (b) all payments, including any
prepayment premiums or penalties, made on any Indebtedness that is secured by
any assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a necessary consent
to such Asset Disposition, or by applicable law be repaid out of the proceeds
from such Asset Disposition, (c) all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition and (d) appropriate amounts to be provided by
the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed of in such Asset
Disposition and retained by Holdings or any Restricted Subsidiary after such
Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, any Vice President, the Treasurer
or the Secretary of Holdings.
"Officers' Certificate" means a certificate signed by two Officers,
except with respect to the Trustee, in which case it will mean a certificate
signed by a Trust Officer.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to
Holdings or the Trustee.
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"Permitted Business" means any business engaged in by Holdings or any
Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Holders" means Fox Paine Capital Fund, L.P. and its
Affiliates, FPC Investors, L.P., Maxxim Coinvestment Fund I, LLC, Maxxim
Coinvestment Fund II, LLC, Maxxim Coinvestment Fund III, LLC, Maxxim
Coinvestment Fund IV, LLC, Maxxim Coinvestment Fund V, LLC, any Person acting
in the capacity of an underwriter in connection with a public or private
offering of Holding's Capital Stock or, at any time that the Purchasers and
their Affiliates own less than a majority in aggregate principal amount of
Notes at maturity at the time outstanding, the Management Group.
"Permitted Investment" means an Investment by Holdings or any
Restricted Subsidiary in (a) Holdings, a Restricted Subsidiary or a Person that
will, upon the making of such Investment (including the purchase of its Capital
Stock), become a Restricted Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is a Permitted Business; (b) another
Person if as a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its
assets to, Holdings or a Restricted Subsidiary; provided, however, that such
Person's primary business is a Permitted Business; (c) Temporary Cash
Investments; (d) receivables owing to Holdings or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as Holdings or any
such Restricted Subsidiary deems reasonable under the circumstances; (e)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (f) any loans or
advances to employees or consultants made in the ordinary course of business
consistent with past practices of Holdings or such Restricted Subsidiary and
not exceeding $5.0 million in the aggregate outstanding at any one time; (g)
stock, obligations or securities received in settlement of (or foreclosure with
respect to) debts created in the ordinary course of business and owing to
Holdings or any Restricted Subsidiary or in satisfaction of judgments; (h) any
Person to the extent such Investment represents the noncash or deemed cash
portion of the consideration received for an Asset Disposition that was made
pursuant to and in compliance with Section 4.06; (i) (x) any Investment
existing on the Closing Date and (y) in the case of loans and advances made to
employees or consultants and existing on the Closing Date, such loans and
advances and any extensions or Refinancings thereof; (j) Hedging Obligations
permitted under Section 4.03(b)(vii); (k) guarantees of Indebtedness permitted
under Section 4.03; (l) the Circon Note; (m) Investments which are made
exclusively with Capital Stock of Holdings (other than Disqualified Stock); and
(n) additional Investments having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (n) that are
at the time outstanding, not to exceed $10.0 million at the time of such
Investment (with the Fair Market Value of each Investment being measured at the
time made and without giving effect to subsequent changes in value).
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PIK Notes" has the meaning ascribed thereto in Exhibits A and B hereto.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) that is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"principal" of a Note at any time means the Accreted Value of the Note
at the relevant time, plus the premium, if any, payable on the Note which is
due or overdue or is to become due at the relevant time.
"Public Equity Offering" means an underwritten primary public offering
of common stock of Holdings pursuant to an effective registration statement
under the Securities Act.
"Purchase Agreement" means the Purchase Agreement, dated November 12,
1999, between Holdings and the Purchasers pursuant to which the Initial Notes
were issued.
"Purchasers" has the meaning ascribed thereto in the Purchase Agreement.
"Purchase Money Indebtedness" means Indebtedness (a) consisting of the
deferred purchase price of an asset or Capital Stock, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Indebtedness does
not exceed the anticipated useful life of the asset being financed, and (b)
incurred to finance the acquisition by Holdings or a Restricted Subsidiary of
such asset or Capital Stock, including additions and improvements; provided,
however, that such Indebtedness is incurred within 180 days before or after the
acquisition by Holdings or such Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, replace, prepay, redeem, defease or retire, or to
issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, repay, redeem, retire, renew, repay or extend
(including pursuant to any defeasance or discharge mechanism) any Indebtedness
of Holdings or any Restricted Subsidiary existing on the Closing Date or
Incurred in compliance with this Indenture including Indebtedness of Holdings
or the Company that Refinances Refinancing Indebtedness; provided, however,
that (a) other than with respect to Bank Indebtedness or the Company Notes, the
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced; (b) other than with respect to
Bank Indebtedness or the Company Notes, the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is
equal to or greater than the Average Life of the Indebtedness being Refinanced;
(c) such
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Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced (or, in the case of Bank Indebtedness, in an aggregate
principal amount of commitments or loans thereunder of up to $310.0 million
less the aggregate amount of prepayments of Bank Indebtedness pursuant to
Section 4.06); and (d) if the Indebtedness being Refinanced is subordinated in
right of payment to the Notes, such Refinancing Indebtedness is subordinated in
right of payment to the Notes at least to the same extent as the Indebtedness
being Refinanced; provided further, however, that Refinancing Indebtedness
shall not include (i) Indebtedness of a Restricted Subsidiary that Refinances
Indebtedness of Holdings or (ii) Indebtedness of Holdings or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Assets" means (a) assets used or useful in a Permitted
Business or (b) equity interests representing a majority of the Voting Stock of
Persons engaged in a Permitted Business.
"Related Business" means any business related, ancillary or
complementary to the businesses of Holdings and the Restricted Subsidiaries on
the Closing Date.
"Restricted Subsidiary" means any Subsidiary of Holdings other than an
Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired by Holdings or a Restricted Subsidiary whereby
Holdings or a Restricted Subsidiary transfers such property to a Person and
Holdings or such Restricted Subsidiary leases it from such Person, other than
leases between Holdings and a Wholly Owned Subsidiary or between Wholly Owned
Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of Holdings secured by a
Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Services Agreement" means the Services Agreement to be entered into by
Circon, Circon Holdings Corporation, the Company and Holdings in connection
with the Transactions.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of Holdings within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
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"Subordinated Obligation" means any Indebtedness of Holdings (whether
outstanding on the Closing Date or thereafter Incurred) that is subordinate or
junior in right of payment to the Notes pursuant to a written agreement.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity: (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held; or (b) that is, as
of such date, otherwise controlled by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Temporary Cash Investments" means any of the following: (a) any
investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency
thereof, (b) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company that is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $250.0 million (or the foreign
currency equivalent thereof) and whose long-term debt is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act), (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above, (d)
investments in commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate of the
Company) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with
a rating at the time as of which any investment therein is made of "P-1" (or
higher) according to Moody's Investors Service, Inc. ("Moody's") or "A-1" (or
higher) according to Standard and Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc. ("S&P"), and (e) investments in securities with
maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Moody's.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
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"Transactions" has the meaning set forth in the Purchase Agreement
relating to the sale of the Notes.
"Trustee" means the party named as such in this Indenture, not in its
individual capacity but solely as a trustee, until a successor replaces it and,
thereafter, means the successor.
"Trust Officer" means any officer or an authorized signatory within the
corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the persons who at the time shall be such
officer, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of the
Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of Holdings that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of Holdings in the manner provided below and (b) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of Holdings
may designate any Subsidiary of Holdings (including any newly acquired or newly
formed Subsidiary of Holdings) to be an Unrestricted Subsidiary other than the
Company or any other Subsidiary that owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (i) the Subsidiary to be so
designated has total Consolidated assets of $1,000 or less or (ii) if such
Subsidiary has Consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.04. The Board of Directors of Holdings may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (i) Holdings
could Incur $1.00 of additional Indebtedness under Section 4.03(a) and (ii) no
Default shall have occurred and be continuing. Any such designation of a
Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the Board
of Directors of Holdings shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution of the Board of Directors of Holdings
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
that are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
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"Wholly Owned Subsidiary" means a Restricted Subsidiary of Holdings all
the Capital Stock of which (other than directors' qualifying shares) is owned
Holdings or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" 4.07(a)
"Appendix" Preamble
"Bankruptcy Law" 6.01
"beneficially own" 1.01
"Change of Control Offer" 4.08(b)
"covenant defeasance option" 8.01(b)
"Custodian" 6.01
"Definitive Note" Appendix A
"Event of Default" 6.01
"Exchange Notes" Preamble
"Global Exchange Notes" Appendix A
"incorporated provision" 13.01
"Initial Notes" Preamble
"legal defeasance option" 8.01(b)
"Legal Holiday" 13.08
"Notes Custodian" Appendix A
"Notice of Default" 6.01
"Offer" 4.06(b)
"Offer Amount". 4.06(c)(ii)
"Offer Period". 4.06(c)(ii)
"protected purchaser" 2.07
"Purchase Date" 4.06(c)(i)
"Redemption Price" 3.03(a)(ii)
"Registered Exchange Offer" Appendix A
"Registrar".... 2.03
"Registration Agreement" Appendix A
"Restricted Payment" 4.04(a)
"Successor Company" 5.01(a)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which
are incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"Commission" means the SEC.
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"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means Holdings and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security (other than the Notes) at any date shall be the principal
amount thereof that would be shown on a balance sheet of the issuer dated such
date prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater.
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ARTICLE 2
The Notes
SECTION 2.01. Form and Dating.
Provisions relating to the Initial Notes and the Exchange Notes are set
forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The Initial Notes and the Trustee's certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture.
The Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which Holdings is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable Holdings). Each Note shall be
dated the date of its authentication. The Notes shall be issuable only in
registered form without interest coupons and only in denominations of $1,000
(in principal amount at maturity) and integral multiples thereof.
SECTION 2.02. Execution and Authentication.
One Officer shall sign the Notes for Holdings by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery Notes as
set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable
to Holdings to authenticate the Notes. Any such appointment shall be evidenced
by an instrument signed by a Trust Officer, a copy of which shall be furnished
to Holdings. 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 any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent.
(a) Holdings shall maintain an office or agency, which shall be
located in the Borough of Manhattan, The City of New York, where Notes may be
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Notes may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Notes and of their
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transfer and exchange. Holdings may have one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent, and the term "Registrar" includes any co-registrars. Holdings
initially appoints the Trustee as (i) Registrar and Paying Agent in connection
with the Notes (however, for the purpose of meeting the requirement of an
office in the Borough of Manhattan, Harris Trust Company of New York shall
serve in such capacity) and (ii) the Notes Custodian with respect to the Global
Exchange Notes.
(b) Holdings shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. Holdings shall notify the Trustee
of the name and address of any such agent. If Holdings fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such (however, the
requirement of an office in New York shall not apply to Wilmington Trust
Company) and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07. Holdings or any of its domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
(c) Holdings may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered
into by Holdings and such successor Registrar or Paying Agent, as the case may
be, and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent
may resign at any time upon written notice to Holdings and the Trustee;
provided, however, that the Trustee may resign as Paying Agent or Registrar
only if the Trustee also resigns as Trustee in accordance with Section 7.08.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Prior to each due date of the principal of and interest on, any Note,
Holdings shall deposit with the Paying Agent (or if Holdings or a Subsidiary is
acting as Paying Agent, segregate and hold in trust for the benefit of the
Persons entitled thereto) a sum sufficient to pay such principal and interest
when so becoming due. Holdings 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 Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes and shall notify the Trustee
of any default by Holdings in making any such payment. If Holdings or a
Subsidiary of Holdings acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. Holdings at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with
this Section 2.04, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, Holdings shall furnish, or cause
the Registrar to furnish, to the Trustee, in writing at least five Business
Days before each interest payment date and at such other times as the Trustee
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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.
SECTION 2.06. Transfer and Exchange.
The Notes shall be issued in registered form and shall be transferable
only upon the surrender of a Note for registration of transfer and in
compliance with the Appendix. When a Note is presented to the Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements therefor are met. When Notes are presented to the
Registrar with a request to exchange them for an equal principal amount at
maturity of Notes of other denominations, the Registrar shall make the exchange
as requested if the same requirements are met. To permit registration of
transfers and exchanges, Holdings shall execute and the Trustee shall
authenticate Notes at the Registrar's request. The Registrar and Holdings may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section 2.06. Holdings shall not be required to make and the Registrar
need not register transfers or exchanges of Notes selected for redemption
(except, in the case of Notes to be redeemed in part, the portion thereof not
to be redeemed) or any Notes for a period of 15 days before a selection of
Notes to be redeemed.
Prior to the due presentation for registration of transfer of any Note,
Holdings, the Trustee, the Paying Agent and the Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and (subject to
paragraph 2 of the Notes) interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and none of Holdings,
the Paying Agent, the Trustee or the Registrar shall be affected by notice to
the contrary.
Any Holder of a Global Exchange Note shall, by acceptance of such
Global Exchange Note, agree that transfers of beneficial interest in such
Global Exchange Note may be effected only through a book-entry system
maintained by (a) the Holder of such Global Exchange Note (or its agent) or (b)
any Holder of a beneficial interest in such Global Exchange Note, and that
ownership of a beneficial interest in such Global Exchange Note shall be
required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken,
Holdings shall issue, if the requirements of Section 8-405 of the Uniform
Commercial Code are met, and the Trustee shall authenticate, a replacement
Note, such that the Holder (a) satisfies Holdings or the Trustee within a
reasonable time after such Holder has notice of such loss, destruction or
wrongful taking and the Registrar does not register a transfer prior to
receiving such notification, (b) makes such request to Holdings or the Trustee
prior to the Note being acquired by a protected purchaser as defined in
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Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and (c)
satisfies any other reasonable requirements of Holdings or the Trustee, as the
case may be. If required by the Trustee or Holdings, such Holder shall furnish
an indemnity bond sufficient in the judgment of the Trustee to protect
Holdings, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Note is replaced. Holdings and the Trustee may
charge the Holder for their expenses in replacing a Note. In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become or is about to
become due and payable, Holdings in its discretion may pay such Note instead of
issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of Holdings.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. Subject to Section
10.06, a Note does not cease to be outstanding because Holdings or an Affiliate
of Holdings holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and Holdings receive proof satisfactory to them
that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest and Additional Amounts, if any, payable on that date
with respect to the Notes (or portions thereof) to be redeemed or maturing, as
the case may be, and the Paying Agent is not notified that it is prohibited
from paying such money to the Holders on that date pursuant to the terms of
this Indenture, then on and after that date such Notes (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Notes.
Until Definitive Notes are ready for delivery, Holdings 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
Holdings considers appropriate for temporary Notes. Without unreasonable delay,
Holdings shall prepare and the Trustee shall authenticate Definitive Notes and
deliver them in exchange for temporary Notes upon surrender of such temporary
Notes at the office or agency of the Registrar without charge to the Holder.
SECTION 2.10. Cancellation.
Holdings at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration
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of transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and deliver canceled Notes to Holdings. Holdings may not issue new
Notes to replace Notes it has redeemed, paid or delivered to the Trustee for
cancellation. The Trustee shall not authenticate Notes in place of canceled
Notes other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest.
If Holdings defaults in a payment of interest on the Notes, Holdings
shall pay the defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. Holdings may pay the defaulted
interest to the Persons who are Holders on a subsequent special record date.
Holdings shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall promptly
mail or cause to be mailed to each Holder and the Trustee a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid.
SECTION 2.12. CUSIP Numbers.
Holdings in issuing the Notes may use "CUSIP" or "Private Placement"
numbers (as applicable) and, if so, the Trustee shall use "CUSIP" or "Private
Placement" numbers (as applicable) in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Notes,
and any such redemption shall not be affected by any defect in or omission of
such numbers. Holdings will promptly notify the Trustee of any change in the
"CUSIP" or "Private Placement" numbers (as applicable).
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee.
If Holdings elects to redeem Notes pursuant to Section 4.08(e) or
paragraph 5 of the Notes, it shall notify the Trustee in writing of the
redemption date and the principal amount at maturity of Notes to be redeemed.
Holdings shall give each notice to the Trustee provided for in this
Section 3.01 at least 30 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate specifying the Accreted Value calculated as described in this
Indenture and an Opinion of Counsel from Holdings to the effect that such
redemption will comply with the conditions herein. If fewer than all the Notes
are to be redeemed, the record date relating to such redemption shall be
selected by Holdings and given to the Trustee, which record date shall be not
fewer than 15 days after the date of notice to the Trustee. Any such notice may
be canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
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SECTION 3.02. Selection of Notes To Be Redeemed. If fewer than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro
rata or by lot or by a method that the Trustee in its sole discretion shall
deem to be fair and appropriate (and in such manner as complies with applicable
legal requirements). The Trustee shall make the selection from outstanding
Notes not previously called for redemption. The Trustee may select for
redemption portions of the principal amount at maturity of Notes that have
denominations larger than $1,000. Notes and portions thereof that the Trustee
selects shall be in principal amounts at maturity of $1,000 or a whole multiple
thereof. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption. The Trustee shall notify
Holdings promptly of the Notes or portions of Notes to be redeemed.
SECTION 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a date for
redemption of Notes, Holdings shall mail or cause to be mailed a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price, stated as a percentage of principal
amount (a "Redemption Price") and, in the case of any redemption date on or
after November 15, 2004, and the amount of accrued and unpaid interest to the
redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amount at maturity of the
particular Notes to be redeemed;
(vi) that if any Note is being redeemed in part, after the
redemption date upon surrender of such Note, a new Note or Notes in principal
amount at maturity equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(vii) that, unless Holdings defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture, Accreted Value of Notes (or portion thereof)
called for redemption shall cease to accrete and interest on Notes (or portion
thereof) called for redemption shall cease to accrete or accrue, as the case
may be, on and after the redemption date;
(viii) the CUSIP or Private Placement number, if any, printed on
the Notes being redeemed; and
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(ix) that no representation is made as to the correctness or
accuracy of the CUSIP or Private Placement number, if any, listed in such
notice or printed on the Notes.
(x) the paragraph of the Notes and the Section of the
Indenture pursuant to which the Notes are being redeemed.
(b) At Holdings' request, the Trustee shall give the notice of
redemption in Holdings' name and at Holdings' expense; provided, however, that
Holdings shall have delivered to the Trustee notice as specified in Section
3.01 of this Indenture with the information set forth in this Section 3.03. In
such event, Holdings shall provide the Trustee with the information required by
this Section 3.03.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the redemption date and at the Redemption Price stated in
the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the
Redemption Price stated in the notice, and, after November 15, 2004, plus
accrued and unpaid cash interest and Additional Amounts, if any, to the
redemption date; provided, however, that if, after November 15, 2004, the
redemption date is after a regular record date and on or prior to the interest
payment date, accrued and unpaid cash interest and Additional Amounts, if any,
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
Prior to 10:00 a.m. on the redemption date, Holdings shall deposit with
the Paying Agent (or, if Holdings or a subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
after November 15, 2004, accrued and unpaid cash interest and Additional
Amounts, if any, on all Notes to be redeemed on that date other than Notes or
portions of Notes called for redemption that have been delivered by Holdings to
the Trustee for cancellation. On and after the redemption date, Accreted Value
will cease to accrete or, after November 15, 2004, interest shall cease to
accrue, as the case may be, on Notes or portions thereof called for redemption
so long as Holdings has deposited with the Paying Agent funds sufficient to pay
the Redemption Price, and after November 15, 2004, accrued and unpaid cash
interest and Additional Amounts, if any, on, the Notes to be redeemed, unless
the Paying Agent is prohibited from making such payment pursuant to the terms
of this Indenture.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, Holdings shall
execute and the Trustee shall authenticate for the Holder (at Holdings'
expense) a new Note equal in principal amount at maturity to the unredeemed
portion of the Note surrendered.
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Notes
(a) Holdings shall promptly pay the principal of and cash interest,
Redemption Price and Additional Amounts, if any, on the Notes on the dates and
in the manner provided in the Notes and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture money sufficient to
pay all principal of and interest then due and the Trustee or the Paying Agent,
as the case may be, is not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture.
(b) Holdings shall pay interest on overdue principal of the Notes at
the rate specified therefor in the Notes and shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports.
Notwithstanding that Holdings may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, Holdings shall from
and after the consummation of any Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement filed with the Commission,
pursuant to the Registration Agreement, file with the SEC, and provide the
Trustee, Holders and prospective Holders (upon request) within 15 days after it
files them with the SEC, copies of its annual report and the information,
documents and other reports that are specified in Section 13 and 15(d) of the
Exchange Act. In addition, following a Public Equity Offering, Holdings shall
furnish to the Trustee and the Holders, promptly upon their becoming available,
copies of the annual report to shareholders and any other information provided
by Holdings to its public shareholders generally. Holdings also shall comply
with the other provisions of TIA ss. 314(a).
SECTION 4.03. Limitation on Indebtedness.
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, Incur any Indebtedness; provided, however, that Holdings or any
Restricted Subsidiary may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto, the Consolidated Coverage Ratio would be
greater than 1.6:1 if such Indebtedness is Incurred on or prior to November 15,
2002 or 1.8:1 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding Section 4.03(a), Holdings and its Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness of the Company in an aggregate principal
amount not to exceed $310.0 million less the aggregate amount of all
prepayments of principal of such Indebtedness pursuant to Section 4.06;
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(ii) Indebtedness of the Company owed to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Company or any Wholly Owned Subsidiary; provided, however, that any
subsequent issuance or transfer of any Capital Stock or any other event that
results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any subsequent transfer of any such Indebtedness (except to the
Company or a Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the issuer thereof;
(iii) Indebtedness (1) represented by Notes, the Company Notes
and the Company Note Guarantees, (2) outstanding on the Closing Date (other
than the Indebtedness described in clauses (i) and (ii) above), (3) consisting
of Refinancing Indebtedness or Company Refinancing Indebtedness Incurred in
respect of any Indebtedness described in this clause (iii) (including
Indebtedness that is Refinancing Indebtedness) or Section 4.03(a) or (4)
consisting of guarantees of any Indebtedness permitted under this Section 4.03;
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by Holdings (other than Indebtedness Incurred as consideration in, or
to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by
Holdings); provided, however, that if $10.0 million in the aggregate of
Indebtedness Incurred by Restricted Subsidiaries and/or other Persons pursuant
to this clause (iv)(1) and clause (viii)(1) of this Section 4.03(b) remains
outstanding, Indebtedness may be Incurred under this clause (iv)(1) only if, on
the date that such Restricted Subsidiary is acquired by Holdings, Holdings
would have been able to Incur $1.00 of additional Indebtedness pursuant to
Section 4.03(a) after giving effect to the Incurrence of such Indebtedness
pursuant to this clause (iv)(1) and (2) Refinancing Indebtedness Incurred by
Holdings or a Restricted Subsidiary in respect of Indebtedness Incurred
pursuant to clause (iv)(1);
(v) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by Holdings
and the Restricted Subsidiaries in the ordinary course of their business;
(vi) Indebtedness (including Capitalized Lease Obligations and
Attributable Debt) Incurred by Holdings or any Restricted Subsidiary to finance
the purchase, lease or improvement of property (real or personal) or equipment
(whether through the direct purchase of assets or Capital Stock of any Person
owning such assets that becomes a Wholly Owned Subsidiary) in an aggregate
principal amount, which when aggregated with the principal amount of all other
Indebtedness then outstanding and Incurred pursuant to this clause (vi), does
not exceed $20.0 million;
(vii) Hedging Obligations of Holdings or any Restricted
Subsidiary entered into in the ordinary course of business for the purpose of
fixing or hedging interest rate risk or currency fluctuations;
(viii) (1) Indebtedness of another Person Incurred and
outstanding on or prior to the date on which such Person consolidates with or
merges with or into Holdings or the
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Company (other than Indebtedness Incurred as consideration in, or to provide
all or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Person
consolidates with or merges with or into Holdings or the Company); provided,
however, that (a) such transaction complies with Section 5.01 and (b) if $10.0
million in the aggregate of Indebtedness Incurred by any Persons and/or
Restricted Subsidiaries pursuant to this clause (viii)(1) and clause (iv)(1) of
this Section 4.03(b) remains outstanding, Indebtedness may be Incurred under
this clause (viii)(1) only if, on the date that such transaction is
consummated, Holdings would have been able to Incur $1.00 of additional
Indebtedness pursuant to Section 4.03(a) after giving effect to the Incurrence
of such Indebtedness pursuant to this clause (viii)(1) and (2) Refinancing
Indebtedness Incurred by Holdings or the Company or the Successor Company (as
defined) in respect of Indebtedness Incurred pursuant to subclause (1) of this
clause (viii); or
(ix) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this Section
4.03(b)) in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (ix) and then
outstanding, shall not exceed $10.0 million.
(c) Notwithstanding the foregoing, Holdings shall not Incur any
Indebtedness pursuant to Sections 4.03(a) or (b), other than guarantees of Bank
Indebtedness of the Company pursuant to Section 4.03(b)(i) unless such
Indebtedness constitutes Subordinated Obligations and Holdings shall not incur
any Indebtedness if the proceeds thereof are used, directly or indirectly, to
repay, prepay, redeem, defease, retire, refund or Refinance any Subordinated
Obligations unless such Indebtedness shall be subordinated to the Notes to at
least the same extent as such Subordinated Obligations being repaid, prepaid,
redeemed, defeased, retired, refunded or refinanced. In addition, Holdings
shall not incur any Secured Indebtedness that is a Subordinated Obligation
unless, contemporaneously therewith, effective provision is made to secure the
Notes on a senior basis in right of payment to such Subordinated Obligations
for so long as such Secured Indebtedness is secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03, an
increase in the dollar amount of Indebtedness of Holdings or any Restricted
Subsidiary that comes about solely as a result of fluctuations in the exchange
rates of currencies shall not be deemed to be the Incurrence by Holdings or
such Restricted Subsidiary of additional Indebtedness.
For purposes of determining the outstanding principal amount of any
particular Indebtedness Incurred pursuant to this Section 4.03, (i)
Indebtedness Incurred pursuant to the Credit Agreement prior to or on the
Closing Date shall be treated as Incurred pursuant to Section 4.03(b)(i), (ii)
Indebtedness permitted by this Section 4.03 need not be permitted solely by
reference to one provision permitting such Indebtedness but may be permitted in
part by one such provision and in part by one or more other provisions of this
Section 4.03 permitting such Indebtedness and (iii) in the event that
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in this Section 4.03, Holdings, in its sole discretion, shall
classify such Indebtedness and only be required to include the amount of such
Indebtedness in one of such clauses.
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SECTION 4.04. Limitation on Restricted Payments.
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to (i) declare or pay any dividend, make
any distribution on or in respect of its Capital Stock or make any similar
payment (including any payment in connection with any merger or consolidation
involving the Company) to the holders of its Capital Stock except (1) dividends
or distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (2) dividends or distributions payable to Holdings or another
Restricted Subsidiary (and, if such Restricted Subsidiary has shareholders
other than Holdings or other Restricted Subsidiaries, to its other shareholders
on a pro rata basis), (ii) purchase, repurchase, redeem or otherwise acquire or
retire for value any Capital Stock of Holdings or any Restricted Subsidiary
held by Persons other than Holdings or another Restricted Subsidiary, (iii)
purchase, repurchase, redeem, defease or otherwise acquire or retire for value,
prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment any Subordinated Obligations (other than the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value of
Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within
one year of the date of acquisition or payment) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment referred to in clauses (i) through (iv) of this
Section 4.04(a) being herein referred to as a "Restricted Payment") if at the
time Holdings or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) Holdings could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors of Holdings, whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors of Holdings) declared or made subsequent to the Closing Date would
exceed the sum, without duplication, of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during which
the Closing Date occurs to the end of the most recent fiscal quarter
for which financial statements are publicly available or are otherwise
provided pursuant to the Purchase Agreement (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit); plus
(B) the aggregate Net Cash Proceeds received by Holdings
from the issue or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Closing Date (other than (x) an issuance or
sale to a Subsidiary of Holdings or (y) an issuance or sale to an
employee stock ownership plan or other trust established by
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Holdings or any of its Subsidiaries or (z) to the extent used in
accordance with Section 4.04(b)(v)(b)); plus
(C) the aggregate Net Cash Proceeds received by Holdings or
a Restricted Subsidiary from the sale or other disposition (other than
to (x) Holdings or a Subsidiary of Holdings or (y) an employee stock
ownership plan or other trust established by Holdings or any of its
Subsidiaries) of any Investments previously made by Holdings or a
Restricted Subsidiary and treated as a Restricted Payment; provided
that the amount added pursuant to this clause (C) shall not (x) exceed
the amount of such Investments previously made by Holdings or any
Restricted Subsidiary, which amount was included in the calculation of
the amount of Restricted Payments and (y) include any amounts from such
sale or disposition previously included in Section 4.04(a)(iv)(3); plus
(D) the amount by which Indebtedness of Holdings or its
Restricted Subsidiaries is reduced on Holdings' balance sheet upon the
conversion or exchange (other than by a Subsidiary of Holdings)
subsequent to the Closing Date of any Indebtedness of Holdings or its
Restricted Subsidiaries issued after the Closing Date which is
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of Holdings (less the amount of any cash or the Fair Market
Value of other property distributed by Holdings or any Restricted
Subsidiary upon such conversion or exchange); plus
(E) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of dividends,
repayments of the principal of loans or advances or other transfers of
assets to Holdings or any Restricted Subsidiary from Unrestricted
Subsidiaries or (y) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously made by
Holdings or any Restricted Subsidiary in such Unrestricted Subsidiary,
which amount was included in the calculation of the amount of
Restricted Payments; plus
(F) $5.0 million.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Capital Stock or Subordinated
Obligations of Holdings made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of Holdings (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary
of Holdings or an employee stock ownership plan or other trust established by
Holdings or any of its Subsidiaries); provided, however, that (1) such
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value will be excluded in the calculation of the amount of Restricted
Payments; and (2) the Net Cash Proceeds from such sale applied in the manner
set forth in this clause (i) will be excluded from the calculation of amounts
under Section 4.04(a)(iv)(3)(B);
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(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of Holdings
made by exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness of Holdings that is permitted to be Incurred pursuant to
Section 4.03(b); provided, however, that such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be excluded in
the calculation of the amount of Restricted Payments;
(iii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of Holdings
from Net Available Cash to the extent permitted by Section 4.06; provided,
however, that such purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value shall be excluded in the calculation of the
amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have complied with
Section 4.04(a); provided, however, that such dividends shall be included in
the calculation of the amount of Restricted Payments; and
(v) any purchase, repurchase, redemption or other acquisition or
retirement for value of shares of, or options to purchase shares of, common
stock of Holdings or any of its Subsidiaries from employees, former employees,
consultants, former consultants, directors or former directors of Holdings or
any of its Subsidiaries (or permitted transferees of such employees, former
employees, consultants, former consultants, directors or former directors),
pursuant to the terms of the agreements (including employment agreements) or
plans (or amendments thereto) approved by the Board of Directors of Holdings
under which such individuals purchase or sell, or are granted the option to
purchase or sell, such shares of common stock or such options; provided,
however, that the aggregate amount of such purchases, repurchases, redemptions
and other acquisitions or retirements for value, shall not exceed in any
calendar year the sum of (a) $5.0 million plus (b) the Net Cash Proceeds
received since the Closing Date and not previously credited to any purchase,
repurchase, redemption or other acquisition of such shares or options to
purchase shares or common stock pursuant to this Section 4.04(b)(v)(b) by
Holdings from the sale of Capital Stock to employees, consultants and directors
of Holdings or the Company; provided, further, however, that such purchase,
repurchase, redemption or other acquisition or retirement for value shall be
included in the calculation of the amount of Restricted Payments (unless made
with Net Cash Proceeds excluded pursuant to Section 4.04(a)(iv)(3)(B)(z)).
(vi) any payment of dividends from the Company to Holdings on or
prior to the Closing Date in order to consummate the Transactions (as defined
in the Purchase Agreement) provided, however, that any such dividend shall be
excluded in the calculation of the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
Holdings shall not, and shall not permit any Restricted Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the
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ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions on its Capital Stock or pay any Indebtedness or other obligations
owed to Holdings or any of its Restricted Subsidiaries, (b) make any loans or
advances to Holdings or any of its Restricted Subsidiaries or (c) transfer any
of its property or assets to Holdings or any of its Restricted Subsidiaries,
except:
(i) any encumbrance or restriction pursuant to applicable law or
an agreement in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by Holdings (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was otherwise acquired by Holdings) and outstanding on
such date;
(iii) (1) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (i) or (ii) of this Section 4.05 or this clause (iii) or
contained in any amendment to an agreement referred to in clause (i) or (ii) of
this Section 4.05 or this clause (iii) or (2) pursuant to any other agreement
regarding Indebtedness otherwise permitted by Section 4.03; provided, however,
that the encumbrances and restrictions contained in any such Refinancing
agreement, amendment or other agreement are no less favorable to the Holders
than the encumbrances and restrictions contained in such predecessor agreements
or, with respect to agreements entered into after the Closing Date referred to
in clause (2) above, the most restrictive agreement in existence at the Closing
Date;
(iv) in the case of clause (c), any encumbrance or restriction (1)
that restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license or similar contract
or (2) contained in security agreements securing Indebtedness of a Restricted
Subsidiary to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or disposition of
all or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;
(vi) any encumbrance or restriction relating to Purchase Money
Indebtedness or Capitalized Lease Obligations for property acquired in the
ordinary course of business that imposes restrictions on the ability of
Holdings or a Restricted Subsidiary to sell, lease or transfer the acquired
property to Holdings or its Restricted Subsidiaries;
(vii) restrictions on cash or other deposits imposed by customers
under contracts entered into in the ordinary course of business; and
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(viii) any encumbrance or restriction contained in joint venture
agreements and other similar agreements entered into in the ordinary course of
business and customary for such types of agreements.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition unless (i) Holdings or such
Restricted Subsidiary receives consideration (including by way of relief from,
or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal
to the Fair Market Value of the shares and assets subject to such Asset
Disposition, (ii) at least 75% of the consideration therefor received by
Holdings or such Restricted Subsidiary is in the form of cash; provided that
the following shall be deemed to be cash for purposes of this clause (ii) (but
not for purposes of the definition of Net Available Cash): (1) the amount of
any liabilities (as shown on the Holdings' or such Restricted Subsidiary's most
recent balance sheet or in the notes thereto) of Holdings or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets, (2) the amount of
any securities received by Holdings or such Restricted Subsidiary from such
transferee that are converted or scheduled to be converted by Holdings or such
Restricted Subsidiary into cash (to the extent of the cash received or
scheduled to be received) within 90 days following the closing of such Asset
Disposition, (3) the Fair Market Value of any Related Assets received by
Holdings or any Restricted Subsidiary in such Asset Disposition and (4) any
Designated Noncash Consideration received by Holdings or such Restricted
Subsidiary in such Asset Disposition having an aggregate Fair Market Value,
taken together with all other Designated Noncash Consideration received
pursuant to this clause (4) that has not been converted into cash or cash
equivalents, not to exceed 10% of Consolidated Net Tangible Assets as of the
end of the most recent fiscal quarter for which financial statements are
publicly available or are otherwise provided pursuant to the Purchase Agreement
at the time such Designated Noncash Consideration is received (with the Fair
Market Value of each item of Designated Noncash Consideration being measured at
the time received and without giving effect to subsequent changes in value);
and (iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by Holdings (or such Restricted Subsidiary, as the case
may be) (1) first, to the extent Holdings elects (or is required by the terms
of any Indebtedness), to prepay, repay, redeem, purchase, repurchase, defease
or otherwise acquire or retire for value Indebtedness (other than obligations
in respect of any Preferred Stock) of a Wholly Owned Subsidiary (in each case,
other than Indebtedness owed to Holdings or an Affiliate of Holdings and other
than obligations in respect of any Disqualified Stock) within 360 days of the
later of the date of such Asset Disposition or the receipt of such Net
Available Cash; (2) second, to the extent of the balance of Net Available Cash
after application in accordance with clause (1) of this Section 4.06(a)(iii),
to the extent Holdings or such Restricted Subsidiary elects to, or enters into
a binding agreement to, reinvest in Additional Assets (including by means of an
Investment in Additional Assets by a Restricted Subsidiary with cash in an
amount equal to the amount of Net Available Cash received by, or to be received
by, Holdings or another Restricted Subsidiary) within 360 days of the later of
such Asset Disposition or the receipt of such Net Available Cash; and (3)
third, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (1) and (2) of this Section
4.06(a)(iii), to make an Offer to purchase Notes pursuant to and subject to
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the conditions set forth in Section 4.06(b); provided, however that, in
connection with any prepayment, repayment, purchase, repurchase, defeasance or
other acquisition or retirement for value of Indebtedness pursuant to clauses
(1) or (3) of this Section 4.06(a)(iii), Holdings or such Restricted Subsidiary
shall retire such Indebtedness and shall cause the related loan commitment (if
any) to be permanently reduced in an amount equal to the principal amount so
prepaid, repaid, purchased, repurchased, defeased or otherwise acquired or
retired for value.
Upon completion of any Offer, the amount of Net Available Cash shall be
reset at zero and Holdings shall be entitled to use any remaining proceeds for
any corporate purposes to the extent permitted under this Indenture.
Notwithstanding the foregoing provisions of this Section 4.06, Holdings
and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.06 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions that is not
applied in accordance with this Section 4.06 exceeds $10.0 million.
(b) In the event of an Asset Disposition that requires the purchase
of Notes pursuant to Section 4.06(a)(iii)(3), Holdings shall be required to
offer to purchase Notes tendered pursuant to an offer by Holdings for the Notes
(an "Offer") at a purchase price of 100% of their Accreted Value (or, if after
November 15, 2004, plus accrued and unpaid interest thereon) and Additional
Amounts in respect thereof, if any, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date) in accordance with the procedures
(including prorating in the event of oversubscription) set forth in Section
4.06(c). Holdings shall not be required to make an Offer for Notes pursuant to
this Section 4.06 if the Net Available Cash available therefor (after
application of the proceeds as provided in Sections 4.06(a)(iii)(1) and
4.06(a)(iii)(2) is less than $10.0 million for any particular Asset Disposition
(which lesser amount shall be carried forward for purposes of determining
whether an Offer is required with respect to the Net Available Cash from any
subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after Holdings
becomes obligated to make an Offer, Holdings shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Notes purchased by Holdings
either in whole or in part (subject to prorating as hereinafter described in
the event the Offer is oversubscribed) in integral multiples of $1,000 of
principal amount at maturity, at the applicable purchase price. The notice
shall specify a purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date") and shall contain such
information concerning the business of Holdings which Holdings in good faith
believes will enable such Holders to make an informed decision (which at a
minimum shall include (1) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of Holdings, the most
recent subsequently filed Quarterly Report on Form 10-Q and any Current Report
on Form 8-K of Holdings filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Dispositions otherwise described in the
offering materials (or corresponding successor reports), in each case, if any,
(2) a description of material developments in Holdings' business subsequent to
the date of the latest of such reports, and (3) if material, appropriate pro
forma financial information) and all instructions and materials
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necessary to tender Notes pursuant to the Offer, together with the address
referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer
is delivered to the Trustee as provided above, Holdings shall deliver to the
Trustee an Officers' Certificate as to (1) the amount of the Offer (the "Offer
Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date,
Holdings shall also irrevocably deposit with the Trustee or with a paying agent
(or, if Holdings is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested pursuant to the
specific written directions of Holdings in Temporary Cash Investments and to be
held for payment in accordance with the provisions of this Section 4.06. Upon
the expiration of the period for which the Offer remains open (the "Offer
Period"), Holdings shall deliver to the Trustee for cancellation the Notes or
portions thereof that have been properly tendered to and are to be accepted by
Holdings. The Trustee (or the Paying Agent, if not the Trustee) shall, on the
date of purchase, mail or deliver payment to each tendering Holder in the
amount of the purchase price. In the event that the Offer Amount delivered by
Holdings to the Trustee is greater than the purchase price of the Notes
tendered, the Trustee shall deliver the excess to Holdings immediately after
the expiration of the Offer Period for application in accordance with this
Section 4.06.
(iii) Holders electing to have a Note purchased shall be required
to surrender the Note, with an appropriate form duly completed, to Holdings at
the address specified in the notice at least three Business Days prior to the
Purchase Date. Holders shall be entitled to withdraw their election if the
Trustee or Holdings receives not later than one Business Day prior to the
Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount at maturity of the Note
which was delivered by the Holder for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased. If at the expiration
of the Offer Period the aggregate principal of the Notes plus accrued and
unpaid interest thereon and any Additional Amounts in respect thereof, if any,
exceeds the Offer Amount, Holdings shall select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by Holdings
so that only Notes in denominations of $1,000 (principal at maturity), or
integral multiples thereof are purchased). Holders whose Notes are purchased
only in part shall be issued new Notes equal in principal amount at maturity to
the unpurchased portion of the Notes surrendered.
(iv) At the time Holdings delivers Notes to the Trustee which are
to be accepted for purchase, Holdings shall also deliver an Officers'
Certificate stating that such Notes are to be accepted by Holdings pursuant to
and in accordance with the terms of this Section 4.06. A Note shall be deemed
to have been accepted for purchase at the time the Trustee, directly or through
an agent, mails or delivers payment therefor to the surrendering Holder.
(v) Holdings shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.06. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.06, Holdings shall
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comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.06 by virtue
thereof.
SECTION 4.07. Limitation on Transactions with Affiliates.
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into or conduct any transaction or
series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of Holdings
(an "Affiliate Transaction") unless such Affiliate Transaction is on terms (i)
that are no less favorable to Holdings or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction
in arm's-length dealings with a Person who is not such an Affiliate, (ii) that,
in the event that such Affiliate Transaction involves an aggregate amount in
excess of $10.0 million, (1) are set forth in writing and (2) have been
approved by a majority of the members of the Board of Directors of Holdings
having no personal stake, other than as a holder of Capital Stock of Holdings
or such Restricted Subsidiary, in such Affiliate Transaction and (iii) that, in
the event that such Affiliate Transaction involves an amount in excess of $25.0
million or does not comply with Section 4.07(a)(ii), have been determined by a
nationally recognized appraisal, accounting or investment banking firm to be
fair, from a financial standpoint, to Holdings and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors of
Holdings or the Company, (iii) the grant of stock options or similar rights to
employees, consultants and directors of Holdings or any of its Subsidiaries
pursuant to plans approved by the Board of Directors of Holdings or the
Company, (iv) (A) extensions and Refinancings of loans or advances existing on
the Closing Date that were made to employees, consultants or directors and (B)
loans or advances to employees, consultants or directors in the ordinary course
of business in accordance with past practices of Holdings, but in any event in
the case of this clause (B) not to exceed $10.0 million in the aggregate
outstanding at any one time, (v) the payment of reasonable fees to directors of
Holdings, the Company and the Subsidiaries of the Company who are not employees
of Holdings, the Company or such Subsidiaries, (vi) any transaction between
Holdings and a Restricted Subsidiary or between Restricted Subsidiaries; (vii)
customary indemnification and insurance arrangements in favor of officers,
directors, employees and consultants of Holdings or any of the Restricted
Subsidiaries; (viii) the purchase and sale of inventory in the ordinary course
of business on an arm's-length basis consistent with customary market pricing;
(ix) marketing and/or distribution arrangements on arm's-length terms; (x)
payments by Holdings or any of its Restricted Subsidiaries to Fox Paine and its
Affiliates for any financial advisory, management, financing, underwriting or
other placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures
which payments are approved by a majority of the members of the Board of
Directors of the Company referred to in Section 4.07(a)(ii)(2) in good faith;
(xi) the existence of, or the performance by Holdings or any Restricted
Subsidiary of the obligations under the terms of, any stockholders' agreements
(including any registration rights agreement or purchase agreement related
thereto) to which any of them is a party as of the Closing Date, as
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such agreements may be amended from time to time pursuant to the terms thereof;
provided, however, that the terms of any such amendment are no less favorable
to the Holders than the terms of any such agreements in effect as of the
Closing Date; (xii) the issuance of Capital Stock (other than Disqualified
Stock) of Holdings for cash to any Permitted Holder; (xiii) any transaction
between Circon and the Company or a Restricted Subsidiary in respect of the
Circon Note in connection with the Transactions; and (xiv) the performance of
the Services Agreement as in effect on the Closing Date (or any addition or
deletion of services thereunder on substantially similar terms) or any other
amendment or modification thereto or replacement thereof so long as any such
other amendment, modification or replacement agreement is not materially more
disadvantageous to the Holders than the original agreement as in effect on the
Closing Date.
SECTION 4.08. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that Holdings repurchase all or any part of such
Holder's Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest thereon and, in each case,
Additional Amounts in respect thereof, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on the relevant interest
payment date), in accordance with the terms contemplated in Section 4.08(b);
provided, however, that notwithstanding the occurrence of a Change of Control,
Holdings shall not be obligated to repurchase the Notes pursuant to this
Section 4.08 in the event that it has exercised its right to redeem all the
Notes pursuant to Section 4.08(e) or paragraph 5 of the Notes.
In the event that at the time of such Change of Control the terms of
the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to
this Section 4.08, then prior to the mailing of the notice to Holders provided
for in Section 4.08(b) below, but in any event within 30 days following any
Change of Control, Holdings shall (i) repay in full all Bank Indebtedness or,
if doing so will allow the repurchase of Notes, offer to repay in full all Bank
Indebtedness and repay the Bank Indebtedness of each lender who has accepted
such offer or (ii) obtain the requisite consent under the agreements governing
the Bank Indebtedness to permit the repurchase of the Notes as provided for in
Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), Holdings
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require Holdings to purchase all or a portion of such Holder's
Notes at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Additional Amounts, in respect
thereof, if any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
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(iii) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by Holdings, consistent with this
Section 4.08, that a Holder must follow in order to have its Notes purchased.
(c) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to Holdings at the
address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or Holdings receives not later than one Business Day prior to the
purchase date a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount at maturity of the Note which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Note purchased. Holders whose Notes are
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered.
(d) On the purchase date, all Notes purchased by Holdings under this
Section 4.08 shall be delivered to the Trustee for cancellation, and Holdings
shall pay the purchase price plus accrued and unpaid interest, if any, to the
Holders entitled thereto (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date).
(e) In the event that Holders of not less than 98% of the principal
amount at maturity of the outstanding Notes accept a Change of Control Offer
and Holdings purchases all of the Notes held by such Holders, Holdings shall
have the right, on not less than 30 nor more than 60 days' prior notice, given
not more than 30 days following the purchase pursuant to the Change of Control
Offer, to redeem all the Notes that remain outstanding following such purchase
at the purchase price specified in the Change of Control Offer plus, to the
extent not included in the purchase price specified in the Change of Control
Offer, accrued and unpaid interest thereon and Additional Amounts in respect
thereof, if any, to the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest on the relevant interest
payment date).
(f) Notwithstanding the foregoing provisions of this Section 4.08,
Holdings will not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in
Section 4.08(b) applicable to a Change of Control Offer made by Holdings and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(g) At the time Holdings delivers Notes to the Trustee which are to
be accepted for purchase, Holdings shall also deliver an Officers' Certificate
stating that such Notes are to be accepted by Holdings pursuant to and in
accordance with the terms of this Section 4.08. A Note shall be deemed to have
been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.
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(h) Prior to any Change of Control Offer, Holdings shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of Holdings to make such offer have been complied
with.
(i) Holdings shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.08. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.08, Holdings shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.08 by virtue
thereof.
(j) Holdings shall, no later than ten Business Days prior to the
termination of a Change of Control Offer, mail a notice to each Holder with a
copy to the Trustee stating whether Holdings will redeem the Notes as a result
of the Change of Control.
SECTION 4.09. Compliance Certificate.
Holdings shall deliver to the Trustee within 120 days after the end of
each fiscal year of Holdings an Officers' Certificate stating that in the
course of the performance by the signers of their duties as Officers of
Holdings they would normally have knowledge of any Default and whether or not
the signers know of any Default that occurred during such period. If they do,
the certificate shall describe the Default, its status and what action Holdings
is taking or proposes to take with respect thereto. Holdings also shall comply
with Section 314(a)(4) of the TIA.
SECTION 4.10. Further Instruments and Acts.
Upon request of the Trustee, Holdings shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 4.11. Limitation on Lines of Business.
Holdings shall not, and shall not permit any Restricted Subsidiary to,
engage in any business, other than a Permitted Business. Holdings shall not
engage in any activity or business other than the ownership of the Capital
Stock of the Company which shall at all times remain a Wholly Owned Subsidiary
of Holdings.
SECTION 4.12. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
Holdings shall not sell or otherwise dispose of any shares of Capital
Stock of the Company unless the Notes concurrently with the consummation of
such transaction are being redeemed in compliance with provisions of this
Indenture. Holdings shall not permit the Company to sell or otherwise dispose
of any shares of Capital Stock of any other Restricted Subsidiary, and shall
not permit any other Restricted Subsidiary, directly or indirectly, to issue or
sell or otherwise dispose of any shares of its Capital Stock except: (a) to the
Company or a Wholly Owned Subsidiary; (b) if, immediately after giving effect
to such issuance, sale or other
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disposition, neither the Company nor any of its Subsidiaries owns any Capital
Stock of such Restricted Subsidiary or (c) if, immediately after giving effect
to such issuance or sale, such Restricted Subsidiary would no longer constitute
a Restricted Subsidiary and any Investment in such Person remaining after
giving effect thereto would have been permitted to be made under Section 4.04
if made on the date of such issuance, sale or other disposition. The cash
proceeds of any sale of such Capital Stock permitted hereby shall be treated as
cash proceeds from an Asset Disposition and shall be applied in accordance with
Section 4.06.
SECTION 4.13. Calculation of Original Issue Discount.
Holdings shall file with the Trustee promptly at the end of each
calendar year through December 31, 2004 (i) a written notice specifying the
amount of original issue discount (including daily rates and accrual periods)
accrued on outstanding Notes as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
required under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5
Successor Company
SECTION 5.01. When Holdings May Merge or Transfer Assets.
Holdings shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and the
Successor Company (if not Holdings) shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of Holdings under the Notes and this
Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or any
Restricted Subsidiary as a result of such transaction as having been Incurred
by the Successor Company or such Restricted Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of Indebtedness
pursuant to Section 4.03(a);
(iv) Holdings shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture; and
(v) Holdings shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of such transaction 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 transaction had not
occurred.
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The Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, Holdings under this Indenture, but Holdings
in the case of a conveyance, transfer or lease of all or substantially all its
assets shall not be released from the obligation to pay the principal of and
interest on the Notes.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(a) Holdings defaults in any payment of interest on, or Additional
Amounts in respect of, any Note when the same becomes due and payable and such
default continues for a period of 30 days;
(b) Holdings (i) defaults in the payment of the principal of any
Note when the same becomes due and payable at its Stated Maturity, upon
required redemption or repurchase, upon declaration or otherwise or (ii) fails
to redeem or purchase Notes when required pursuant to this Indenture or the
Notes;
(c) Holdings fails to comply with Section 5.01;
(d) Holdings fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.11 or 4.12 (other than a failure to purchase Notes when
required under Section 4.06 or 4.08) and such failure continues for 30 days
after the notice to Holdings and the Trustee specified below;
(e) Holdings fails to comply with any of its agreements in the Notes
or this Indenture (other than those referred to in (a), (b), (c) or (d) above)
and such failure continues for 60 days after the notice to Holdings and the
Trustee specified below;
(f) (i) An event of default after expiration of any applicable grace
period shall occur with respect to Indebtedness of Holdings for borrowed money
(other than Indebtedness for borrowed money owing to a Subsidiary of Holdings)
or (ii) Indebtedness of any Subsidiary of Holdings (other than Indebtedness
owing to Holdings or a Subsidiary of Holdings) is not paid within any
applicable grace period after final maturity of all Indebtedness issued under
the same facility or the acceleration of any such Indebtedness by the holders
thereof because of a default if the total amount of such Indebtedness referred
to in clauses (i) or (ii) exceeds $5.0 million or its foreign currency
equivalent at the time and such failure continues for 10 days after the notice
to Holdings and the Trustee specified below;
(g) Holdings or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case;
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(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against Holdings or any Significant Subsidiary
in an involuntary case;
(ii) appoints a Custodian of Holdings or any Significant
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of Holdings or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days; or
(i) any judgment or decree for the payment of money in excess of $5.0
million or its foreign currency equivalent is rendered against Holdings or any
Restricted Subsidiary, to the extent such judgment or decree is not covered by
insurance or is in excess of insurance coverage, if there is a period of 60
days following the entry of such judgment or decree during which such judgment
or decree is not discharged, waived or the execution thereof stayed.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (d), (e) or (f) above is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount at
maturity of the outstanding Notes notify Holdings and the Trustee of the
Default and Holdings does not cure such Default within the time specified after
receipt of such notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default".
Under clause (d), (e), (f) or (i) above, Holdings shall deliver to the
Trustee, within 30 days after the occurrence thereof, written notice in the
form of an Officers' Certificate of any event which with the giving of notice
or the lapse of time would become an Event of Default, its status and what
action Holdings is taking or proposes to take with respect thereto.
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SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(g) or (h) with respect to Holdings) occurs and is continuing, the
Holders of at least 25% aggregate in principal amount at maturity of the
outstanding Notes by notice to Holdings and the Trustee, may declare the
principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest will be due and
payable immediately. If an Event of Default specified in Section 6.01(g) or (h)
with respect to Holdings occurs, principal of and interest on all the Notes
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. The Holders
of a majority in aggregate principal amount at maturity of the outstanding
Notes by notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal of or interest on Notes that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies.
Notwithstanding any other provision of this Indenture, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of or interest on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding in its own name and as trustee of
an express trust 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 in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount at maturity of the Notes
by notice to the Trustee may waive an existing Default and its consequences
except (a) a Default in the payment of principal of or interest on a Note, (b)
a Default arising from the failure to redeem or purchase any Note when required
pursuant to the terms of this Indenture or (c) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Holder affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount at maturity of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or, subject to Section
7.01,
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that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06. Limitation on Suits.
(a) Except to enforce the right to receive payment of principal of
or interest on the Notes when due, no Holder may pursue any remedy with respect
to this Indenture or the Notes unless:
(i) the Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount at
maturity of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in principal amount at maturity of
the outstanding Notes do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and Additional Amounts and interest
on the Notes held by such Holder, on or after the respective due dates
expressed or provided for in the Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against Holdings or any other obligor on the Notes for the
whole amount then due and owing (together with interest on overdue principal
and (to the extent lawful) on any unpaid interest at the rate provided for in
the Notes) and the amounts provided for in Section 7.07.
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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 and
the Holders allowed in any judicial proceedings relative to Holdings or any
Subsidiary, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
6, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, and any Additional Amounts without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, any Additional Amounts and interest, respectively; and
THIRD: to Holdings.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10. At least 15 days before such record
date, the Trustee shall mail to each Holder and Holdings a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount at maturity of the Notes.
SECTION 6.12. Waiver of Stay or Extension Laws.
Holdings (to the extent it may lawfully do so) agrees that it shall not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and Holdings (to the extent that it may lawfully
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do so) hereby expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture 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 liability 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 Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; 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.
(iv) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Sections 7.01(a), 7.01(b) and 7.01(c).
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(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with Holdings.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the
TIA.
(h) The Trustee is under no duty to make any filings, including UCC
and applicable tax filings (unless requested by written instruction and
provided in execution form) and no obligation as to the perfection or priority
of any security interest.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on 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. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) At the expense of Holdings, Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent
appointed in good faith.
(d) The Trustee shall not be liable for any action it takes or omits
to take (i) in good faith which it believes to be authorized or within its
rights or powers and (ii) in the event that it requests instructions when
unable to decide between alternative courses of action or ambiguous provisions,
and when no instruction is received, the Trustee may, but is not obligated to
take any such action; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) At the expense of Holdings, Trustee may consult with counsel,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document or as to whether or not an Event of
Default shall have occurred unless requested in writing to do so by the Holders
of not less than a majority in principal amount at maturity of the Notes at the
time outstanding, but the Trustee, in its discretion, may make such further
inquiry or
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investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of Holdings, personally or
by agent or attorney.
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 Holdings or its
Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity, sufficiency or adequacy of this Indenture or the Notes, it
shall not be accountable for Holdings' use of the proceeds from the Notes, and
it shall not be responsible for any statement (other than as to itself) in this
Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Trustee's certificate of authentication. The
Trustee shall not be responsible for any conduct or omission by Holdings or the
occurrence of any Event of Default.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if the Trustee has actual
knowledge of it, the Trustee shall mail to each Holder notice of the Default
within the earlier of 90 days after it occurs or 30 days after it is actually
known to a trust officer or written notice of it is received by the Trustee.
SECTION 7.06. Reports by Trustee to Holders.
As promptly as practicable after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to each Holder a
brief report dated as of May 15 that complies with Section 313(a) of the TIA.
The Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed by or on behalf of Holdings with the SEC and each stock exchange (if any)
on which the Notes are listed. Holdings agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity.
Holdings shall pay to the Trustee from time to time compensation for
its services as agreed to in a separate fee agreement between Holdings and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. Holdings shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. Holdings shall indemnify the Trustee (including in its individual
capacity) against any and all loss, liability, cost, claims or
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expense (including reasonable attorneys' fees) incurred by or in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify Holdings of any claim for which it may seek
indemnity promptly upon obtaining actual knowledge thereof; provided, however,
that any failure so to notify Holdings shall not relieve Holdings of its
indemnity obligations hereunder. Holdings shall defend the claim and the
indemnified party shall provide reasonable cooperation at Holdings' expense in
the defense. Such indemnified parties may have separate counsel and Holdings
shall pay the fees and expenses of such counsel; provided, however, that
Holdings shall not be required to pay such fees and expenses if it assumes such
indemnified parties' defense and, in such indemnified parties' reasonable
judgment, there is no conflict of interest between Holdings and such parties in
connection with such defense. Holdings need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure Holdings' payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and any Additional Amounts, if any, on particular
Notes.
Holdings' obligations pursuant to this Section 7.07 shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(g) or (h) with respect to Holdings, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying Holdings in
writing in accordance with the provisions of Section 13.02. Any resignation of
the Trustee shall be effective immediately upon receipt by Holdings of such
notice (unless such notice shall specify a later time as the effective time of
such resignation, in which case such later time shall be the effective time),
and the resignation of the Trustee shall not prejudice any rights of the
Trustee to receive any compensation, any reimbursement of any expenses or any
indemnity or right to being defended and held harmless under this Indenture.
The Holders of a majority in principal amount at maturity of the Notes may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. Holdings shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
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(b) If the Trustee resigns, is removed by Holdings or by the Holders
of a majority in principal amount at maturity of the Notes and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), Holdings shall promptly appoint a successor
Trustee. Trustee shall be deemed to have discharged its duties to the extent
that a successor Trustee has agreed to perform such duties. The Trustee is not
responsible for monitoring the performance of such successor Trustee or for the
failure of such successor Trustee in performing their duties.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to Holdings. 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. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount at maturity of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in TIA ss. 310(b), any Holder
who has been a bona fide Holder of a Note for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, Holdings' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to the Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Notes or in this Indenture provided that the certificate of the Trustee
shall have.
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SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA ss.
310(a). The Trustee shall have a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b), subject to its right
to apply for a stay of its duty to resign under the penultimate paragraph of
TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
Holdings are outstanding if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Holdings.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) When (i) all outstanding Notes (other than Notes replaced or
paid pursuant to Section 2.07) have been cancelled or delivered to the Trustee
for cancellation or (ii) all outstanding Notes have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof, and Holdings irrevocably deposits with the
Trustee funds in an amount sufficient, or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination thereof
sufficient, in the written opinion of a nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited) to pay
the principal of and interest on the outstanding Notes when due at maturity or
upon redemption of all outstanding Notes, including interest thereon to
maturity or such redemption date (other than Notes replaced or paid pursuant to
Section 2.07), and Additional Amounts, if any, and if in either case Holdings
pays all other sums payable hereunder by Holdings, then this Indenture shall,
subject to Section 8.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of Holdings
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of Holdings.
(b) Subject to Sections 8.01(c) and 8.02, Holdings at any time may
terminate (i) all of its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12 and 4.13 and the operation of Section
5.01(a)(iii), 6.01(d), 6.01(f), 6.01(g) (with respect to Significant
Subsidiaries only), 6.01(h) (with respect to Significant Subsidiaries only) and
6.01(i) ("covenant defeasance option"). Holdings may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
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If Holdings exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If Holdings exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.01(d), 6.01(f), 6.01(g)
(with respect to Significant Subsidiaries only), 6.01(h) (with respect to
Significant Subsidiaries only) or 6.01(i) or because of the failure of Holdings
to comply with Section 5.01(a)(iii).
Upon satisfaction of the conditions set forth herein and upon request
of Holdings, the Trustee shall acknowledge in writing the discharge of those
obligations that Holdings terminates.
(c) Notwithstanding clauses (a) and (b) above, Holdings' obligations
in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07, 7.08 and in this Article
8 shall survive until the Notes have been paid in full. Thereafter, Holdings'
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance.
(a) Holdings may exercise its legal defeasance option or its covenant
defeasance option only if:
(i) Holdings irrevocably deposits in trust with the Trustee money
in an amount sufficient or U.S. Government Obligations the principal of and
interest on which will be sufficient, or a combination thereof sufficient, to
pay the principal of and interest on the Notes when due at maturity or
redemption, as the case may be, including interest thereon to maturity or such
redemption date and Additional Amounts, if any;
(ii) Holdings delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the Notes to maturity
or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(g) or (h) with respect to
Holdings occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on Holdings;
(v) Holdings delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act
of 1940;
(vi) in the case of the legal defeasance option, Holdings shall
have delivered to the Trustee an Opinion of Counsel stating that (1) Holdings
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (2) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
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based thereon such Opinion of Counsel shall confirm that, the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of
such 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
defeasance had not occurred;
(vii) in the case of the covenant defeasance option, Holdings shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(viii) Holdings delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article 8 have
been complied with.
(b) Before or after a deposit, Holdings may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Notes.
SECTION 8.04. Repayment to Holdings.
The Trustee and the Paying Agent shall promptly turn over to Holdings
upon request any money or U.S. Government Obligations held by it as provided in
this Article which, in the written opinion of a nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited), are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to Holdings upon written request any money held by them
for the payment of principal or interest on the Notes that remains unclaimed
for two years, and, thereafter, Holders entitled to the money must look to
Holdings for payment as general creditors, and the Trustee and the Paying Agent
shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations.
Holdings shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
Holdings' obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if Holdings has made any payment of interest on, or principal of
any Notes because of the reinstatement of its obligations, Holdings shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders.
Holdings and the Trustee may amend this Indenture or the Notes without
notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code or in
a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(iv) to provide for the issuance of the PIK Notes and exchange
notes for such PIK Notes;
(v) to secure the Notes;
(vi) to add to the covenants of Holdings for the benefit of the
Holders or to surrender any right or power herein conferred upon Holdings;
(vii) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
(viii) to make any change that does not adversely affect the rights
of any Holder;
(ix) to provide for the issuance of the Exchange Notes, which
shall have terms substantially identical in all material respects to the
Initial Notes (except that the transfer restrictions contained in the Initial
Notes shall be modified or eliminated, as appropriate), and
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which shall be treated, together with any outstanding Initial Notes, and any
PIK Notes issued on the Initial Notes or the Exchange Notes, as a single issue
of securities; or
(x) to change the name or title of the Initial Notes, the PIK
Notes or the Exchange Notes and make any conforming changes related thereto.
After an amendment under this Section 9.01 becomes effective, Holdings
shall mail to Holders a notice briefly describing such amendment. The failure
to give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders.
(a) Holdings and the Trustee may amend this Indenture or the Notes
without notice to any Holder but with the written consent of the Holders of at
least a majority in aggregate principal amount at maturity of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes). However, without the consent of each Holder affected,
an amendment may not:
(i) reduce the aggregate principal amount at maturity of Notes
whose Holders must consent to an amendment;
(ii) reduce the rate of or extend the time for payment of interest
or any Additional Amounts on any Note;
(iii) reduce the principal amount at maturity of or extend the
Stated Maturity of any Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with Article 3;
(v) make any Note payable in money other than that stated in the
Note;
(vi) impair the right of any holder to receive payment of
principal of, and interest or any Additional Amounts on, such Holder's Notes on
or after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes; or
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, Holdings
shall mail to Holders a notice briefly describing such amendment. The failure
to give such notice to all
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Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Notes shall comply with the
TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Note
shall bind the Holder and every subsequent Holder of that Note or portion of
the Note that evidences the same debt as the consenting Holder's Note, even if
notation of the consent or waiver is not made on the Note. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Note or portion of the Note if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate from Holdings certifying that the requisite number of consents have
been received. After an amendment or waiver becomes effective, it shall bind
every Holder. An amendment or waiver becomes effective upon the (i) receipt by
Holdings or the Trustee of the requisite number of consents, (ii) satisfaction
of conditions to effectiveness as set forth in this Indenture and any indenture
supplemental hereto containing such amendment or waiver and (iii) execution of
such amendment or waiver (or supplemental indenture) by Holdings and the
Trustee.
(b) Holdings may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment changes the terms of a Note, the Trustee may require
the Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if Holdings or the Trustee so determines, Holdings
in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. Failure to make the appropriate notation
or to issue a new Note shall not affect the validity of such amendment.
SECTION 9.06. Trustee to Sign Amendments.
The Trustee shall sign any amendment authorized pursuant to this
Article 9 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to Section
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7.01) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture and that such amendment is the legal, valid and binding
obligation of Holdings enforceable against it in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
ARTICLE 10
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of TIA
ss.ss. 310 to 318, inclusive, such imposed duties or incorporated provision
shall control.
SECTION 10.02. Notices.
Any notice or communication shall be in writing and delivered in person
or mailed by first-class mail addressed as follows:
if to Holdings:
Maxxim Medical, Inc.
10300 49th Street North
Clearwater, Florida 33762
Attention of: Corporate Secretary
Telecopier: 727-561-2180
if to the Trustee:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention of: Corporate Trust Administration
Telecopier: 302-651-8882
Holdings or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed first
class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. Holdings, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by Holdings to the Trustee to take or
refrain from taking any action under this Indenture, Holdings shall furnish to
the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each Officers' Certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 4.09) shall include:
(a) a statement that the individual 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 individual, 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
complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.06. When Notes Disregarded.
In determining whether the Holders of the required principal amount at
maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by Holdings or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with Holdings shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or
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consent, only Notes which the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time shall
be considered in any such determination.
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 10.08. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required by law or regulation to be open in the State of
New York or Wilmington, Delaware. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 10.09. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.10. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of Holdings
shall not have any liability for any obligations of Holdings under the Notes or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
SECTION 10.11. Successors.
All agreements of Holdings in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 10.12. Multiple Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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SECTION 10.13. Table of Contents; Headings.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
MAXXIM MEDICAL, INC., a Texas corporation
By: /s/ Kenneth W. Davidson
-------------------------------------------
Name: Kenneth W. Davidson
Title: Chairman, President, Chief Executive
Officer
Accepted:
WILMINGTON TRUST COMPANY, AS TRUSTEE
By: /s/ James J. McGinley
------------------------
Name: James J. McGinley
Title: Authorized Signer
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APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES
AND EXCHANGE NOTES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall
have the meanings indicated below:
"Definitive Note" means a certificated Initial Note, PIK Note or
Exchange Note (bearing the Restricted Notes Legend if the transfer of such Note
is restricted by applicable law) that does not include the Global Notes Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Global Notes Legend" means the legend set forth under that
caption in Exhibit B to this Indenture.
"IAI" means an institutional "accredited investor" as described
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Notes Custodian," who shall initially be the Trustee, means the
custodian with respect to a Global Exchange Note (as appointed by the
Depositary) or any successor person thereto.
"Notes" under the Indenture include the Initial Notes and any
Exchange Notes issued in exchange for Initial Notes and, in each case, any PIK
Notes issued thereon.
"Purchase Agreement" means the Purchase Agreement dated November
12, 1999, among Holdings and the Purchasers.
"Purchasers" means GS Mezzanine Partners, L.P. and GS Mezzanine
Partners Offshore, L.P.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by Holdings,
pursuant to the Registration Agreement, to certain Holders of Notes, to issue
and deliver to such Holders, in exchange for their Notes, a like aggregate
principal amount at maturity of Exchange Notes registered under the Securities
Act.
"Registration Agreement" means the Exchange and Registration
Rights Agreement dated November 12, 1999, among Holdings and the Purchasers.
"Regulation S" means Regulation S under the Securities Act.
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"Restricted Notes Legend" means the legend set forth in
paragraph 2.3(d)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a registration statement
filed by Holdings in connection with the offer and sale of Initial Notes
pursuant to the Registration Agreement.
"Transfer Restricted Notes" means Definitive Notes and any other
Notes that bear or are required to bear the Restricted Notes Legend.
"Trigger Date" as defined in the Registration Agreement.
1.2 Other Definitions
Term: Defined in Section:
----- -------------------
"Agent Members" 2.1(c)
"Initial Definitive Notes" 2.1(b)
"Global Exchange Note" 2.1(b)
2. The Notes
2.1 Form and Dating
(a) The Initial Notes issued on the date hereof will be sold
by Holdings pursuant to the Purchase Agreement to the Purchasers. Such Initial
Notes may thereafter be transferred to, among others, QIBs, purchasers in
reliance on Regulation S and, except as set forth below, IAIs in accordance
with Rule 501.
(b) The Initial Notes and any PIK Notes issued thereon shall
be issued in the form of Definitive Notes, in fully registered form (the
"Initial Definitive Notes") bearing the Restricted Notes Legend and shall be
issued to and registered in the name of the applicable Purchaser and duly
executed by Holdings and authenticated by the Trustee as provided in this
Indenture.
Initial Notes and any PIK Notes issued thereon will be exchanged for
Exchange Notes in the Registered Exchange Offer pursuant to the Registration
Agreement. Exchange Notes will also be issued upon the sale of Initial Notes
and any PIK Notes issued thereon (i) under a Shelf Registration Statement or
(ii) at any time that the Initial Notes being sold are not Transfer Restricted
Notes. Exchange Notes and any PIK Notes issued thereon shall, except as
provided in Sections 2.3 and 2.4, be issued in global form bearing the Global
Notes Legend (the "Global Exchange Notes"). The aggregate principal amount at
maturity of the Global Exchange Notes
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may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee and on the schedules
thereto as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to a Global Exchange Note deposited with or on behalf of the Depositary.
Holdings shall execute and the Trustee shall, in accordance with this
Section 2.1(c) and Section 2.2 and pursuant to an order of Holdings signed by
one Officer, authenticate and deliver one Global Exchange Note that (i) shall
be registered in the name of the Depositary for such Global Exchange Note or
the nominee of such Depositary and (ii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions or held by the
Trustee as Notes Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Exchange Note
held on their behalf by the Depositary or by the Trustee as Notes Custodian or
under such Global Exchange Note, and the Depositary may be treated by Holdings,
the Trustee and any agent of Holdings or the Trustee as the absolute owner of
such Global Exchange Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent Holdings, the Trustee or any agent of
Holdings or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Exchange Note.
(d) Definitive Notes. Except as provided in Sections 2.3 or
2.4, owners of beneficial interests in Global Exchange Notes will not be
entitled to receive physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and make
available for delivery upon a written order of Holdings signed by one Officer
(a) Initial Definitive Notes for original issue on the date hereof in an
aggregate principal amount at maturity of $98,473,000, plus any PIK Notes
issued hereunder, (b) subject to the terms of this Indenture, Exchange Notes in
the form of Global Exchange Notes for issue in a Registered Exchange Offer
pursuant to the Registration Agreement in a like principal amount at maturity
of the Initial Notes (including any PIK Notes issued thereon) exchanged
pursuant thereto, (c) subject to the terms of this Indenture, Exchange Notes in
the form of Global Exchange Notes in lieu of Initial Notes (including any PIK
Notes issued thereon) upon the sale of such Initial Notes (i) under a Shelf
Registration Statement or (ii) at any time that such Initial Notes (including
any PIK Notes issued thereon) being sold are not Transfer Restricted Notes and
(d) subject to the terms of this Indenture, upon presentation to the Trustee of
Initial Notes (including any PIK Notes issued thereon) that are not Transfer
Restricted Notes. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes or Exchange Notes.
The aggregate principal amount at maturity of Notes outstanding at any time may
not exceed $98,473,000, plus any PIK Notes issued hereunder, except as provided
in Sections 2.07 and 2.08 of this Indenture.
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2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes;
or
(ii) to exchange such Definitive Notes for an equal
principal amount at maturity of Definitive Notes of other
authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably
satisfactory to Holdings and the Registrar, duly
executed by the Holder thereof or his attorney duly
authorized in writing; and
(2) in the case of Transfer Restricted Notes are
accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Notes are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (in the form set forth on the reverse side
of the Initial Note); or
(B) if such Definitive Notes are being
transferred to Holdings, a certification to that
effect (in the form set forth on the reverse side
of the Initial Note); or
(C) if such Definitive Notes are being
transferred pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or in reliance upon another
exemption from the registration requirements of
the Securities Act, (x) a certification to that
effect (in the form set forth on the reverse side
of the Initial Note) and (y) if Holdings so
requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance
with the restrictions set forth in the legend set
forth in Section 2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Exchange Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Exchange Note except (i) as
part of a Registered Exchange Offer, (ii) upon sale of the Definitive Note
under the Shelf Registration Statement, (iii) upon sale of the Definitive Note
at the time such Definitive Note is not a Transfer Restricted Note or (iv) upon
presentation to the Trustee of Definitive Notes that are not Transfer
Restricted Notes. Upon receipt by the Trustee of a Definitive Note, duly
endorsed or accompanied by a written
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instrument of transfer in form reasonably satisfactory to Holdings and the
Registrar, together with written instructions directing the Trustee to make, or
to direct the Notes Custodian to make, an adjustment on its books and records
with respect to such Global Exchange Note to reflect an increase in the
aggregate principal amount at maturity of the Notes represented by the Global
Exchange Note, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee shall
cancel such Definitive Note and cause, or direct the Notes Custodian to cause,
in accordance with the standing instructions and procedures existing between
the Depositary and the Notes Custodian, the aggregate principal amount at
maturity of Notes represented by the Global Exchange Note to be increased by
the aggregate principal amount at maturity of the Definitive Note to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Exchange
Note equal to the principal amount at maturity of the Definitive Note so
canceled. If no Global Exchange Notes are then outstanding and the Global
Exchange Note has not been previously exchanged for certificated Notes pursuant
to Section 2.4, Holdings shall issue and the Trustee shall authenticate, upon
written order of Holdings in the form of an Officers' Certificate, a new Global
Exchange Note in the appropriate principal amount at maturity.
(c) Transfer and Exchange of Global Exchange Notes.
(i) The transfer of the Global Exchange Note or
beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures
of the Depositary therefor. A transferor of a beneficial
interest in a Global Exchange Note shall deliver a written order
given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary
to be credited with a beneficial interest in such Global
Exchange Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable
Global Exchange Note and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial
interest in the Global Exchange Note being transferred.
(ii) Notwithstanding any other provisions of this
Appendix (other than the provisions set forth in Section 2.4), a
Global Exchange Note may not be transferred as a whole except by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(d) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii) or (iv), each Definitive Note (and all Notes issued
in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form (each defined term in
the legend being defined as such for purposes of the legend
only):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
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STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH MAXXIM MEDICAL, INC., A TEXAS
CORPORATION ("HOLDINGS") OR ANY AFFILIATE OF HOLDINGS WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO HOLDINGS, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT AT MATURITY OF THE NOTES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO HOLDINGS' AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
FOR PURPOSES OF SECTIONS *1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE REGULATIONS THEREUNDER, HOLDERS MAY OBTAIN
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
AND THE YIELD TO MATURITY FROM THE CORPORATE SECRETARY OF THE COMPANY AT 1300
49TH STREET NORTH, CLEARWATER, FLORIDA 33762.
Each Definitive Note shall bear the following additional legend:
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IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Note that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Note for a
Definitive Note that does not bear the legends set forth above
and rescind any restriction on the transfer of such Transfer
Restricted Note if the Holder certifies in writing to the
Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set
forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes during the
period of the effectiveness of and pursuant to a Shelf
Registration Statement with respect to such Initial Notes all
requirements pertaining to the Restricted Notes Legend on such
Initial Notes shall cease to apply and the requirements that any
such Initial Notes be issued in global form shall become
applicable.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Notes pursuant to which
Holders of such Initial Notes are offered Exchange Notes in
exchange for their Initial Notes, Exchange Notes in global form
without the Restricted Notes Legend shall be available to
Holders that exchange such Initial Notes in such Registered
Exchange Offer.
(e) Cancellation or Adjustment of Global Exchange Note. At
such time as all beneficial interests in a Global Exchange Note have either
been exchanged for Definitive Notes, transferred, redeemed, repurchased or
canceled, such Global Exchange Note shall be returned by the Depositary to the
Trustee for cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Exchange
Note is exchanged for Definitive Notes, transferred in exchange for an interest
in another Global Exchange Note, redeemed, repurchased or canceled, the
principal amount at maturity of Notes represented by such Global Exchange Note
shall be reduced and an adjustment shall be made on the books and records of
the Trustee (if it is then the Notes Custodian for such Global Exchange Note)
with respect to such Global Exchange Note, by the Trustee or the Notes
Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of
Notes.
(i) To permit registrations of transfers and exchanges,
Holdings shall execute and the Trustee shall authenticate,
Definitive Notes and Global Exchange Notes at the Registrar's
request.
(ii) No service charge shall be made for any
registration of transfer or exchange, but Holdings may require
payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in
connection therewith
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(other than any such transfer taxes, assessments or similar
governmental charge payable upon exchanges pursuant to Sections
3.06, 4.06, 4.08 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Note, Holdings, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Note
is registered as the absolute owner of such Note for the purpose
of receiving payment of principal of, and interest on, and
Additional Amounts, if any, with respect to, such Note and for
all other purposes whatsoever, whether or not such Note is
overdue, and none of Holdings, the Trustee, the Paying Agent or
the Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or
exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Exchange Note, a
member of, or a participant in the Depositary or any other
Person with respect to the accuracy of the records of the
Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or
with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes.
All notices and communications to be given to the Holders and
all payments to be made to Holders under the Notes shall be
given or made only to the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Exchange
Note). The rights of beneficial owners in any Global Exchange
Note shall be exercised only through the Depositary subject to
the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in
any Note (including any transfers between or among Depositary
participants, members or beneficial owners in any Global
Exchange Note) other than to require delivery of such
certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the
express requirements hereof.
2.4 Definitive Notes
(a) A Global Exchange Note deposited with the Depositary or
with the Trustee as Notes Custodian pursuant to Section 2.1 or issued in
connection with a Registered
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Exchange Offer shall be transferred to the beneficial owners thereof in the
form of Definitive Notes in an aggregate principal amount at maturity equal to
the principal amount at maturity of such Global Exchange Note, in exchange for
such Global Exchange Note, only if such transfer complies with Section 2.3 and
(i) the Depositary notifies Holdings that it is unwilling or unable to continue
as a Depositary for such Global Exchange Note or if at any time the Depositary
ceases to be a "clearing agency" registered under the Exchange Act, and a
successor depositary is not appointed by Holdings within 90 days of such notice
or after Holdings becomes aware of such cessation, or (ii) an Event of Default
has occurred and is continuing or (iii) Holdings, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Notes under this Indenture.
(b) Any Global Exchange Note that is transferable to the
beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by
the Depositary to the Trustee, to be so transferred, in whole or from time to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Exchange Note, an equal
aggregate principal amount at maturity of Definitive Notes of authorized
denominations. Any portion of a Global Exchange Note transferred pursuant to
this paragraph shall be executed, authenticated and delivered only in
denominations of $1,000 (in principal amount at maturity) and any integral
multiple thereof and registered in such names as the Depositary shall direct.
Any certificated Initial Note in the form of a Definitive Note delivered in
exchange for an interest in the Global Exchange Note shall, except as otherwise
provided by Section 2.3(d), bear the Restricted Notes Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Exchange Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), Holdings will promptly make
available to the Trustee a reasonable supply of Definitive Notes in fully
registered form without interest coupons.
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EXHIBIT A
FORM OF FACE OF INITIAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH MAXXIM MEDICAL, INC., A TEXAS
CORPORATION ("HOLDINGS") OR ANY AFFILIATE OF HOLDINGS WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO HOLDINGS, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT AT MATURITY OF THE NOTES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO HOLDINGS' AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
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FOR PURPOSES OF SECTIONS *1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE REGULATIONS THEREUNDER, HOLDERS MAY OBTAIN
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
AND THE YIELD TO MATURITY FROM THE CORPORATE SECRETARY OF THE COMPANY AT 1300
49TH STREET NORTH, CLEARWATER, FLORIDA 33762.
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No. [___________] $__________
Senior Discount Note due 2010
MAXXIM MEDICAL, INC., a Texas corporation, promises to pay to
[___________] or registered assigns, the principal sum of [ ] Dollars on
November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
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Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
MAXXIM MEDICAL, INC.,
By:
-------------------------------------------
Name:
Title:
Dated: November 12, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
WILMINGTON TRUST COMPANY
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
------------------------------------
Authorized Signatory
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FORM OF REVERSE SIDE OF INITIAL NOTE
Senior Discount Note due 2010
1. Interest
(a) MAXXIM MEDICAL, INC., a Texas corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called "Holdings"), promises to pay interest on the Accreted Value
of this Note at the rate of 14% per annum. Interest on the Notes shall accrue
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid or duly provided for, from November 15, 2004
until the principal hereof is due. Interest shall accrete through November 15,
2004 (as provided in the definition of "Accreted Value") and no cash interest
shall be due or accrue prior to such date. Holdings shall pay cash interest in
arrears semiannually on May 15th and November 15th of each year commencing May
15, 2005; provided that in the event that Holdings does not have the cash or
Temporary Cash Investments with which to make a cash interest payment on any
such interest payment date and the distribution by Maxxim Medical Group, Inc.,
a Delaware corporation and a Wholly Owned Subsidiary of Holdings (the
"Company"), of funds sufficient to make such cash interest payment on such
interest payment date would violate the provisions of the Bank Indebtedness or
the Company Note Indenture or any Refinancing Indebtedness with respect
thereto, then Holdings shall pay cash interest on such interest payment date
only in such amount as is on hand and can be so paid or distributed without
violating such provisions and the balance of the cash interest otherwise
payable on such interest payment date shall be paid by Holdings through the
issuance of additional Notes, each dated as of such interest payment date, in
an aggregate principal amount equal to the portion of such cash interest
payment which cannot so be paid in cash (such additional Notes sometimes
referred to as "PIK Notes"). Interest shall be computed on the basis of a
360-day year of twelve 30-day months. Holdings shall pay interest on overdue
principal at the rate of 16% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Additional Amounts. The holder of this Note is entitled to the
benefits of the Registration Agreement, dated as of November 12, 1999, among
Holdings and the Purchasers named therein. Capitalized terms used in this
paragraph (b) but not defined herein have the meanings assigned to them in the
Registration Agreement. If (i) the Shelf Registration Statement or Exchange
Offer Registration Statement, as applicable under the Registration Agreement,
is not filed with the Commission on or prior to 75 days after the Trigger Date,
(ii) the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, is not declared effective on or prior to 150
days after the Trigger Date (or in the case of a Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretation of the Commission's staff, if later, on or prior to 60 days
after publication of the change in law or interpretation), (iii) the Registered
Exchange Offer is not consummated on or prior to 180 days after the Trigger
Date, or (iv) the Shelf Registration Statement is filed and declared effective
on or prior to 150 days after the Trigger Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretation of the Commission's staff, if later, on or prior
to 60 days after publication of the change in law or interpretation) but shall
thereafter cease to be effective (at any time that Holdings is obligated to
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maintain the effectiveness thereof) without being succeeded within 45 days by
an additional Registration Statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default"),
Holdings shall be obligated to pay Additional Amounts to each holder of
Transfer Restricted Notes, during the period of one or more such Registration
Defaults, in an amount equal to $0.192 per week per $1,000 of Accreted Value as
of the most recent interest payment date, or if no interest has been paid, the
Trigger Date of Transfer Restricted Notes held by such holder until (i) the
applicable Registration Statement is filed, (ii) the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer is
consummated or the Shelf Registration Statement again becomes effective, as the
case may be. All accrued Additional Amounts shall be paid to holders in the
same manner as interest payments on the Notes on semi-annual payment dates
which correspond to interest payment dates for the Notes. Following the cure of
all Registration Defaults, the accrual of Additional Amounts shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such Additional Amounts. For purposes of the foregoing, "Transfer
Restricted Notes" means (i) each Initial Note (including any PIK Notes issued
thereon) until the date on which such Initial Note has been exchanged for a
freely transferable Exchange Note in the Registered Exchange Offer, (ii) each
Initial Note (including any PIK Notes issued thereon) until the date on which
such Initial Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement or (iii) each
Initial Note (including any PIK Notes issued thereon) until the date on which
such Initial Note is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
2. Method of Payment
Holdings shall pay interest on the Notes (except defaulted interest) to
the Persons who are registered holders of Notes at the close of business on the
May 1 or November 1 next preceding the interest payment date beginning with May
15, 2005 even if Notes are cancelled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Holdings shall pay principal, Additional Amounts,
if any, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. Holdings
will make all payments payable in cash in respect of a certificated Note
(including principal and interest), by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on the Notes
may also be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount at maturity of Notes, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Holdings shall maintain an office or agency, which shall be located in
the Borough of Manhattan, The City of New York, where Notes may be presented
for registration of transfer or for exchange (the "Registrar") and an office or
agency where Notes may be presented for
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payment (the "Paying Agent"). Initially, Wilmington Trust Company, a Delaware
banking corporation (acting not in its capacity but solely as trustee, the
"Trustee"), will act as Paying Agent and Registrar (however, for the purpose of
meeting the requirement of an office in the Borough of Manhattan, Harris Trust
Company of New York shall serve in such capacity). Holdings may appoint and
change any Paying Agent, Registrar or co-registrar without notice. Holdings or
any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
Holdings issued the Notes under an Indenture dated as of November 10,
1999 (the "Indenture"), between Holdings 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.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture used but not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Notes are senior unsecured discount obligations of Holdings limited
to $98,473,000, in aggregate principal amount at maturity at any one time
outstanding plus any PIK Notes issued hereunder, (subject to Section 2.07 of
the Indenture). This Note is one of the Initial Notes referred to in the
Indenture issued in an aggregate principal amount at maturity of $98,473,000
exclusive of any additional PIK Notes issued hereunder. The Notes include the
Initial Notes and any Exchange Notes issued in exchange for Initial Notes and,
in each case, any PIK Notes issued thereon. The Initial Notes, the Exchange
Notes and the PIK Notes are treated as a single class of Notes under the
Indenture. The Indenture imposes certain limitations on the ability of Holdings
and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates and make asset sales. The
Indenture also imposes limitations on the ability of Holdings to consolidate or
merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of Holdings.
5. Optional Redemption.
Except as set forth in the following paragraph, the Notes shall not be
redeemable at the option of Holdings prior to November 15, 2002. Thereafter,
the Notes shall be redeemable at the option of Holdings, in whole or in part,
on not less than 30 nor more than 60 days' prior notice, at the following
redemption prices (expressed as percentages of Accreted Value), plus an amount
equal to accrued and unpaid interest thereon and Additional Amounts, if any, in
respect thereof to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest and Additional Amounts,
if any due on the relevant interest payment date), if redeemed during the
twelve-month period commencing on November 15 of the years set forth below:
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YEAR REDEMPTION PRICE
---- ----------------
2002 107.000%
2003 106.000%
2004 105.000%
2005 104.000%
2006 and thereafter 100.000%
Prior to November 15, 2002, Holdings may, at its option, on one or more
occasions, redeem Notes representing up to a maximum of 30% of the aggregate
principal amount at maturity of the Notes with the Net Cash Proceeds of one or
more Public Equity Offerings by Holdings of its Capital Stock (other than
Disqualified Stock) at a redemption price equal to 110% of the Accreted Value
thereof, plus the Additional Amounts, if any, in respect thereof to the
redemption date (subject to the right of holders of record on the relevant
record date to receive Additional Amounts, if any, due on the relevant interest
payment date); provided, however, that after giving effect to any such
redemption, (i) at least 70% of the aggregate principal amount at maturity of
the Notes remains outstanding; and (ii) any such redemption shall be made
within 90 days of such Public Equity Offering by Holdings, upon not less than
30 nor more than 60 days' notice mailed to each holder of Notes being redeemed
and otherwise in accordance with the procedures set forth in the Indenture; and
provided further that any such single redemption shall be of a minimum of $5.0
million of Accreted Value of Notes.
Prior to November 15, 2002, Holdings may, at its option, redeem all but
not less than all of the Notes concurrently with the consummation of a Change
in Control (provided that each of the references to 35% in clause (b) of the
definition of such term in the Indenture shall solely for purposes of this
sentence be 50.1%), including without limitation the sale of all of the Capital
Stock of the Company, at a redemption price equal to (i) the principal amount
thereof plus Additional Amounts thereon, if any, to the redemption date plus
(ii) the Make Whole Premium, as defined below.
As used herein, "Make Whole Premium" means, with respect to a Note, the
greater of (i) 1.0% of the then outstanding Accreted Value of such Note and
(ii) (a) the present value of all remaining required interest and principal
payments due on such Note and all premium payments relating thereto assuming a
redemption date of November 15, 2002, computed using a discount rate equal to
the Treasury Rate plus 50 basis points minus (b) the then outstanding Accreted
Value of such Note minus (c) accrued interest thereon paid on the redemption
date; provided, however, that in no case shall the Make Whole Premium be less
than zero. For purposes of this definition, the "Treasury Rate" shall mean a
rate equal to the then current yield to maturity on the most actively traded
U.S. Treasury security having a maturity equal to the remaining average life
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of this Note. In the event there are not actively traded U.S. Treasury
securities with a maturity equal to the remaining average life of this Note,
then the yield to maturity shall be determined by linear interpolation using
the closest, but shorter, maturity for actively traded U.S. Treasury securities
and the closest, but longer, maturity for actively traded U.S. Treasury
maturities.
6. Sinking Fund
The Notes are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 (in principal amount at maturity) may be
redeemed in part but only in whole multiples of $1,000 (in principal amount at
maturity). If money sufficient to pay the redemption price of and accrued and
unpaid cash interest and Additional Amounts, if any, on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date, the Accreted Value ceases to accrete or cash
interest ceases to accrue, as applicable, on such Notes (or such portions
thereof) called for redemption.
8. Repurchase of Notes at the Option of Holders upon Change of Control
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right, subject to certain conditions specified in the Indenture, to
require Holdings to repurchase all or any part of the Notes of such Holder at a
purchase price in cash equal to 101% of the Accreted Value of the Notes to be
repurchased plus an amount equal to accrued and unpaid interest thereon and
Additional Amounts, if any, in respect thereof to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on the relevant interest
payment date that is on or prior to the date of purchase) as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, Holdings will be
required to offer to purchase Notes upon the occurrence of certain events.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
$1,000 (in principal amount at maturity) and integral multiples thereof. A
Holder may transfer or exchange Notes in accordance with the Indenture. Upon
any transfer or exchange, the Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. Holdings
shall not be required to make and the Registrar need not register transfers or
exchanges of Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or to transfer or
exchange any Notes for a period of 15 days prior to a selection of Notes to be
redeemed.
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10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this
Note may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest on the Notes remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to Holdings at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to Holdings and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, Holdings at any time may terminate some
of or all its obligations under the Notes and the Indenture if Holdings
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Notes to redemption or maturity, as the
case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Notes may be amended without prior notice to any Holder but
with the written consent of the Holders of at least a majority in aggregate
principal amount at maturity of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for the Notes) and (b)
any default may be waived with the written consent of the Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes.
Subject to certain exceptions set forth in the Indenture, without the consent
of any Holder of Notes, Holdings and the Trustee may amend the Indenture or the
Notes (a) to cure any ambiguity, omission, defect or inconsistency; (b) to
comply with Article 5 of the Indenture; (c) to provide for uncertificated Notes
in addition to or in place of certificated Notes (provided, however, that the
uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code); (d) to secure the Notes; (e) to
add to the covenants of Holdings for the benefit of the Holders or to surrender
any right or power conferred on Holdings in the Indenture; (f) to comply with
any requirement of the SEC in connection with qualifying, or maintaining the
qualification of the Indenture under the TIA; (g) to make any change that does
not adversely affect the rights of any Holder; (h) to provide for the issuance
of the Exchange Notes which shall have terms substantially identical in all
material respects to the Initial Notes (except that the transfer restrictions
contained in the Initial Notes shall be modified or eliminated, as
appropriate), and which shall be treated, together with any outstanding Initial
Notes, and any PIK Notes issued on the Initial Notes or the Exchange Notes, as
a single issue of securities; (i) to change the name of title of the Notes or
the Exchange Notes and to make conforming changes related thereto or (j) to
provide for the issuance of PIK Notes and exchange notes for such PIK Notes.
14. Defaults, Remedies and Acceleration
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If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of Holdings) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount at maturity of the outstanding Notes may declare the principal of and
accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of Holdings occurs, the principal of and interest on all the
Notes shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount at maturity of the
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
In case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any rights or powers under the Indenture at
the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Notes unless (i) such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing, (ii)
Holders of at least 25% in principal amount at maturity of the outstanding
Notes have requested the Trustee in writing to pursue the remedy, (iii) such
Holder or Holders have offered to the Trustee reasonable security or indemnity
against any loss, liability or expense, (iv) the Trustee has not complied with
such request within 60 days after receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount at
maturity of the outstanding Notes have not given the Trustee a direction
inconsistent with such request during such 60-day period. Subject to certain
restrictions, the Holders of a majority in principal amount at maturity of the
outstanding Notes are given the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or,
that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability. Prior to taking any
action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
15. Trustee Dealings with Holdings
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by Holdings or its Affiliates and may otherwise deal with Holdings or its
Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of Holdings
shall not have any liability for any obligations of Holdings under the Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
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17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP or Private Placement Numbers
Holdings has caused Private Placement or CUSIP numbers to be printed on
the Notes and has directed the Trustee to use Private Placement or CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
HOLDINGS WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT
OF THIS NOTE.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Note on the books of Holdings. The agent may substitute another to act for him.
_________________________________________________________________
Date: ________________ Your Signature: __________________________
_________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED NOTES
This certificate relates to $_________ principal amount at maturity of
Notes held in definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange
or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to Holdings; or
(2) [ ] to the Registrar for registration in the name of the Holder, without
transfer; or
(3) [ ] pursuant to an effective registration statement under the Securities
Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that purchases
for its own account or for the account of a qualified institutional
buyer to whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
(6) [ ] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has
furnished to the Trustee a signed letter containing certain
representations and agreements; or
(7) [ ] pursuant to another available exemption from registration provided
by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any Person other
than the registered holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee may require, prior to registering any such transfer
of the Notes, such legal opinions, certifications and other information as
Holdings has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
-------------------------------------------
Your Signature
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Signature Guarantee:
Date: _________________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
______________________________________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding Holdings
as the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________ _________________________________
NOTICE: To be executed by
an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY HOLDINGS PURSUANT
TO SECTION 4.06 (LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK) OR 4.08
(CHANGE OF CONTROL) OF THE INDENTURE, CHECK THE BOX:
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK (CHANGE OF CONTROL)
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY
HOLDINGS PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE PRINCIPAL
AMOUNT AT MATURITY ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED SIGNATURE
GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE
TRUSTEE
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EXHIBIT B
FORM OF FACE OF EXCHANGE NOTE
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO MAXXIM MEDICAL, INC., A TEXAS CORPORATION ("HOLDINGS") OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL EXCHANGE NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL EXCHANGE NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
FOR PURPOSES OF SECTIONS *1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE REGULATIONS THEREUNDER, HOLDERS MAY OBTAIN
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
AND THE YIELD TO MATURITY FROM THE CORPORATE SECRETARY OF THE COMPANY AT 10300
49TH STREET NORTH, CLEARWATER, FLORIDA 33762.
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96
No. $__________
Senior Discount Note due 2010
CUSIP No. ______
MAXXIM MEDICAL, INC., a Texas corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum at maturity [of Dollars] [listed
on the Schedule of Increases or Decreases in Global Exchange Note attached
hereto]1 on November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
- --------
1 Use the Schedule of Increases and Decreases language if Note is in
Global Form
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97
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
MAXXIM MEDICAL, INC.,
By: _______________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WILMINGTON TRUST COMPANY
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By: _____________________________
Name:
Title:
_____________________________
*/ If the Note is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL EXCHANGE
NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL EXCHANGE NOTE".
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98
FORM OF REVERSE SIDE OF EXCHANGE NOTE
Senior Discount Note due 2010
1. Interest
MAXXIM MEDICAL, INC., a Texas corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called "Holdings"), promises to pay interest on the Accreted Value of
this Note at the rate of 14% per annum. Holdings shall pay interest
semiannually on May 15th and November 15th of each year. Such interest on the
Notes shall accrue from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for, from
November 15, 2004 until the principal hereof is due. Interest shall accrete
through November 15, 2004 (as provided in the definition of "Accreted Value")
and no cash interest shall be due or accrue prior to such date. Holdings shall
pay cash interest in arrears semi-annually on May 15 and November 15 of each
year commencing May 15, 2005; provided that in the event that Holdings does not
have the cash or Temporary Cash Investments with which to make a cash interest
payment on any such interest payment date and the distribution by Maxxim
Medical Group, Inc., a Delaware corporation and a Wholly Owned Subsidiary of
Holdings (the "Company"), of funds sufficient to make such cash interest
payment on such interest payment date would violate the provisions of the Bank
Indebtedness or the Company Note Indenture or any Refinancing Indebtedness with
respect thereto, then Holdings shall pay cash interest on such interest payment
date only in such amount as is on hand or can be so paid or distributed without
violating such provisions and the balance of the cash interest otherwise
payable on such interest payment date shall be paid by Holdings through the
issuance of additional Notes, each dated as of such interest payment date, in
an aggregate principal amount equal to the portion of such cash interest
payment which cannot so be paid in cash (such additional Notes sometimes
referred to as "PIK Notes"). Interest shall be computed on the basis of a
360-day year of twelve 30-day months. Holdings shall pay interest on overdue
principal at the rate of 16% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
Holdings shall pay interest on the Notes (except defaulted interest) to
the Persons who are registered holders of Notes at the close of business on the
May 1st or November 1st next preceding the interest payment date beginning with
May 15, 2005 even if Notes are cancelled after the record date and on or before
the interest payment date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Holdings shall pay principal, Additional Amounts
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Notes represented by a Global Exchange Note (including
principal, Additional Amounts and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. Holdings will make all payments in respect of a certificated Note
(including principal and interest), by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on the Notes
may also be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount at maturity of Notes, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment
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by wire transfer by giving written notice to the Trustee or the Paying Agent to
such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar
Holdings shall maintain an office or agency, which shall be located in
the Borough of Manhattan, The City of New York, where Notes may be presented
for registration of transfer or for exchange (the "Registrar") and an office or
agency where Notes may be presented for payment (the "Paying Agent").
Initially, Wilmington Trust Company, a Delaware banking corporation (the
"Trustee"), will act as Paying Agent and Registrar (however, for the purpose of
meeting the requirement of an office in the Borough of Manhattan, Harris Trust
Company of New York shall serve in such capacity). Holdings may appoint and
change any Paying Agent, Registrar or co-registrar without notice. Holdings or
any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
Holdings issued the Notes under an Indenture dated as of November 12,
1999 (the "Indenture"), among Holdings 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.C. ss.ss. 77aaa-77bbbb) as
in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture used but not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all terms and provisions of the Indenture,
and Holders (as defined in the Indenture) are referred to the Indenture and the
TIA for a statement of such terms and provisions.
The Notes are senior unsecured discount obligations of Holdings limited
to $98,473,000 in an aggregate principal amount at maturity at any one time
outstanding, together with any additional PIK Notes issued hereunder, (subject
to Section 2.07 of the Indenture). This Note is one of the Exchange Notes
referred to in the Indenture issued in an aggregate principal amount at
maturity of $98,473,000, exclusive of any additional PIK Notes issued
hereunder. The Notes include the Initial Notes and any Exchange Notes issued in
exchange for Initial Notes and in each case any PIK Notes issued thereon. The
Initial Notes, the Exchange Notes and the PIK Notes are treated as a single
class of Notes under the Indenture. The Indenture imposes certain limitations
on the ability of Holdings and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of such Restricted
Subsidiaries and enter into or permit certain transactions with Affiliates and
make asset sales. The Indenture also imposes limitations on the ability of
Holdings to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of Holdings.
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5. Optional Redemption
Except as set forth in the following paragraph, the Notes shall not be
redeemable at the option of Holdings prior to November 15, 2002. Thereafter,
the Notes shall be redeemable at the option of Holdings, in whole or in part,
on not less than 30 nor more than 60 days' prior notice, at the following
redemption prices (expressed as percentages of Accreted Value), plus an amount
equal to accrued and unpaid interest thereon and Additional Amounts, if any, in
respect thereof to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest and Additional Amounts,
if any due on the relevant interest payment date), if redeemed during the
twelve-month period commencing on November 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2002 107.000%
2003 106.000%
2004 105.000%
2005 104.000%
2006 and thereafter 100.000%
Prior to November 15, 2002, Holdings may, at its option, on one or more
occasions, redeem Notes representing up to a maximum of 30% of the aggregate
principal amount at maturity of the Notes with the Net Cash Proceeds of one or
more Public Equity Offerings by Holdings of its Capital Stock (other than
Disqualified Stock) at a redemption price equal to 110% of the Accreted Value
thereof, plus accrued and unpaid interest thereon and Additional Amounts, if
any, in respect thereof to the redemption date (subject to the right of holders
of record on the relevant record date to receive Additional Amounts, if any,
due on the relevant interest payment date); provided, however, that after
giving effect to any such redemption, (i) at least 70% of the aggregate
principal amount at maturity of the Notes remains outstanding; and (ii) any
such redemption shall be made within 90 days of such Public Equity Offering by
Holdings upon not less than 30 nor more than 60 days' notice mailed to each
holder of Notes being redeemed and otherwise in accordance with the procedures
set forth in the Indenture; and provided further that any such single
redemption shall be a minimum of $5.0 million of Accreted Value of Notes.
Prior to November 15, 2002, Holdings may, at its option, redeem all but
not less than all of the Notes concurrently with the consummation of a Change
in Control (provided that each of the references to 35% in clause (b) of the
definition of such term in the Indenture shall solely for purposes of this
sentence be 50.1%), including without limitation the sale of all of the Capital
Stock of the Company, at a redemption price equal to (i) principal thereof plus
Additional Amounts thereon, if any, to the redemption date plus (ii) the Make
Whole Premium, as defined below.
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As used herein, "Make Whole Premium" means, with respect to a Note, the
greater of (i) 1.0% of the then outstanding Accreted Value of such Note and
(ii) (a) the present value of all remaining required interest and principal
payments due on such Note and all premium payments relating thereto assuming a
redemption date of November 15, 2002, computed using a discount rate equal to
the Treasury Rate plus 50 basis points minus (b) the then outstanding Accreted
Value of such Note minus (c) accrued interest thereon paid on the redemption
date; provided, however, that in no case shall the Make Whole Premium be less
than zero. For purposes of this definition, the "Treasury Rate" shall mean a
rate equal to the then current yield to maturity on the most actively traded
U.S. Treasury security having a maturity equal to the remaining average life of
this Note. In the event there are not actively traded U.S. Treasury securities
with a maturity equal to the remaining average life of this Note, then the
yield to maturity shall be determined by linear interpolation using the
closest, but shorter, maturity for actively traded U.S. Treasury securities and
the closest, but longer, maturity for actively traded U.S. Treasury maturities.
6. Sinking Fund
The Notes are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 (in principal amount at maturity) may be
redeemed in part but only in whole multiples of $1,000 (in principal amount at
maturity). If money sufficient to pay the redemption price of and accrued and
unpaid cash interest and Additional Amounts, if any, on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date, the Accreted Value ceases to accrete or cash
interest ceases to accrue, as applicable, on such Notes (or such portions
thereof) called for redemption.
8. Repurchase of Notes at the Option of Holders upon Change of Control
Upon the occurrence of a Change of Control, each Holder of Notes will
have the right, subject to certain conditions specified in the Indenture, to
require Holdings to repurchase all or any part of the Notes of such Holder at a
purchase price in cash equal to 101% of the Accreted Value of the Notes to be
repurchased, plus accrued and unpaid interest thereon) and, in each case
Additional Amounts, if any, in respect thereof to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on the relevant interest
payment date) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, Holdings will be
required to offer to purchase Notes upon the occurrence of certain events.
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9. Denominations; Transfer; Exchange
The Notes are in certificated form without coupons in denominations of
$1,000 in principal amount at maturity and integral multiples thereof. A Holder
may transfer or exchange Initial Notes in accordance with the Indenture. Upon
any transfer or exchange, the Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. Holdings
shall not be required to make and the Registrar need not register transfers or
exchanges of any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) or any
Notes for a period of 15 days prior to a selection of Notes to be redeemed.
10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this
Note may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal of or interest on the Notes
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to Holdings at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the
money must look only to Holdings and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, Holdings at any time may terminate some
of or all its obligations under the Notes and the Indenture if Holdings
deposits with the Trustee money or U.S. Government Obligations for the payment
of Accreted Value, principal and interest on the Notes to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Notes may be amended without prior notice to any Holder but
with the written consent of the Holders of at least a majority in aggregate
principal amount at maturity of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for the Notes) and (b)
any default may be waived with the written consent of the Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes.
Subject to certain exceptions set forth in the Indenture, without the consent
of any Holder of Notes, Holdings and the Trustee may amend the Indenture or the
Notes (a) to cure any ambiguity, omission, defect or inconsistency; (b) to
comply with Article 5 of the Indenture; (c) to provide for uncertificated Notes
in addition to or in place of certificated Notes (provided, however, that the
uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code); (d) to secure the Notes; (e) to
add to the covenants of Holdings for the benefit of the Holders or to surrender
any right or power conferred on Holdings in the Indenture; (f) to comply with
any requirement of the SEC in connection with qualifying, or maintaining the
qualification of the
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Indenture under the TIA; (g) to make any change that does not adversely affect
the rights of any Holder; or (h) to provide for the issuance of the Exchange
Notes which shall have terms substantially identical in all material respects
to the Initial Notes (except that the transfer restrictions contained in the
Initial Notes shall be modified or eliminated, as appropriate), and which shall
be treated, together with any outstanding Initial Notes, and any PIK Notes
issued on the Initial Notes or the Exchange Notes as a single issue of
securities; (i) to change the name or title of the Notes or the Exchange Notes
and to make conforming changes related thereto or (j) to provide for the
issuance of PIK Notes and exchange notes for such PIK Notes.
14. Defaults, Remedies and Acceleration
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of Holdings) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount at maturity of the outstanding Notes may declare the principal of and
accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of Holdings occurs, the principal of and interest on all the
Notes shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount at maturity of the
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
In case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any rights or powers under the Indenture at
the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Notes unless (i) such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing, (ii)
Holders of at least 25% in principal amount at maturity of the outstanding
Notes have requested the Trustee in writing to pursue the remedy, (iii) such
Holder or Holders have offered the Trustee reasonable security or indemnity
against any loss, liability or expense, (iv) the Trustee has not complied with
such request during 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount at
maturity of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period. Subject to certain
restrictions, the Holders of a majority in principal amount at maturity of the
outstanding Notes are given the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or,
that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability. Prior to taking any
action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
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15. Trustee Dealings with Holdings
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by Holdings or its Affiliates and may otherwise deal with Holdings or its
Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of Holdings
shall not have any liability for any obligations of Holdings under the Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
HOLDINGS WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT
OF THIS NOTE.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Note on the books of Holdings. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY HOLDINGS PURSUANT
TO SECTION 4.06 (LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK) OR 4.08
(CHANGE OF CONTROL) OF THE INDENTURE, CHECK THE BOX:
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK (CHANGE OF CONTROL)
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY
HOLDINGS PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE PRINCIPAL
AMOUNT AT MATURITY ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED SIGNATURE
GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE
TRUSTEE.
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