1
EXHIBIT 4.1
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BECKMAN INSTRUMENTS, INC., as Issuer,
THE NOTE GUARANTORS named herein, as Note Guarantors,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
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Senior Indenture
Dated as of March 4, 1998
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Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a)(1)..........................................................609
(a)(2)..................................................................609
(a)(3).......................................................Not Applicable
(a)(4).......................................................Not Applicable
(b).....................................................................608
610
Section 311(a).............................................................613
(b).....................................................................613
Section 312(a).............................................................701
702
(b).....................................................................702
(c).....................................................................702
Section 313(a).............................................................703
(b).....................................................................703
(c).....................................................................703
(d).....................................................................703
Section 314(a).............................................................704
(a)(4)..................................................................102
1004
(b)..........................................................Not Applicable
(c)(1)..................................................................102
(c)(2)..................................................................102
(c)(3).......................................................Not Applicable
(d)..........................................................Not Applicable
(e).....................................................................102
Section 315(a).............................................................601
(b).....................................................................602
(c).....................................................................601
(d).....................................................................601
(e).....................................................................514
Section 316(a).............................................................512
(a)(1)(A)...............................................................502
512
(a)(1)(B)...............................................................513
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(a)(2).......................................................Not Applicable
(b).....................................................................508
(c).....................................................................104
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Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a)(1)..........................................................609
(a)(2)..................................................................609
(a)(3).......................................................Not Applicable
(a)(4).......................................................Not Applicable
(b).....................................................................608
610
Section 311(a).............................................................613
(b).....................................................................613
Section 312(a).............................................................701
702
(b).....................................................................702
(c).....................................................................702
Section 313(a).............................................................703
(b).....................................................................703
(c).....................................................................703
(d).....................................................................703
Section 314(a).............................................................704
(a)(4)..................................................................102
1004
(b)..........................................................Not Applicable
(c)(1)..................................................................102
(c)(2)..................................................................102
(c)(3).......................................................Not Applicable
(d)..........................................................Not Applicable
(e).....................................................................102
Section 315(a).............................................................601
(b).....................................................................602
(c).....................................................................601
(d).....................................................................601
(e).....................................................................514
Section 316(a).............................................................512
(a)(1)(A)...............................................................502
512
(a)(1)(B)...............................................................513
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(a)(2).......................................................Not Applicable
(b).....................................................................508
(c).....................................................................104
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Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 317(a)(1)..........................................................503
(a)(2)..................................................................504
(b)....................................................................1003
Section 318(a).............................................................107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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RECITALS ....................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................................................ 1
SECTION 102. Compliance Certificates and Opinions................................... 24
SECTION 103. Form of Documents Delivered to Trustee................................. 25
SECTION 104. Acts of Holders; Record Dates.......................................... 25
SECTION 105. Notices, Etc., to Trustee, Company and Note Guarantor.................. 27
SECTION 106. Notice to Holders; Waiver.............................................. 28
SECTION 107. Conflict with Trust Indenture Act...................................... 28
SECTION 108. Effect of Headings and Table of Contents............................... 28
SECTION 109. Successors and Assigns................................................. 28
SECTION 110. Separability Clause.................................................... 28
SECTION 111. Benefits of Indenture.................................................. 28
SECTION 112. Governing Law.......................................................... 28
SECTION 113. Legal Holidays......................................................... 29
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally........................................................ 29
SECTION 202. Form of Trustee's Certificate of Authentication........................ 30
SECTION 203. Restrictive and Global Security Legends................................ 30
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount; Series; Terms.................................................. 32
SECTION 302. Denominations.......................................................... 33
SECTION 303. Execution, Authentication, Delivery and Dating......................... 33
SECTION 304. Temporary Securities................................................... 34
SECTION 305. Registration, Registration of Transfer and Exchange.................... 34
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................... 35
SECTION 307. Payment of Interest; Interest Rights Preserved......................... 36
SECTION 308. Persons Deemed Owners.................................................. 37
SECTION 309. Cancellation........................................................... 37
SECTION 310. Computation of Interest................................................ 37
SECTION 311. Book-Entry Provisions for Global Securities............................ 37
SECTION 312. Transfer Provisions.................................................... 38
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................ 45
SECTION 402. Application of Trust Money............................................. 46
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................................... 47
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................... 48
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................................ 49
SECTION 504. Trustee May File Proofs of Claim....................................... 50
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities................................................. 50
SECTION 506. Application of Money Collected......................................... 50
SECTION 507. Limitation on Suits.................................................... 51
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest........................................................... 51
SECTION 509. Restoration of Rights and Remedies..................................... 52
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SECTION 510. Rights and Remedies Cumulative......................................... 52
SECTION 511. Delay or Omission Not Waiver........................................... 52
SECTION 512. Control by Holders..................................................... 52
SECTION 513. Waiver of Past Defaults................................................ 52
SECTION 514. Undertaking for Costs.................................................. 53
SECTION 515. Waiver of Usury, Stay or Extension Laws................................ 53
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................................... 53
SECTION 602. Notice of Defaults..................................................... 53
SECTION 603. Certain Rights of Trustee.............................................. 53
SECTION 604. Not Responsible for Recitals or Issuance of Securities................. 54
SECTION 605. May Hold Securities.................................................... 55
SECTION 606. Money Held in Trust.................................................... 55
SECTION 607. Compensation and Reimbursement......................................... 55
SECTION 608. Conflicting Interests.................................................. 55
SECTION 609. Corporate Trustee Required; Eligibility................................ 55
SECTION 610. Resignation and Removal; Appointment of Successor...................... 56
SECTION 611. Acceptance of Appointment by Successor................................. 57
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business................................................... 58
SECTION 613. Preferential Collection of Claims Against Company...................... 58
SECTION 614. Appointment of Authenticating Agent.................................... 58
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............. 60
SECTION 702. Preservation of Information; Communications to Holders................. 60
SECTION 703. Reports by Trustee..................................................... 60
SECTION 704. Reports by Company..................................................... 61
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms................... 61
SECTION 802. Successor Substituted.................................................. 62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..................... 62
SECTION 902. Supplemental Indentures With Consent of Holders........................ 63
SECTION 903. Execution of Supplemental Indentures................................... 64
SECTION 904. Effect of Supplemental Indentures...................................... 64
SECTION 905. Conformity with Trust Indenture Act.................................... 64
SECTION 906. Reference in Securities to Supplemental Indentures..................... 64
SECTION 907. Revocation and Effect of Consents...................................... 64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................. 65
SECTION 1002. Maintenance of Office or Agency........................................ 65
SECTION 1003. Money for Securities Payments to Be Held in Trust...................... 66
SECTION 1004. Statement by Officers as to Default.................................... 67
SECTION 1005. Existence.............................................................. 67
SECTION 1006. Maintenance of Properties.............................................. 67
SECTION 1007. Payment of Taxes and Other Claims...................................... 67
SECTION 1008. Limitation on Liens.................................................... 67
SECTION 1009. Limitation on Sale and Leaseback Transactions.......................... 69
SECTION 1010. Limitation on Incurrence of Indebtedness............................... 69
SECTION 1011. Limitation on Restricted Payments...................................... 69
SECTION 1012. Change of Control...................................................... 71
SECTION 1013. Future Note Guarantors................................................. 71
SECTION 1014. Provision of Financial Statements and Reports.......................... 72
SECTION 1015. Waiver of Certain Covenants............................................ 72
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Optional Redemption.................................................... 72
SECTION 1102. Election to Redeem; Notice to Trustee.................................. 73
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...................... 73
SECTION 1104. Notice of Redemption................................................... 73
SECTION 1105. Deposit of Redemption Price............................................ 74
SECTION 1106. Securities Payable on Redemption Date.................................. 74
SECTION 1107. Securities Redeemed in Part............................................ 74
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance.................................................... 75
SECTION 1202. Defeasance and Discharge............................................... 75
SECTION 1203. Covenant Defeasance.................................................... 75
SECTION 1204. Conditions to Defeasance or Covenant Defeasance........................ 76
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions................. 77
SECTION 1206. Reinstatement.......................................................... 78
ARTICLE THIRTEEN
GUARANTEE OF SECURITIES
SECTION 1301. Unconditional Guarantee................................................ 78
SECTION 1302. Additional Note Guarantors............................................. 80
SECTION 1303. Release of a Note Guarantee............................................ 80
SECTION 1304. Waiver of Subrogation.................................................. 81
SECTION 1305. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc.............................. 81
SECTION 1306. Article Thirteen Applicable to Paying Agents........................... 81
SECTION 1307. No Suspension of Remedies.............................................. 82
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INDENTURE, dated as of March 4, 1998, among Beckman Instruments,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 2500
Harbor Boulevard, Fullerton, California 92834, as issuer, the Note Guarantors
named herein (the "Note Guarantors"), as guarantors, and The First National Bank
of Chicago, a national banking association duly organized and existing under the
laws of the United States, as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of (i) its 7.10% Senior Notes due 2003
(the "Initial 2003 Notes") and 7.45% Senior Notes due 2008 (the "Initial 2008
Notes" and, together with the Initial 2003 Notes, the "Initial Securities") and
(ii) its 7.10% Senior Notes due 2003, Series B and 7.45% Senior Notes due 2008,
Series B to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement (the "Exchange 2003 Notes" and the "Exchange 2008
Notes", respectively, and, together, the "Exchange Securities"), in each case to
be issued as in this Indenture provided. The Initial 2003 Notes and the Exchange
2003 Notes are hereinafter collectively called the "2003 Notes", and the Initial
2008 Notes and the Exchange 2008 Notes are hereinafter collectively called the
"2008 Notes". The Initial Securities and the Exchange Securities are hereinafter
collectively called the "Securities".
Each Note Guarantor has duly authorized the execution and delivery
of this Indenture to provide for its senior Note Guarantee of the Securities, as
in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company and each Note Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of each series, as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquired Debt" means (x) Indebtedness of any Person (the "Acquired
Person") existing at the time the Acquired Person merges or consolidates with or
into, or becomes a Restricted Subsidiary of, the Company or any Restricted
Subsidiary, or (y) Indebtedness of any Person assumed by the Company or any
Restricted Subsidiary in connection with its acquisition of assets from such
Person, in each case excluding Indebtedness incurred in connection with, or in
contemplation of, the Acquired Person merging or consolidating with or into, or
becoming a Restricted Subsidiary of, the Company or any Restricted Subsidiary,
or such acquisition of assets.
"Acquisition" means the acquisition by the Company of all of the
capital stock of Coulter on October 31, 1997.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
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"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.25% in the case of the 2003
Notes, and 0.375%, in the case of the 2008 Notes.
"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 specified 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.
"Agent Members" has the meaning specified in Section 311.
"Asset Sale" means (i) any sale, lease, conveyance or other
disposition by the Company or any Restricted Subsidiary of any assets (including
by way of a sale-and-leaseback) other than (a) in the ordinary course of
business, (b) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company, which shall not be an "Asset
Sale" but instead shall be governed by the provisions of Section 801 and (c) any
"fee in lieu of" or other disposition of assets to any governmental authority or
agency that continue in use by the Company or any Restricted Subsidiary, so long
as the Company or any Restricted Subsidiary may obtain title to such assets at
any time upon reasonable notice by paying a nominal fee, or (ii) the issuance or
sale of Capital Stock of any Restricted Subsidiary, in the case of each of
clauses (i) and (ii), whether in a single transaction or a series of related
transactions, to any Person (other than the Company or a Restricted Subsidiary)
for Net Proceeds in excess of $1.0 million.
"Attributable Value," when used with respect to any sale and
leaseback transaction means, as of the time of determination, the total
obligation (discounted to present value at the interest rate assumed in making
calculations in accordance with FAS 13) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such sale and leaseback transaction.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
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"Bank Indebtedness" means any and all Indebtedness or other amounts,
whether outstanding on the Issue Date or thereafter incurred, payable under or
in respect of the Credit Facility or any refinancing in respect thereof, and any
Refinancing Indebtedness in respect thereof, including in each case (without
limitation) 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 or any Restricted Subsidiary whether or not a claim for
post-filing interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, Guarantees, other monetary obligations of any nature
and all other amounts payable under or in respect of any of the foregoing (and,
without limitation, whether incurred in accordance with any clause of the
definition of "Permitted Indebtedness" or the first sentence of Section 1010, or
otherwise).
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or any Note Guarantor, as the
case may be, to have been duly adopted by the Board of Directors or the board of
directors (or designated committee thereof) of the relevant Note Guarantor and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease for property leased by such Person that would at such time be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" of any Person means (i) in the case of a
corporation, corporate stock, (ii) in the case of an association, limited
liability company or business entity, any and all Equity Interests, (iii) in the
case of a partnership, partnership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person, including any Preferred Stock.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any instrumentality or agency thereof and backed by the full faith and credit of
the United States, in each case
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maturing within one year from the date of acquisition thereof; (ii) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality or agency
thereof maturing within one year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings obtainable from
either Standard & Poor's Ratings Services or Moody's Investors Service, Inc.;
(iii) commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1 from
Standard & Poor's Ratings Services or at least P-1 from Moody's Investors
Service, Inc.; (iv) certificates of deposit, time deposits or bankers'
acceptances (or, with respect to foreign banks, similar instruments) maturing
within one year from the date of acquisition thereof issued by (x) any lender
under the Credit Agreement or (y) a commercial banking institution that is a
member of the Federal Reserve System or a commercial banking institution
organized and located in a country recognized by the United States of America,
in each case, having combined capital and surplus and undivided profits in
excess of $500,000,000 (or the foreign currency equivalent thereof); (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; (vi) investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (i) through (v) above; and (vii) other short-term
investments utilized by Foreign Subsidiaries in accordance with normal
investment practices for cash management not exceeding $20 million in aggregate
principal amount outstanding at any time.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or con solidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company, or (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly, of more than 35% of the voting stock of the Company.
"Change of Control Downgrade" means, with respect to any Change of
Control, a downgrade in the rating assigned to any Securities arising out of or
otherwise attributable to such Change of Control (whether or not such Change of
Control has occurred at the time of such downgrade), which downgrade (i) if
prior to an Investment Grade Rating Date, is by any Rating Agency and (ii) if on
or after an Investment Grade Rating Date, is by any two Rating
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Agencies unless, after giving effect to such downgrade, the rating assigned to
such Securities by either of such two Rating Agencies is Investment Grade. For
purposes of the foregoing, and without limiting the generality thereof, a Change
of Control Downgrade with respect to any Change of Control shall be deemed to
have occurred if such Change of Control Downgrade occurs during any 90-day
period beginning prior to and ending after the occurrence of such Change of
Control.
"Change of Control Triggering Event" means the later to occur of (i)
any Change of Control and (ii) a Change of Control Downgrade with respect to
such Change of Control. Both a Change of Control and a Change of Control
Downgrade shall be required for a Change of Control Triggering Event to occur.
"Commission" means the Securities and Exchange Commission, from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Commodity Price Protection Agreement" means any forward contract,
commodity swap, commodity option or other similar financial agreement or
arrangement relating to, or the value which is dependent upon, fluctuations in
commodity prices.
"Company" means Beckman Instruments, Inc. (which is expected to be
renamed, subject to stockholder approval, Beckman Coulter, Inc.), a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate securities of comparable maturity
to the remaining term of such Securities. "Independent Investment Banker" means
one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
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"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations. "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Treasury Reference
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
"Consolidated Cash Flow" means, with respect to any period, the
Consolidated Net Income for such period, plus without duplication (i)
Consolidated Interest Expense for such period, plus (ii) provision for taxes
based on income, profits or capital, to the extent such provision for taxes was
included in computing such Consolidated Net Income, plus (iii) depreciation,
amortization (including, without limitation, amortization of goodwill and other
intangibles) and all other non-cash charges (excluding any non-cash charge which
requires an accrual or reserve for cash charges for any future period), to the
extent such depreciation, amortization and other non-cash charges were deducted
in computing such Consolidated Net Income.
"Consolidated Coverage Ratio" means, with respect to any date of
determination, the ratio of (i) the aggregate amount of Consolidated Cash Flow
for the period of the most recent four consecutive fiscal quarters ended prior
to such date for which consolidated financial statements of the Company are
available, to (ii) Consolidated Interest Expense for such four fiscal quarters,
provided that:
(1) if since the beginning of such period the Company or any
Restricted Subsidiary has incurred any Indebtedness that remains
outstanding on such date of determination, or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio involves an
incurrence of Indebtedness (including without limitation any Acquired
Debt), Consolidated Cash Flow and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to
such Indebtedness and the application of the proceeds thereof (and, in the
case of any Ac-
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quired Debt, the related acquisition) as if such Indebtedness had been
incurred (and any such acquisition had occurred) on the first day of such
period;
(2) if since the beginning of such period the Company or any
Restricted Subsidiary has repaid, repurchased, defeased, retired or
otherwise discharged (a "Discharge") any Indebtedness that is no longer
outstanding on such date of determination, or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio involves a
Discharge of Indebtedness, Consolidated Cash Flow and Consolidated
Interest Expense for such period shall be calculated after giving effect
to such Discharge of such Indebtedness, including with the proceeds of any
such new Indebtedness, as if such Discharge had occurred on the first day
of such period;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any company, any business,
any group of assets constituting an operating unit, or any other assets
out of the ordinary course of business (a "Sale"), (x) Consolidated Cash
Flow for such period shall be reduced by an amount equal to the
Consolidated Cash Flow (if positive) directly attributable to the assets
that are the subject of such Sale for such period or increased by an
amount equal to the Consolidated Cash Flow (if negative) directly
attributable thereto for such period and (y) Consolidated Interest Expense
for such period shall be reduced by an amount equal to the Consolidated
Interest Expense directly attributable to any Indebtedness of the Company
or any Restricted Subsidiary discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection with such Sale for
such period (and, if the Capital Stock of any Restricted Subsidiary is
sold, transferred or otherwise disposed of, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after
such sale, transfer or disposition);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary shall have acquired (by merger or otherwise, and
whether accounted for as a purchase, a pooling of interests or otherwise)
any company, any business, any group of assets constituting an operating
unit, or any other assets out of the ordinary course of business (a
"Purchase"), Consolidated Cash Flow and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto
(including the incurrence of any related Indebtedness) as if such Purchase
had occurred on the first day of such period; and
(5) if since the beginning of such period any Person became a
Restricted Subsidiary or was merged or consolidated with or into the
Company or any Restricted
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Subsidiary, in each case in a Purchase, and since the beginning of such
period such Person shall have Discharged any Indebtedness or made any Sale
or Purchase that would have required an adjustment pursuant to clause (2),
(3) or (4) above if made by the Company or a Restricted Subsidiary during
such period, Consolidated Cash Flow and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto as
if such Discharge, Sale or Purchase occurred on the first day of such
period.
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 12 months). If any
Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a
fixed or floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be computed by applying, at the
option of the Company, either a fixed or floating rate. If any Indebtedness that
is being given pro forma effect was incurred under a revolving credit facility,
the interest expense on such Indebtedness shall be computed based upon the
average daily balance of such Indebtedness during the applicable period (being
the relevant four-quarter period, or, if shorter, the portion thereof beginning
on the date such facility was first drawn upon). In making any calculation of
the Consolidated Coverage Ratio for any period prior to the date of the closing
of the Acquisition, the Acquisition shall be deemed to have taken place on the
first day of such period.
"Consolidated Interest Expense" means, with respect to any period,
the sum (without duplication) of (i) the interest expense of the Company and its
Restricted Subsidiaries for such period, plus (ii) all cash dividends paid
during such period by the Company and its Restricted Subsidiaries with respect
to any Disqualified Stock (other than to the Company or a Restricted
Subsidiary), and minus (iii) to the extent otherwise included in Consolidated
Interest Expense, amortization or write-off of financing costs, in each case
under clauses (i) through (iii) as determined on a consolidated basis in
accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any period, the net
income (or loss) of the Company and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied,
adjusted by excluding, to the extent included in calculating such net income (or
loss), without duplication, (i) any extraordinary gain or loss as recorded on
the statement of operations in accordance with GAAP, (ii) the portion of net
income (or loss) of the Company and its Restricted Subsidiaries allocable to the
Company's equity in the net income (or loss) of any unconsolidated Person or
Unrestricted Subsidiary, except (in the case of such net income) to the extent
of the amount of
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dividends or distributions actually paid or made to the Company or any of its
Restricted Subsidiaries by such other Person during such period, (iii) net
income (or loss) of any Person combined with the Company or any of its
Restricted Subsidiaries on a "pooling of interests" basis attributable to any
period prior to the date of combination, (iv) any gain or loss realized upon any
Asset Sale (other than sales of leases of customer-leased equipment) and any
gain or loss realized upon the sale or other disposition of any Capital Stock of
any Person, (v) the net income of any Restricted Subsidiary if the declaration
of dividends or similar distributions by that Restricted Subsidiary of that net
income to the Company is at the time restricted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation (other than pursuant to
any statute, rule or governmental regulation that permits such dividends or
similar distributions payments after the passage of time, not to exceed 120
days, or after the filing or providing of notice with respect to such dividends
or similar distributions) applicable to that Restricted Subsidiary or its
stockholders (other than pursuant to the Securities or the Indenture), except to
the extent that any dividend or distribution was or could have been made by the
Restricted Subsidiary to the Company or another Restricted Subsidiary during
such period in compliance with such restrictions, (vi) non-cash, nonrecurring
charges (excluding any non-cash charge which requires an accrual or reserve for
cash charges for any future period), (vii) any nonrecurring charges related to
the Acquisition or any acquisition by the Company or any Restricted Subsidiary
after the Issue Date and (viii) all deferred financing costs written off and
premium paid in connection to any early extinguishment of Indebtedness.
"Consolidated Net Tangible Assets" of the Company means the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any indebtedness for money borrowed having a maturity of less than 12
months from the date of the most recent consolidated balance sheet of the
Company but which by its terms is renewable or extendable beyond 12 months from
such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and computed in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee in the
Borough of Manhattan, The City of New York at which at any particular time its
corporate trust business shall be administered, which office on the Issue Date
is located at 14 Wall Street, 8th Floor, NY, NY 10005.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coulter" means Coulter Corporation, a Delaware corporation.
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"Covenant Defeasance" has the meaning specified in Section 1203.
"Credit Agreement" means the credit agreement dated as of October
31, 1997, among the Company, the banks and other financial institutions party
thereto from time to time, and Citicorp USA, Inc., as agent, Citicorp
Securities, Inc. as arranger, and Merrill Lynch & Co., as syndication agent, as
such agreement may be amended, supplemented, waived or otherwise modified from
time to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agents and lenders or other agents and lenders or otherwise,
and whether provided under the original Credit Agreement or otherwise).
"Credit Facility" means the collective reference to the Credit
Agreement, any notes and letters of credit issued pursuant thereto and any
guarantees, security agreements, pledges, mortgages, letter of credit
applications and other collateral documents, and other instruments and
documents, executed and delivered pursuant to or in connection with any of the
foregoing, in each case as the same may be amended, supplemented, waived or
otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased or extended from time to time (whether in
whole or in part, whether with the original agent and lenders or other agents
and lenders or otherwise, and whether provided under the original Credit
Agreement or otherwise).
"Currency Hedging Arrangements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
foreign exchange contracts, currency swap agreements or other similar agreements
or arrangements designed to protect against the fluctuations in currency values.
"Default" means any event that is, or after the giving of notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Disqualified Stock" means (i) any Preferred Stock of any Restricted
Subsidiary and (ii) 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 upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable
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at the option of the holder thereof (other than upon a change of control of the
Company in circumstances where the holders of the Securities would have similar
rights), in whole or in part on or prior to the stated maturity of any
Securities.
"Dollars" and "$" means lawful money of the United States of
America.
"Equipment Held for Resale" means instrument systems and related
accessories and components manufactured or assembled by the Company that are
owned and held for placement in facilities of the Company's customers.
"Equity Interest" in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including limited liability company interests, in such Person.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Exchange Offer" means the offer by the Company to the Holders of
the Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in first recital of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that (i) such Exchange
Securities shall not contain terms with respect to transfer restrictions and
shall be registered under the Securities Act, and (ii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
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"Exchange 2003 Notes" and "Exchange 2008 Notes" have the respective
meanings specified in the first recital to this Indenture.
"Fair Market Value" means, with respect to any asset or property,
the sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that is (i) not organized under the laws of the United States of America or any
state thereof or the District of Columbia and (ii) conducts its principal
operations outside the United States.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Issue Date, including those set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as approved by a significant segment of the
United States accounting profession.
"Global Securities" has the meaning set forth in Section 201.
"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 such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such 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 (ii) 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 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.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"incur" has the meaning specified in Section 1010.
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"Indebtedness" means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such Person
for borrowed money or which is evidenced by a note, bond, debenture or similar
instrument, (ii) all obligations of such Person to pay the deferred or unpaid
purchase price of property or services, which purchase price is due more than
one year after the date of placing such property in service or taking delivery
and title thereto or the completion of such service, (iii) all Capital Lease
Obligations of such Person, (iv) all obligations of such Person in respect of
letters of credit or bankers' acceptances issued or created for the account of
such Person, (v) to the extent not otherwise included in this definition, all
net obligations of such Person under all Interest Rate Agreements, Currency
Agreement Obligations or Commodity Price Protection Agreements of such Person,
(vi) all liabilities of others of the kind described in the preceding clause
(i), (ii) or (iii) secured by any Lien on any property owned by such Person even
if such Person has not assumed or otherwise become liable for the payment
thereof, to the extent of the value of the property subject to such Lien, (vii)
all Disqualified Stock issued by such Person, and (viii) to the extent not
otherwise included, any Guarantee by such Person of any other Person's
indebtedness or other obligations described in clauses (i) through (vii) above.
"Indebtedness" of the Company and its Restricted Subsidiaries shall not include
(i) current trade payables incurred in the ordinary course of business and
payable in accordance with customary practices and (ii) non-interest bearing
installment obligations and accrued liabilities incurred in the ordinary course
of business which are not more than 90 days past due.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of each series
of the Securities.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities, to pay principal of,
premium, if any, and interest on the Securities when due and payable, whether at
maturity, by acceleration, call for redemption or repurchase or otherwise, and
all other amounts due or to become due under or in connection with this
Indenture, the Securities or the Note Guarantees and the performance of all
other obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 607 hereof) and the Holders of the
Securities of either series under this Indenture, the Securities and the Note
Guarantees, according to the terms thereof.
"Initial Securities" has the meaning specified in the recitals to
this Indenture.
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"Initial 2003 Notes" and "Initial 2008 Notes" have the respective
meanings specified in the first recital to this Indenture.
"Interest Payment Date," when used with respect to any Security,
means the date specified in such Security as the fixed date on which any
installment of interest is due and payable.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment" in any Person means any direct or indirect advance,
loan or other extension of credit (including, without limitation, by way of
Guarantee or similar arrangement, but excluding advances, loans and other
extension of credit to customers, directors, officers and employees in the
ordinary course of business) to, capital contribution (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) to, or any purchase or acquisition of Capital
Stock, bonds, securities or other similar instruments issued by, such Person and
shall include the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary. For purposes of the definition of "Unrestricted Subsidiary" and
Section 1011, (i) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of the
assets (net of liabilities) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary and shall exclude
the Fair Market Value of the assets (net of liabilities) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of
such transfer, in each case as determined by the Board of Directors in good
faith.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Investment Grade" means a rating in one of the four highest
categories (without regard to subcategories within such rating categories) by a
Rating Agency.
"Investment Grade Rating Date" means the first date on which the
Securities are rated Investment Grade by two Rating Agencies.
"Issue Date" means the date on which Securities are first issued
under the Indenture.
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"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Net Proceeds" from an Asset Sale 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, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Sale or received
in any other noncash form) therefrom, in each case net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred,
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 Sale, (ii)
all payments made on any Indebtedness that is secured by any assets subject to
such Asset Sale, in accordance with the terms of any Lien upon such assets,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Sale, or to any other Person (other than the Company or a Restricted Subsidiary)
owning a beneficial interest in the assets disposed of in such Asset Sale and
(iv) appropriate amounts to be provided as a reserve, in accordance with GAAP,
against any liabilities associated with the assets disposed of in such Asset
Sale and retained by the Company or any Restricted Subsidiary after such Asset
Sale.
"Note Guarantee" means each Guarantee of the Securities by Coulter,
Beckman Instruments (Naguabo), Inc., Hybritech Incorporated, SmithKline
Diagnostics, Inc. and Coulter Leasing Corporation pursuant to this Indenture,
and any Guarantee of the Securities that may from time to time be executed and
delivered pursuant to this Indenture.
"Note Guarantor" means each of Coulter, Beckman Instruments
(Naguabo), Inc., Hybritech Incorporated, SmithKline Diagnostics, Inc. and
Coulter Leasing Corporation and any Restricted Subsidiary that has issued a Note
Guarantee.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
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"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Offshore Global Security" has the meaning set forth in Section 201.
"Offshore Physical Security" has the meaning set forth in
Section 201.
"Offshore Security Exchange Date" has the meaning set forth in
Section 203.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities heretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1202; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Indebtedness" means:
(i) Indebtedness incurred by the Company pursuant to the Credit
Facility in an aggregate principal amount not to exceed $1,100.0 million
outstanding at any time, minus the aggregate amount of all scheduled
repayments of principal, and all mandatory prepayments of principal with
Net Proceeds from Asset Sales, and plus (in the case of any refinancing
thereof) the aggregate amount of fees, underwriting discounts, premiums
and other costs and expenses incurred in connection with such refinancing;
provided that, so long as no term loan Indebtedness remains outstanding
under the Credit Facility, the Company shall be permitted to incur
revolving credit Indebtedness thereunder in an aggregate principal amount
not to exceed $800 million outstanding at any time;
(ii) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount outstanding at any time not exceeding, as to all such Foreign
Subsidiaries, the greater of (a) $75 million and (b) an amount equal to
the sum of (x) 80% of the combined book value of the net account
receivables owned by Foreign Subsidiaries that are shown on the
consolidated balance sheet of the Company as of the end of the most
recently ended fiscal quarter for which financial statements of the
Company are available plus (y) 50% of the combined book value of the
inventory owned by Foreign Subsidiaries that is shown on such balance
sheet, all as calculated on a combined basis and in accordance with GAAP;
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(iii) Indebtedness represented by the Initial Securities or the
Exchange Securities, any Guarantees in respect thereof, and any
Indebtedness arising by reason of any Lien granted to secure any of the
foregoing Indebtedness;
(iv) Indebtedness owed by any Restricted Subsidiary to the Company
or to another Restricted Subsidiary, or owed by the Company to any
Restricted Subsidiary; provided, however, that any such Indebtedness shall
be at all times held by a Person that is either the Company or a
Restricted Subsidiary of the Company; provided, further, however, that
upon either (a) the transfer or other disposition of any such Indebtedness
to a Person other than the Company or another Restricted Subsidiary or (b)
the sale, lease, transfer or other disposition of shares of Capital Stock
(including by consolidation or merger) of any such Restricted Subsidiary
to a Person other than the Company or another Restricted Subsidiary, the
incurrence of such Indebtedness shall be deemed to be an incurrence that
is not permitted by this clause (iv);
(v) Indebtedness of the Company or any Restricted Subsidiary in the
form of Purchase Money Obligations or Capital Lease Obligations, in an
aggregate amount not in excess of $30 million outstanding at any time;
(vi) Indebtedness of the Company or any Restricted Subsidiary
arising in the ordinary course of business (a) pursuant to Interest Rate
Agreements designed to protect the Company or any Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company
or any Subsidiary as long as such obligations do not exceed the aggregate
principal amount of such Indebtedness then outstanding, (b) under any
Currency Hedging Arrangements, which if related to Indebtedness do not
increase the amount of such Indebtedness other than as a result of foreign
exchange fluctuations, or (c) under any Commodity Price Protection
Agreements, which if related to Indebtedness do not increase the amount of
such Indebtedness other than as a result of foreign exchange fluctuations;
(vii) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring of a check, draft or similar instrument of such
Person drawn against insufficient funds, provided that such Indebtedness
is extinguished within five Business Days of its incurrence;
(viii) Indebtedness of the Company or any Restricted Subsidiary
consisting of Guarantees, indemnities, or obligations in respect of
purchase price adjustments, in connection with the acquisition or
disposition of assets;
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(ix) Indebtedness of the Company or any Restricted Subsidiary in
respect of (a) judgment, performance, surety and other bonds provided by
such Person with respect to obligations of such Person in the ordinary
course of business, (b) letters of credit securing obligations incurred in
the ordinary course of business or (c) other letters of credit in an
amount not to exceed $5 million in the aggregate outstanding at any time;
(x) Indebtedness of the Company or any Restricted Subsidiary
consisting of Guarantees in respect of loans or advances made to officers
or employees of the Company or any Restricted Subsidiary, or Guarantees
otherwise made on their behalf, (a) in respect of travel, entertainment
and moving related expenses incurred in the ordinary course of business,
or (b) in the ordinary course of business not exceeding $500,000 in the
aggregate outstanding at any time;
(xi) Any Refinancing Indebtedness incurred in respect of any
Indebtedness described in clauses (i), (ii), (iii), (xi), (xii) or (xiii)
of this definition of "Permitted Indebtedness," any Capital Lease
Obligations described in clause (v) of this definition of "Permitted
Indebtedness" or any Indebtedness permitted to be incurred pursuant to the
first sentence of Section 1010;
(xii) Indebtedness of the Company or any Restricted Subsidiary that
is outstanding on the Issue Date;
(xiii) Acquired Debt of any Restricted Subsidiary, provided that at
the time of the incurrence thereof and after giving effect thereto on a
pro forma basis, (x) no De fault or Event of Default will have occurred
and be continuing or would result therefrom and (y) the Company could
incur at least $1.00 of additional Indebtedness pursuant to the first
sentence of Section 1010;
(xiv) Indebtedness of any Restricted Subsidiary in an aggregate
principal amount not exceeding $10 million outstanding at any time, as to
all such Restricted Subsidiaries that incur Indebtedness pursuant to this
clause (xiv);
(xv) Guarantees by the Company of any Indebtedness of any Restricted
Subsidiary incurred by such Subsidiary in compliance with Section 1010,
provided that if such Indebtedness is subordinated in right of payment to
any other Indebtedness, such Guarantee shall be subordinated in right of
payment to the Securities at least to the same extent as such Indebtedness
is so subordinated to such other Indebtedness;
(xvi) any Guarantee by any Note Guarantor of Bank Indebtedness of
the Company incurred pursuant to clause (i), (xi) or (xvii) of this
definition of "Permitted
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Indebtedness" or the first sentence of Section 1010, provided that (a) if
such Indebtedness is subordinated in right of payment to any other
Indebtedness, such Guarantee shall be subordinated in right of payment to
the Securities at least to the same extent as such Indebtedness is so
subordinated to such other Indebtedness, and (b) upon such Person no
longer being a Note Guarantor, there shall be deemed to have occurred a
new incurrence of such Guarantee not permitted by this clause (xvi); and
(xvii) Indebtedness of the Company in addition to that described in
clauses (i), (iii) through (xii) and (xv) above, and any renewals,
extensions, substitutions, refinancings or replacements of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (xvii) does not exceed $50
million outstanding at any time.
For purposes of determining compliance with any such
Dollar-denominated restriction on the incurrence of Indebtedness denominated in
a foreign currency, the Dollar-equivalent principal amount of such Indebtedness
incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was incurred, in the
case of term debt, or first committed, in the case of revolving credit debt,
provided that (x) the Dollar-equivalent principal amount of any such
Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (y) if such
Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced, and (z) the
Dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and incurred pursuant to the Credit Facility shall be calculated based
on the relevant currency exchange rate in effect on, at the Company's option,
(i) the Issue Date, (ii) any date on which any of the respective commitments
under the Credit Facility shall be reallocated between or among facilities or
subfacilities thereunder, or on which such rate is otherwise calculated for any
purpose thereunder, or (iii) the date of such incurrence. The principal amount
of any Indebtedness incurred to refinance other Indebtedness, if incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness incurred pursuant to and in
compliance with, Section 1010, (i) any other obligation of the obligor on such
Indebtedness (or of any other Person that
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could have incurred such Indebtedness as the obligor thereon in compliance with
such covenant) arising under any Guarantee, Lien or letter of credit supporting
such Indebtedness shall be disregarded to the extent that such Guarantee, Lien
or letter of credit secures the principal amount of such Indebtedness; (ii) in
the event that Indebtedness is entitled to be incurred pursuant to the first
paragraph of such covenant or meets the criteria of more than one of the types
of Indebtedness described in the definition of "Permitted Indebtedness", the
Company, in its sole discretion, shall classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
such clauses; and (iii) the amount of Indebtedness issued at a price that is
less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in accordance with GAAP.
Indebtedness of any Person that is not a Restricted Subsidiary,
which Indebtedness is outstanding at the time such Person becomes a Restricted
Subsidiary or is merged with or into or consolidated with the Company or a
Restricted Subsidiary, shall be deemed to have been incurred at the time such
Person becomes a Restricted Subsidiary or is merged with or into or consolidated
with the Company or a Restricted Subsidiary, and Indebtedness which is assumed
at the time of the acquisition of any asset shall be deemed to have been
incurred at the time of such acquisition. Accrual of interest, the accretion of
accreted value of principal, and the payment of interest in the form of
additional Indebtedness having the same terms as the original Indebtedness on
which such payment is made (which payment is made pursuant to the terms of such
original Indebtedness as initially issued), will not be deemed an incurrence of
Indebtedness for purposes of Section 1010.
"Permitted Investments" means (i) any Investment in the Company or
any Restricted Subsidiary; (ii) any Investment in Cash Equivalents; (iii) any
Investment in a Person if, as a result of such Investment, (a) such Person
becomes a Restricted Subsidiary, or (b) such Person either (1) is merged,
consolidated or amalgamated with or into the Company or one of its Restricted
Subsidiaries and the Company or such Restricted Subsidiary is the surviving
Person, or (2) transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or one of its Restricted Subsidiaries; (iv)
Investments in accounts and notes receivable acquired in the ordinary course of
business; (v) any securities or other Investments received in connection with
any sale or other disposition of property or assets (including Equity
Interests); (vi) obligations under any Interest Rate Agreement, Currency Hedging
Arrangement or Commodity Price Protection Agreement permitted pursuant to
Section 1010; (vii) securities or other Investments received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement
of any Lien, or in satisfaction of judgments, including in connection with any
bankruptcy proceeding or other reorganization of another Person; (viii)
Investments in existence or made pursuant to legally binding written commitments
in existence on the Issue Date; (ix) pledges or deposits with respect to leases
or utilities, provided to third
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parties in the ordinary course of business; (x) bonds secured by assets leased
to and operated by the Company or any Restricted Subsidiary that were issued in
connection with the financing of such assets so long as the Company or any
Restricted Subsidiary may obtain title to such assets at any time by paying a
nominal fee, canceling such bonds and terminating the transaction; (xi)
Investments in a joint venture or similar entity that is not a Restricted
Subsidiary, made in the ordinary course of business; (xii) Investments in
customers or suppliers, not to exceed $10 million in the aggregate outstanding
at any time; and (xiii) Investments in an amount not exceeding $50 million in
the aggregate outstanding at any time.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" has the meaning set forth in Section 201.
"Place of Payment" has the meaning specified in Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Capital Stock of any other class of such
Person.
"Principal Property" means any real property of the Company or any
of its Subsidiaries, and any equipment located at or comprising a part of any
such property, having a net book value, as of the date of determination, in
excess of the greater of $50 million and 10% of Consolidated Net Tangible Assets
of the Company; provided, however, that Principal Property shall not include
Equipment Held for Resale.
"Private Placement Legend" has the meaning set forth in Section 203.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company or the Restricted Subsidiaries,
and any additions and accessions thereto, which are purchased or constructed by
the Company or any Restricted Subsidiary at any time after the Issue Date;
provided that (i) any security agreement or
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conditional sales or other title retention contract pursuant to which the Lien
on such assets is created (collectively a "Security Agreement") shall be entered
into within 180 days after the purchase or substantial completion of the
construction of such assets and shall at all times be confined solely to the
assets so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom, (ii) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except in connection with
the purchase of additions and accessions thereto and except in respect of fees
and other obligations in respect of such Indebtedness and (iii) (a) the
aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset basis in the case of any additions and accessions)
shall not at the time such Security Agreement is entered into exceed 100% of the
purchase price to the Company or any Restricted Subsidiary of the assets subject
thereto or (b) the Indebtedness secured thereby shall be with recourse solely to
the assets so purchased or acquired, any additions and accessions thereto and
any proceeds therefrom.
"Rating Agency" means each of Standard & Poor's Ratings Services,
Duff & Phelps Credit Rating Co. and Moody's Investors Service, Inc. (or, in any
case, if such Person ceases to rate the Securities for reasons outside the
control of the Company, any other "nationally recognized statistical rating
organization" (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act) selected by the Company as a replacement Rating Agency).
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of Merrill Lynch & Co.,
Salomon Brothers Inc, Citicorp Securities, Inc., Credit Suisse First Boston
Corporation, Morgan Stanley & Co. Incorporated, BancAmerica Robertson Stephens,
First Chicago Capital Markets, Inc. and Goldman, Sachs & Co. and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Refinancing Indebtedness" means any Indebtedness incurred in
connection with or given in exchange for the renewal, extension, substitution,
refunding, defeasance, refinancing, repayment or replacement (a "refinancing")
of any Indebtedness described in clauses (i), (ii), (iii), (xi), (xii) or (xiii)
of the definition of "Permitted Indebtedness," any Capital Lease Obligations
described in clause (v) of the definition of "Permitted Indebtedness"
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or any Indebtedness permitted to be incurred pursuant to the first sentence of
Section 1010; provided, however, that (a) the principal amount of such
Refinancing Indebtedness shall not exceed the principal amount (or accrued
amount, if less) of the Indebtedness so renewed, extended, substituted,
refunded, defeased, refinanced or replaced ("refinanced"), plus the reasonable
fees, underwriting discounts, premiums and other costs and expenses incurred in
connection therewith), (b) such Refinancing Indebtedness shall have a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being refinanced; (c) if the Indebtedness being
refinanced is subordinated in right of payment to any Securities, such
Refinancing Indebtedness shall be at least as subordinated in right of payment
to the Securities as the Indebtedness being refinanced; and (d) the obligor on
such Refinancing Indebtedness shall be the obligor on the Indebtedness being
refinanced, the Company, or (in the case of Indebtedness of a Foreign Subsidiary
that is being refinanced) any Foreign Subsidiary; it being understood that any
Indebtedness incurred pursuant to clauses (i), (ii) or (v) of the definition of
"Permitted Indebtedness" that is so refinanced shall be deemed to remain
outstanding for the purpose of determining compliance with any limitations or
restrictions set forth in such clauses.
"Registration Rights Agreement" means the Registration Rights
Agreement dated on or about the Issue Date among the Company and the Initial
Purchasers for the benefit of themselves and the Holders, as the same may be
amended from time to time in accordance with the terms thereof.
"Registration Statement" means any Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of either series means the date specified for
that purpose in Section 301.
"Resale Restriction Termination Date" has the meaning specified in
the Private Placement Legend set forth in Section 203.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" means (i) any dividend or other distribution
declared or paid on any Capital Stock of the Company or any of its Restricted
Subsidiaries (other than dividends or distributions payable solely in Capital
Stock (other than Disqualified Stock) of the Company or such Restricted
Subsidiary or dividends or distributions payable to the Company or any
Restricted Subsidiary (and, if the Restricted Subsidiary making such dividend or
distributions has any stockholder other than the Company or another Restricted
Subsidiary, to such stockholder on no more than a pro rata basis, measured by
value)); (ii) any payment to purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any Restricted Subsidiary (other than
any Capital Stock owned by the Company or any Restricted Subsidiary, or from all
holders of such Capital Stock of a Restricted Subsidiary on a pro rata basis);
(iii) any payment to purchase, redeem, defease or otherwise acquire or retire
for value any Indebtedness that is subordinated in right of payment to any
Securities (other than a purchase, redemption, defeasance or other acquisition
or retirement for value in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of such acquisition or retirement); or (iv) any Restricted Investment.
"Restricted Payment Amount" means the sum of:
(a) an amount equal to 50% of the Company's aggregate cumulative
Consolidated Net Income accrued on a cumulative basis from the Issue Date
(or, if such aggregate cumulative Consolidated Net Income for such period
shall be a deficit, minus 100% of such deficit), plus
(b) the aggregate amount of all net cash proceeds received since the
Issue Date by the Company (1) as capital contributions in the form of
common equity to the Company after the Issue Date, (2) from the issuance
and sale (other than to a Restricted Subsidiary) of its Capital Stock
(other than Disqualified Stock), (3) from the issuance to a Person who is
not a Subsidiary of the Company of any options, warrants or other rights
to acquire Capital Stock of the Company (in each case, exclusive of any
Disqualified Stock or any options, warrants or other rights that are
redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of any Securities) and (4) from the issuance
and sale by the Company or any Restricted Subsidiary after the Issue Date
of Disqualified Stock or debt securities that have been converted into or
exchanged for Capital Stock of the Company (other than Disqualified
Stock), plus the amount of cash received by the Company or any Restricted
Subsidiary upon such conversion or exchange, in each case to the extent
that such proceeds are not used to redeem, repurchase, retire or otherwise
acquire Capital Stock or any
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Indebtedness of the Company or any Restricted Subsidiary, pursuant to
clause (ii) or (iii) of the second paragraph of Section 1011, plus
(c) the amount of the net reduction in Investments by the Company in
Unrestricted Subsidiaries resulting from (x) the payment of cash dividends
or the repayment in cash of the principal of loans or the cash return on
any Investment, in each case to the extent received by the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries, (y) the release or
extinguishment of any Guarantee of Indebtedness of any Unrestricted
Subsidiary, and (z) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries of the Company (valued as provided in the
definition of "Investment"), such aggregate amount of the net reduction in
Investments not to exceed in the case of any Unrestricted Subsidiaries the
amount of Restricted Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary, which amount was
included in the calculation of the amount of Restricted Payments, plus
(d) to the extent that any Restricted Investment that was made after
the Issue Date is sold for cash or otherwise liquidated or repaid for
cash, the amount of cash proceeds received with respect to such Restricted
Investment, net of taxes and the cost of disposition, not to exceed the
amount of Restricted Investments made after the Issue Date.
"Restricted Subsidiary" means any Subsidiary of the Company which
owns or leases a Principal Property; provided that, prior to an Investment Grade
Rating Date, "Restricted Subsidiary" means any Subsidiary of the Company (other
than an Unrestricted Subsidiary) for all purposes other than as used in Sections
1008 and 1009.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"series," when used with respect to the Securities, means the 2003
Notes or the 2008 Notes, as applicable.
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"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
purchase 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).
"Subsidiary" of a Person means a Person more than 50% of the
outstanding voting stock or other Equity Interests of which is owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition,
"voting" stock or other Equity Interests means stock or other Equity Interests
which ordinarily has voting power for the election of directors, trustees or
similar managers, whether at all times or only so long as no senior class of
stock or other Equity Interests has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of either series shall mean the Trustee with respect
to Securities of that series.
"2003 Notes" and "2008 Notes" have the respective meanings specified
in the first recital to this Indenture.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors as provided below) and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate (a
"Designation") any Subsidiary of the Company (other
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than a Subsidiary that owns any Capital Stock of, or owns, or holds any Lien on,
any property of the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated) to be an Unrestricted
Subsidiary if: (a) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation; (b) the Company could make an
Investment (other than a Permitted Investment) at the time of such Designation
(assuming the effectiveness thereof) in an amount (the "Designation Amount")
equal to the Fair Market Value of the Capital Stock of such Subsidiary on such
date; and (c) the Company could incur $1.00 of additional Indebtedness under the
first sentence of Section 1010 at the time of such Designation (assuming the
effectiveness thereof). The Board of Directors may revoke (a "Revocation") any
Designation of a Subsidiary as an Unrestricted Subsidiary if: (a) no Default
shall have occurred and be continuing at the time of and after giving effect to
such Revocation; (b) the Company could incur $1.00 of additional Indebtedness
under the first sentence of Section 1010 at the time of such Revocation
(assuming the effectiveness thereof); and (c) all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately following such Revocation would,
if incurred at such time, have been permitted to be incurred under the
Indenture. Any Designation or Revocation must be evidenced by a Board Resolution
certifying compliance with the foregoing provisions.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
1011 for all purposes of the Indenture in the Designation Amount. The Company
shall not, and shall not permit any Restricted Subsidiary to, at any time (i)
provide a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (ii) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (iii) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except
to the extent permitted under Section 1011.
"U.S. Global Security" has the meaning set forth in Section 201.
"U.S. Government Obligation" has the meaning specified in
Section 1204.
"U.S. Physical Security" has the meaning set forth in Section 201.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
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"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Note
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or any Note Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or any Note Guarantor,
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying
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that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company or any Note Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of either series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date (or their duly designed
proxies), and no other Holders, shall be entitled to take the relevant action,
whether or not such Persons remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
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The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of either series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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SECTION 105. Notices, Etc., to Trustee, Company and Note Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Note
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Services Division, or
(2) the Company or any Note Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first- class postage
prepaid, to the Company or such Note Guarantor addressed to it at the
address of the Company's principal office specified in the first paragraph
of this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under the Trust Indenture Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
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Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in
this Indenture by each of the Company and the Note Guarantors shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause. In case any provision in this
Indenture, in the Securities or in any Note Guarantee shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture, in
the Securities or in any Note Guarantee, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law. THIS INDENTURE, THE SECURITIES AND THE
NOTE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
SECTION 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. The Securities of each series and the
Trustee's certificate of authentication relating thereto shall be in
substantially the forms set forth, or referenced, in this Article and Exhibit A
annexed hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the Securities annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Note Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Initial Securities offered and sold in reliance on Rule 144A under
the Securities Act may be issued in the form of one or more permanent global
Securities in substantially the form set forth in Exhibit A and contain each of
the legends set forth in Section 203 (the "U.S. Global Security"), deposited
with the Trustee, as custodian for the Depositary or its nominee, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Initial Securities offered and sold in offshore transactions in
reliance on Regulation S under the Securities Act shall be issued in the form of
a single permanent global Security in substantially the form set forth in
Exhibit A (the "Offshore Global Security") deposited with the Trustee, as
custodian for the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Offshore Global Security may from time to time be increased or
decreased by adjustments made in the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided. Initial Securities
issued pursuant to Section 305 in
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exchange for or upon transfer of beneficial interests in the U.S. Global
Security or the Offshore Global Security (x) shall be in the form of permanent
certificated Securities substantially in the form set forth in Exhibit A and
shall contain the Private Placement Legend as set forth in Section 203 (the
"U.S. Physical Securities") or (y), on or after the Offshore Security Exchange
Date and subject to Section 203, shall be in the form of permanent certificated
Securities substantially in the form set forth in Exhibit A (the "Offshore
Physical Securities"), respectively, as hereinafter provided.
The Offshore Physical Securities and the U.S. Physical Securities
are sometimes collectively herein referred to as the "Physical Securities". The
U.S. Global Security and the Offshore Global Security are sometimes collectively
referred to as the "Global Securities".
Exchange Securities shall be issued substantially in the form set
forth in Exhibit A.
SECTION 202. Form of Trustee's Certificate of Authentication. The
Trustee's certificates of authentication shall be in substantially the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By
-------------------------------------
Authorized Officer
Dated:
SECTION 203. Restrictive and Global Security Legends. Unless and
until (a) (i) an Initial Security is exchanged for an Exchange Security in an
Exchange Offer pursuant to an effective Exchange Offer Registration Statement or
(ii) an Initial Security is sold pursuant to an effective Shelf Registration
Statement, in each case pursuant to the Registration Rights Agreement, or (b)
the Resale Restriction Termination Date as herein provided, (A) each U.S. Global
Security and U.S. Physical Security shall bear the following legend set forth
below (the "Private Placement Legend") on the face thereof and (B) the Offshore
Global Security and Offshore Physical Securities shall bear the Private
Placement Legend on the face thereof until
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at least 41 days after the date hereof (the "Offshore Security Exchange Date")
and receipt by the Company and the Trustee of a certificate substantially in the
form provided in Exhibit C:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY 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, REGISTRATION AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
("RULE 144A")) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION
TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A INSIDE THE UNITED STATES, 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) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS
(a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
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DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED STATES,"
"OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Each Global Security, whether or not an Initial Security, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount; Series; Terms. The titles of the Initial 2003
Notes and the Exchange 2003 Notes shall be the "7.10% Senior Notes due 2003" and
the "7.10% Senior Notes due 2003, Series B", respectively. The titles of the
Initial 2008 Notes and the Exchange 2008 Notes shall be the "7.45% Senior Notes
due 2008" and the "7.45% Senior Notes due 2008, Series B", respectively. The
aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 304, 305, 306, 906 or 1107) shall be limited
to $160,000,000 in the case of the 2003 Notes and $240,000,000 in the case of
the 2008 Notes.
The final Stated Maturity of the 2003 Notes shall be March 4, 2003,
and the final Stated Maturity of the 2008 Notes shall be March 4, 2008. The 2003
Notes shall bear interest at the rate of 7.10% per annum, and the 2008 Notes
shall bear interest at the rate of 7.45% per annum, in each case from March 4,
1998 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as further provided in the form of Security annexed
hereto as Exhibit A. The Interest Payment Dates on which such interest shall be
payable shall be March 4 and September 4 of each year, and the Regular Record
Dates for any interest payable on each such Interest Payment Date shall be the
immediately preceding February 19 and August 19, respectively.
The principal of, and premium, if any, and interest on the
Securities shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, provided,
however, that at the option of the Company payment of interest on a Security may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Upon a Change of Control Triggering Event, each Holder of Securities
will have the right to require that Company purchase all or any part (equal to
$1,000 or an integral multiple thereof) of the Securities held by such Holder,
as further provided in Section 1012.
The Securities will be redeemable at the option of the Company as
provided in Article Eleven. The Securities will not be entitled to the benefit
of a sinking fund.
The Securities shall be substantially in the form of Exhibit A to
this Indenture, as further provided in Article Two.
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SECTION 302. Denominations. The Securities of each series shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
On Company Order, the Trustee shall authenticate for original issue
Initial 2003 Notes and Initial 2008 Notes in an aggregate principal amount not
to exceed $160,000,000 in the case of the 2003 Notes and $240,000,000 in the
case of the 2008 Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange 2003 Notes and Exchange 2008 Notes in an aggregate
principal amount not to exceed $160,000,000 in the case of the 2003 Notes and
$240,000,000 in the case of the 2008 Notes; provided that such Exchange
Securities shall be issuable only upon the valid surrender for cancellation of
Initial Securities of a like aggregate principal amount in accordance with an
Exchange Offer pursuant to the Registration Rights Agreement. In each case, the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Securities. Such Company Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of 2003 Notes
outstanding at any time shall not exceed $160,000,000. The aggregate principal
amount of 2008 Notes outstanding at any time shall not exceed $240,000,000.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
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SECTION 304. Temporary Securities. Pending the preparation of
definitive Securities of either series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of either series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of either series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of either series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of either series may be
exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute,
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and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of either series are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer of or exchange
any Securities of that series (or of that series and specified tenor, as the
case may be) during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 1103 and ending at the close of business on the day
of such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
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of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of either series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the Place of
Payment, provided, however, that at the option of the Company payment of
interest on a Security may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of either series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its selection in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The
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Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to
each Holder of Securities of such series in the manner set forth in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of either series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever,
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whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 310. Computation of Interest. Interest on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 311. Book-Entry Provisions for Global Securities. (a) Each
Global Security initially shall (i) be registered in the name of the Depositary
for such Global Securities or the nominee of such Depositary, (ii) be delivered
to the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security,
and the Depositary may be treated by the Company, the Note Guarantors, the
Trustee and any agent of the Company, the Note Guarantors or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Note Guarantors, the Trustee or any agent of the Company, the Note Guarantors 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 governing the
exercise of the rights of a beneficial owner of any Security. The registered
holder of a Global Security 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 Securities.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective
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nominees. Interests of beneficial owners in a Global Security may be transferred
or exchanged for Physical Securities in accordance with the applicable rules and
procedures of the Depositary and the provisions of Sections 305 and 312. In
addition, U.S. Physical Securities or Offshore Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the U.S. Global Security or the Offshore Global Security, respectively, if
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the applicable Global Security or the Depositary
ceases to be a "Clearing Agency" registered under the Exchange Act and a
successor depositary is not appointed by the Company within 90 days, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of Physical Securities under the Indenture or (iii) an Event of
Default has occurred and is continuing and the Security Registrar has received a
written request from the Depositary to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners for Physical
Securities pursuant to paragraph (b), the Security Registrar shall record on its
books and records the date and a decrease in the principal amount of such Global
Security in an amount equal to the beneficial interest in the Global Security
being transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities of like tenor and
principal amount of authorized denominations.
(d) In connection with a transfer of an entire Global Security to
beneficial owners pursuant to paragraph (b), the applicable Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the applicable Global Security, an equal aggregate principal amount
at maturity of U.S. Physical Securities (in the case of the U.S. Global
Security) or Offshore Physical Securities (in the case of the Offshore Global
Security), as the case may be, of authorized denominations.
(e) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(f) Any Physical Security delivered in exchange for an interest in a
Global Security pursuant to paragraph (b) shall, unless such exchange is made on
or after the Resale
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Restriction Termination Date and except as otherwise provided in Section 203 and
Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Security is exchanged for an
Exchange Security in the Exchange Offer pursuant to an effective Registration
Statement or (ii) an Initial Security is sold pursuant to an effective
Registration Statement, in each case, pursuant to the Registration Rights
Agreement, the following provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to all
transfers involving any Physical Security and any beneficial interest in any
Global Security.
(b) Certain Definitions. As used in this Section 312 only,
"delivery" of a certificate by a transferee or transferor means the delivery to
the Security Registrar by such transferee or transferor of the applicable
certificate duly completed; "holding" includes both possession of a Physical
Security and ownership of a beneficial interest in a Global Security, as the
context requires; "transferring" a Global Security means transferring that
portion of the principal amount of the transferor's beneficial interest therein
that the transferor has notified the Security Registrar that it has agreed to
transfer; and "transferring" a Physical Security means transferring that portion
of the principal amount thereof that the transferor has notified the Security
Registrar that it has agreed to transfer.
As used in this Indenture, "Accredited Investor Certificate" means a
certificate substantially in the form set forth in Exhibit D; "Regulation S
Certificate" means a certificate substantially in the form set forth in Exhibit
E; "Rule 144A Certificate" means a certificate substantially in the form set
forth in Exhibit F; and "Non-Registration Opinion and Supporting Evidence" means
a written opinion of counsel reasonably acceptable to the Company to the effect
that, and such other certification or information as the Company may reasonably
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) Deemed Delivery of a Rule 144A Certificate in Certain
Circumstances. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Security,
the transferor checks the box provided on the Physical Security to that effect)
and (ii) the transferee advises the Company and the Trustee in writing that (x)
it and, if applicable, each account for which it is acting in connection with
the relevant transfer, is a qualified institutional buyer within the meaning of
Rule 144A, (y) it is aware that the transfer
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of Securities to it is being made in reliance on the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A, and (z)
prior to the proposed date of transfer it has been given the opportunity to
obtain from the Company the information referred to in Rule 144A(d)(4), and has
either declined such opportunity or has received such information (or, in the
case of a transfer of a Physical Security, the transferee signs the
certification provided on the Physical Security to that effect); or (B) the
transferor holds the U.S. Global Security and is transferring to a transferee
that will take delivery in the form of the U.S. Global Security.
(d) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Security
Exchange Date, and the proposed transferor holds:
(A) a U.S. Physical Security which is surrendered to the Security
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical
Security, then the Security Registrar shall (x) register such
transfer in the name of such transferee and record the date thereof
in its books and records, (y) cancel such surrendered U.S. Physical
Security and (z) deliver a new U.S. Physical Security to such
transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred of
such surrendered U.S. Physical Security;
(ii) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Security, then the Security Registrar shall (x) cancel such
surrendered U.S. Physical Security, (y) record an increase in the
principal amount of the U.S. Global Security equal to the principal
amount being transferred of such surrendered U.S. Physical Security
and (z) notify the Depositary in accordance with the procedures of
the Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the
Offshore Global Security, then the Security
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Registrar shall (x) cancel such surrendered U.S. Physical Security,
(y) record an increase in the principal amount of the Offshore
Global Security equal to the principal amount being transferred of
such surrendered U.S. Physical Security and (z) notify the
Depositary in accordance with the procedures of the Depositary that
it approves of such transfer.
In any of the cases described in this Section 312(d)(1)(A), the
Security Registrar shall deliver to the transferor a new U.S. Physical
Security in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Security, as applicable.
(B) the U.S. Global Security, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical
Security, then the Security Registrar shall (w) register such
transfer in the name of such transferee and record the date thereof
in its books and records, (x) record a decrease in the principal
amount of the U.S. Global Security in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
U.S. Physical Security to such transferee duly registered in the
name of such transferee in principal amount equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Security, then the transfer shall be effected in accordance
with the procedures of the Depositary therefor; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the
Offshore Global Security, then the Security Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Security in an amount equal to
the beneficial interest therein being transferred, (y) record an
increase in the
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principal amount of the Offshore Global Security equal to the amount
of such decrease and (z) notify the Depositary in accordance with
the procedures of the Depositary that it approves of such transfer.
(C) the Offshore Global Security, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical
Security, then the Security Registrar shall (w) register such
transfer in the name of such transferee and record the date thereof
in its books and records, (x) record a decrease in the principal
amount of the Offshore Global Security in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
U.S. Physical Security to such transferee duly registered in the
name of such transferee in principal amount equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Security, then the Security Registrar shall (x) record a
decrease in the principal amount of the Offshore Global Security in
an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of the
U.S. Global Security equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the
Offshore Global Security, then the transfer shall be effected in
accordance with the procedures of the Depositary therefor; provided,
however, that until the Offshore Security Exchange Date occurs,
beneficial interests in the Offshore Global Security may be held
only in or through accounts maintained at the Depositary by
Euroclear or Cedel (or by Agent Members acting for the account
thereof), and no person shall be entitled to effect any transfer or
exchange that would result in any such interest being held otherwise
than in or through such an account.
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2. If the proposed transfer occurs on or after the Offshore Security
Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Security which is surrendered to the Security
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical
Security, then the procedures set forth in Section 312(d)(1)(A)(i)
shall apply;
(ii) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Security, then the procedures set forth in Section
312(d)(1)(A)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Security
Registrar shall cancel such surrendered U.S. Physical Security and
at the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Security to such
transferee in principal amount equal to the principal amount
being transferred of such surrendered U.S. Physical Security,
or
(y) if the proposed transferee is or is acting through
an Agent Member, record an increase in the principal amount of
the Offshore Global Security equal to the principal amount
being transferred of such surrendered U.S. Physical Security
and notify the Depositary in accordance with the procedures of
the Depositary that it approves of such transfer.
In any of the cases described in this Section 312(d)(2)(A), the
Security Registrar shall deliver to the transferor a new U.S. Physical
Security in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Security, as applicable.
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(B) the U.S. Global Security, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical
Security, then the procedures set forth in Section 312(d)(1)(B)(i)
shall apply; or
(ii) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Security, then the procedures set forth in Section
312(c)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Security
Registrar shall (x) record a decrease in the principal amount of the
U.S. Global Security in an amount equal to the beneficial interest
therein being transferred, (y) notify the Depositary in accordance
with the procedures of the Depositary that it approves of such
transfer and (z) at the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Security to such
transferee in principal amount equal to the amount of such
decrease, or
(y) if the proposed transferee is or is acting through
an Agent Member, record an increase in the principal amount of
the Offshore Global Security equal to the amount of such
decrease.
(C) an Offshore Physical Security which is surrendered to the
Security Registrar, and the proposed transferee or transferor, as
applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Security, then the Security
Registrar shall (x) cancel such surrendered Offshore Physical
Security, (y) record an increase in the principal amount of the U.S.
Global Security equal to the principal amount being transferred of
such surrendered
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Offshore Physical Security and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer;
(ii) requests that the proposed transferee receive a
beneficial interest in the Offshore Global Security and the proposed
transferee is or is acting through an Agent Member, then the
Security Registrar shall (x) cancel such surrendered Offshore
Physical Security, (y) record an increase in the principal amount of
the Offshore Global Security equal to the principal amount being
transferred of such surrendered Offshore Physical Security and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer; or
(iii) does not make a request covered by Section
312(d)(2)(C)(i) or Section 312(d)(2)(C)(ii), then the Security
Registrar shall (x) register such transfer in the name of such
transferee and record the date thereof in its books and records, (y)
cancel such surrendered Offshore Physical Security and (z) deliver a
new Offshore Physical Security to such transferee duly registered in
the name of such transferee in principal amount equal to the
principal amount being transferred of such surrendered Offshore
Physical Security.
In any of the cases described in this Section 312(d)(2)(C), the
Security Registrar shall deliver to the transferor a new Offshore Physical
Security in principal amount equal to the principal amount not being
transferred of such surrendered Offshore Physical Security, as applicable.
(D) the Offshore Global Security, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (c) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Security, then the Security
Registrar shall (x) record a decrease in the principal amount of the
Offshore Global Security in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Security equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer;
(ii) requests that the proposed transferee receive a
beneficial interest in the Offshore Global Security and the proposed
transferee is or is acting through
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an Agent Member, then the transfer shall be effected in accordance
with the procedures of the Depositary therefor; or
(iii) does not make a request covered by Section
312(d)(2)(D)(i) or Section 312(d)(2)(D)(ii), then the Security
Registrar shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and records, (x)
record a decrease in the principal amount of the Offshore Global
Security in an amount equal to the beneficial interest therein being
transferred, (y) deliver a new Offshore Physical Security to such
transferee duly registered in the name of such transferee in
principal amount equal to the amount of such decrease and (z) notify
the Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
(e) Execution, Authentication and Delivery of Physical Security. In
any case in which the Security Registrar is required to deliver a Physical
Security to a transferee or transferor, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, such Physical
Security.
(f) Certain Additional Terms Applicable to Physical Securities. Any
transferee entitled to receive a Physical Security may request that the
principal amount thereof be evidenced by one or more Physical Securities in any
authorized denomination or denominations and the Security Registrar shall comply
with such request if all other transfer restrictions are satisfied.
(g) Transfers Not Covered by Section 312(d). The Security Registrar
shall effect and record, upon receipt of a written request from the Company so
to do, a transfer not otherwise permitted by Section 312(d), such recording to
be done in accordance with the otherwise applicable provisions of Section
312(d), upon the furnishing by the proposed transferor or transferee of a
Non-Registration Opinion and Supporting Evidence.
(h) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in the Indenture. The Security Registrar shall not register a transfer of any
Security unless such transfer complies with the restrictions with respect
thereto set forth in this Indenture. The Security Registrar shall not be
required to determine (but may rely upon a determination made by the Company)
the sufficiency of any such certifications, legal opinions or other information.
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(i) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the Security
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Security Registrar shall deliver only Securities
that bear the Private Placement Legend unless (i) the circumstances exist
contemplated by the fifth paragraph of Section 201 and the first paragraph of
Section 203 (with respect to an Offshore Physical Security or Offshore Global
Security) or the requested transfer, exchange or replacement is made on or after
the Resale Restriction Termination Date (with respect to any Security), (ii)
there is delivered to the Security Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Securities are exchanged for Exchange Securities pursuant to the Exchange Offer.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the provisions
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
herein with respect to Securities of either series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be
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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):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) failure to offer to repurchase or to repurchase the Securities
of that series in the event of a Change of Control in accordance in all
material respects with the provisions of Section 1012 or to perform or to
comply with any provision of Section 801; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Restricted
Subsidiary (including a default with respect to Securities other than of
that series) having an aggregate principal amount outstanding of at least
$20,000,000, or under any mortgage, indenture or instrument (including
this Indenture) under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company or
any Restricted Subsidiary having an aggregate principal amount outstanding
of at least $20,000,000, whether such indebtedness now exists or shall
hereafter be created, which default (A) shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect thereto
or (B) shall have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without, in the case of Clause (A), such indebtedness
having been discharged or without, in the case of Clause (B), such
indebtedness having been discharged or such acceleration having been
rescinded or annulled, in each such case within a period of 10 days after
there shall have been
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given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company or such Restricted
Subsidiary to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled, as the case may be, and stating
that such notice is a "Notice of Default" hereunder; provided, however,
that, subject to the provisions of Sections 601 and 602, the Trustee shall
not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (B) the Trustee shall have received written notice thereof from
the Company, from any Restricted Subsidiary, from any Holder, from the
holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Restricted Subsidiary or of any substantial part of its
respective property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator other
similar official of the Company or any Restricted Subsidiary or of any
substantial part of its respective property, or the making by it of an
assignment for the benefit of
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creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company or any Restricted Subsidiary in furtherance of any such
action; or
(8) any Note Guarantee ceases to be in full force and effect or any
Note Guarantor denies in writing that it has any liability under its Note
Guarantee (other than by reason of the termination of the Indenture or the
release of any such Note Guarantee in accordance with this Indenture).
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in Section 501(6)
or 501(7)) with respect to Securities of either series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all the Securities of that series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 501(6) or 501(7) with respect to
Securities of either series at the time Outstanding occurs, the principal amount
of all the Securities of that series shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of either series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of either series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company or any Note Guarantor (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the
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Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture, the Securities
or the Note Guarantees may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively.
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SECTION 507. Limitation on Suits. No Holder of any Security of
either series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and
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such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of either series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. The Holders of at least a
majority in principal amount of the Outstanding Securities of either series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
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(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. 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, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws. Each of the
Company and the Note Guarantors covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, 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 each of the
Company and the Note Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have
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reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, 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.
SECTION 602. Notice of Defaults. If a default occurs hereunder with
respect to Securities of either series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee. Subject to the provisions of
Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders
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pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein, in the Securities and in the Note Guarantees,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company and the Note Guarantors, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture, of the Securities or of the Note Guarantees. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of each series, or a trustee under the
Senior Indenture, dated as of May 15, 1996, between the Company and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility. There shall at
all times be one (and only one) Trustee hereunder with respect to the Securities
of each series, which may be Trustee hereunder for Securities of the other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the
Securities of either series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
either series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of either series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent Jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of either series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
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such successor Trustee may be appointed with respect to the Securities of either
or both of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of either series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of either series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of either series and each
appointment of a successor Trustee with respect to the Securities of either
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one (but not both) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
either series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which
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(1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee
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may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against Company. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 614. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to either series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to either series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By
------------------------------------
As Authenticating Agent
By
------------------------------------
Authorized Officer
Dated:
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 30 and December 31 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding June 15 or December 15, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
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A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person (a "successor Person"), and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust or other entity organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary
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at the time of such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by Section 1008, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby;
(4) if such transaction occurs prior to an Investment Grade Rating
Date, the Company could incur at least $1.00 of additional Indebtedness
pursuant to the first sentence of Section 1010, on a pro forma basis after
giving effect to such transaction;
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and
(6) each Note Guarantor shall have by supplemental indenture
confirmed that its Note Guarantee will apply to any such successor
Person's obligations under this Indenture and under the Securities of each
series unless such Note Guarantor shall have been released and discharged
from all of its obligations under its Note Guarantee in accordance with
this Indenture.
Upon an Investment Grade Rating Date, clause (4) of this Section 801
will cease to be effective with respect to any subsequent transaction governed
by this Section 801.
SECTION 802. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Note Guarantors, when
authorized by their respective Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or a
Note Guarantor, and the assumption by any such successor of the covenants
of the Company or such Note Guarantor herein and in the Securities and/or
any Note Guarantee, as the case may be; or
(2) to add to the covenants of the Company or any Note Guarantor for
the benefit of the Holders of all Securities, or to surrender any right or
power herein conferred upon the Company or any Note Guarantor, as
applicable, herein, in the Securities or in any Note Guarantee, as the
case may be; or
(3) to add any additional Events of Default for the benefit of the
Holders of all Securities; or
(4) to provide for additional Note Guarantees or other guarantees of
the Securities or to secure the Securities or any Note Guarantee or other
guarantee of the Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
both series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (6) shall not adversely affect the interests of the Holders
of Securities of either series in any material respect.
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SECTION 902. Supplemental Indentures With Consent of Holders. With
the consent of the Holders of at least a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company and
the Note Guarantors, when authorized by their respective Board Resolutions, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of any Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any Security
or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of either series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or of certain defaults hereunder and their consequences,
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1015, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1015 or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(5), or
(4) amend or modify any of the provisions of Article Thirteen or any
Note Guarantee in any manner adverse to the Holders of Securities of
either series.
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of the other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of either series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of either series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by
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the Holder and every subsequent Holder of that Security or portion of that
Security that evidences the same debt as the consenting Holder's Security,
whether or not notation of the consent is made upon any Security. Subject to the
following paragraph and Section 104, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Security or portion of such Security by
notice to the Trustee or the Company received by the Trustee or the Company, as
the case may be, before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, set any day as a
record date for the purpose of determining the Holders of Outstanding Securities
of either series entitled to consent to any amendment, supplement or waiver, as
further provided in Section 104. If a record date is set pursuant hereto, then,
notwithstanding the last sentence of the immediately preceding paragraph, the
Holders of Outstanding Securities of the relevant series on such record date (or
their duly designated proxies), and no other Holders, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons remain Holders after such record
date. No such consent shall be valid or effective for more than 180 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of Securities, unless it makes a change described in any of
clauses (1) through (3) of the first paragraph of Section 902. In that case, the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Securities of either series may be presented or surrendered for payment
(the "Place of Payment"), where Securities of either series may be surrendered
for registration of transfer or
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exchange, where Securities may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee. The Company hereby designates the
Corporate Trust Office as the Place of Payment, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of either series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect to either
series of Securities, it will, on or before each due date of the principal of or
any premium or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for either
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for either series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee
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all sums held in trust by such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of either series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers' Certificate, stating whether
or not to the best knowledge of the signers thereof the Company or any Note
Guarantor is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company or any
Note Guarantor shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
SECTION 1005. Existence. Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its and each Note Guarantor's existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of
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Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company or such Note Guarantor and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 1008. Limitation on Liens. The Company will not, and will
not permit any Restricted Subsidiary to, create, incur, issue, assume or
guarantee any indebtedness of the Company or any Subsidiary secured by a Lien
upon any Principal Property, or upon shares of capital stock or evidences of
indebtedness issued by any Restricted Subsidiary and owned by the Company or any
Restricted Subsidiary, now owned or hereafter owned by the Company, without
making effective provision to secure all of the Securities of each series then
outstanding by such Lien, equally and ratably with any and all other
indebtedness thereby secured, so long as such indebtedness shall be so secured.
The foregoing restrictions shall not apply, however, to (1) Liens on
any property existing at the time of the acquisition thereof; (2) Liens on
property of a corporation existing at the time such corporation is merged into
or consolidated with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of such corporation (or a
division thereof) as an entirety or substantially as an entirety to the
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Company or a Restricted Subsidiary, provided that such Lien as a result of such
merger, consolidation, sale, lease or other disposition is not extended to
property owned by the Company or such Restricted Subsidiary immediately prior
thereto; (3) Liens on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary; (4) Liens securing indebtedness of
a Restricted Subsidiary to the Company or to another Restricted Subsidiary; (5)
Liens to secure all or part of the cost of acquisition, construction,
development or improvement of the underlying property, or to secure indebtedness
incurred to provide funds for any such purpose, provided that the commitment of
the creditor to extend the credit secured by any such Lien shall have been
obtained not later than twenty-four months after the later of (a) the completion
of the acquisition, construction, development or improvement of such property or
(b) the placing in operation of such property or of such property as so
constructed, developed or improved; (6) Liens on any property created, assumed
or otherwise brought into existence in contemplation of the sale or other
disposition of the underlying property, whether directly or indirectly, by way
of share disposition or otherwise; provided that the Company must have disposed
of such property within 180 days from the creation of such Liens and any
indebtedness secured by such Liens shall be without recourse to the Company or
any Subsidiary; (7) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments; (8) Liens to
secure indebtedness of joint ventures in which the Company or a Restricted
Subsidiary has an interest, to the extent such Liens are on property or assets
of, or equity interests in, such joint ventures; (9) Liens on Equipment Held for
Resale; and (10) any indebtedness secured by Liens existing on the date of this
Indenture or any extension, renewal or replacement or refunding of any Lien
existing on the date of this Indenture or referred to in clauses (1) to (3) or
(5); provided, however, that the aggregate principal amount of indebtedness
secured thereby and not otherwise authorized by clauses (1) to (3) or (5), shall
not exceed the aggregate principal amount of indebtedness, plus any premium or
fee payable in connection with any such extension, renewal, replacement, or
refunding, so secured at the time of such extension, renewal, replacement or
refunding.
Notwithstanding the restrictions described above, the Company and
its Restricted Subsidiaries may incur, issue, assume or guarantee debt secured
by Liens without equally and ratably securing the Securities of each series then
outstanding, provided, that at the time of such incurrence, issuance, assumption
or guarantee, after giving effect thereto and to the retirement of any
indebtedness which is concurrently being retired, the aggregate amount of all
outstanding indebtedness secured by Liens so incurred, other than any
indebtedness secured by Liens permitted as described in clauses (1) through (10)
above, and together with all outstanding Attributable Value of all sale and
leaseback transactions permitted as described in Section 1009 hereof does not
exceed 15% of the Consolidated Net Tangible Assets of the Company.
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SECTION 1009. Limitation on Sale and Leaseback Transactions. Sale
and leaseback transactions by the Company or any Restricted Subsidiary involving
any Principal Property are prohibited unless either (1) the Company or its
Restricted Subsidiaries would be entitled pursuant to the provisions described
in clauses (1) through (10) of the second paragraph of Section 1008 hereof to
issue, assume or guarantee indebtedness secured by a Lien on such Principal
Property without equally and ratably securing the Securities of each series than
outstanding or (2) the Company or such Restricted Subsidiary shall apply, or
cause to be applied to the retirement of its secured debt within 120 days after
the effective date of the sale and leaseback transaction, an amount not less
than the greater of (i) the net proceeds (net of all legal, title and recording
tax expenses, commissions and other fees and expenses incurred 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 sale) of the sale of the
Principal Property leased pursuant to such arrangement or (ii) the fair market
value of the Principal Property so leased. This restriction will not apply to a
sale and leaseback transaction between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries or involving the taking back of a lease for a
period of less than three years.
Notwithstanding the restrictions described above, the Company or any
Restricted Subsidiary may enter into a sale and leaseback transaction provided,
that at the time of such transaction, after giving effect thereto, the
Attributable Value thereof, together with all indebtedness secured by Liens
permitted pursuant to Section 1008 hereto other than all indebtedness secured by
Liens permitted as described in clauses (1) through (10) of the second paragraph
of Section 1008 hereof and other than the Attributable Value of such sale and
leaseback transactions permitted by the preceding paragraph, does not exceed 15%
of Consolidated Net Tangible Assets of the Company.
SECTION 1010. Limitation on Incurrence of Indebtedness. The Company
will not, and will not permit any Restricted Subsidiary to, create, incur,
assume or directly or indirectly enter into any Guarantee of, or in any other
manner become directly or indirectly liable for ("incur"), any Indebtedness
(including Acquired Debt), except that the Company may incur Indebtedness if, at
the time of, and immediately after giving pro forma effect to, such incurrence
of Indebtedness, the Consolidated Coverage Ratio of the Company for the most
recently ended four fiscal quarters for which financial statements are available
would be at least 2.0 to 1. The foregoing limitations will not apply to the
incurrence by the Company or any Restricted Subsidiary, as the case may be, of
any Permitted Indebtedness of such Person.
Upon an Investment Grade Rating Date, this Section 1010 will cease
to be effective.
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SECTION 1011. Limitation on Restricted Payments. The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment, unless at the time of and immediately after giving
effect to the proposed Restricted Payment (with the value of any such Restricted
Payment, if other than cash, to be as determined in good faith by the Board of
Directors of the Company, which determination shall be conclusive), (i) no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof, (ii) the Company could incur at least $1.00 of
additional Indebtedness pursuant to the first sentence of Section 1010 and (iii)
the aggregate amount of all Restricted Payments made after the Issue Date shall
not exceed the Restricted Payment Amount.
The foregoing provisions will not prohibit the following actions
(collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such payment would have
been permitted under the Indenture and such payment shall be deemed to
have been paid on such date of declaration for purposes of clause (iii) of
the preceding paragraph;
(ii) the redemption, repurchase, retirement or other acquisition of
any Capital Stock or any Indebtedness of the Company that is subordinated
in right of payment to the Securities in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary) of Capital Stock of the Company (other than any Disqualified
Stock);
(iii) the defeasance, redemption, repurchase, retirement or other
acquisition of any Indebtedness of the Company that is subordinated in
right of payment to the Securities in exchange for, or out of the proceeds
of, the substantially concurrent sale of Refinancing Indebtedness that is
(x) at least as subordinated in right of payment to the Securities as the
Indebtedness being refinanced and (y) permitted to be incurred pursuant to
Section 1010;
(iv) the redemption, repurchase, retirement or other acquisition of
any Indebtedness of the Company that is subordinated in right of payment
to the Securities upon a Change of Control to the extent required by the
agreement governing such Indebtedness but only if the Company shall have
complied with Section 1012 and purchased all Securities tendered pursuant
to the offer to repurchase all of the Securities required thereby, prior
to purchasing or repaying such Indebtedness;
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(v) payments by the Company to purchase or otherwise acquire Capital
Stock of the Company (including options, warrants or other rights to
acquire such Capital Stock) from departing or deceased directors, officers
or employees of the Company or its Subsidiaries, whether pursuant to the
terms of an employee benefit plan or employment agreement or otherwise;
provided that the aggregate amount of all such repurchases shall not
exceed $2 million in any fiscal year; and
(vi) the payment by the Company of dividends on the common stock of
the Company in an amount not to exceed $25 million in any fiscal year;
provided that, in the case of clauses (v) and (vi), no Default or Event of
Default shall have occurred or be continuing at the time of such Permitted
Payment after giving effect thereto.
For purposes of clause (iii) of the first paragraph of this Section
1011, Permitted Payments made pursuant to clauses (i), (v) and (vi) of the
immediately preceding paragraph shall be included (with respect to clause (i),
as of the date of declaration) as Restricted Payments made since the Issue Date.
Upon an Investment Grade Rating Date, this Section 1011 will cease
to be effective.
SECTION 1012. Change of Control. Upon the occurrence of a Change of
Control Triggering Event, each holder of the Securities of either series shall
have the right to require that the Company repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such holder's Securities at a
repurchase price in cash equal to 100% of the aggregate principal amount thereof
plus accrued interest, if any, to the date of such repurchase.
Within 30 days following any such Change of Control Triggering
Event, the Company will be required to mail a notice to each holder of a
Security (with a copy to the Trustee) stating (1) that a Change of Control
Triggering Event has occurred and that such holder has the right to require the
Company to repurchase such holder's Securities at a repurchase price in cash
equal to 100% of the aggregate principal amount thereof plus accrued interest,
if any, to the date of repurchase (the "Change of Control Offer"); (2) the
repurchase date, which shall be a Business Day and be not earlier than 20
Business Days or later than 60 Business Days from the date such notice is mailed
(the "Repurchase Date"); (3) that interest on any Security tendered will
continue to accrue; (4) that interest on any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue after the
repurchase of any Security on the Repurchase Date; (5) that holders electing to
have a Security purchased pursuant to the Change of Control Offer will be
required to surrender such Security, with the
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form entitled "Option to Elect Purchase" on the reverse of the Security
completed, to the Trustee at the address specified in the notice prior to the
close of business on the Business Day prior to the Repurchase Date; (6) that
holders of Securities will be entitled to withdraw their election on the terms
and conditions set forth in such notice; and (7) that holders of Securities that
elect to have their Securities purchased only in part will be issued new
Securities in a principal amount equal to the then unpurchased portion of the
Securities surrendered.
For so long as the Securities are in the form of Global Securities,
upon any such Change of Control Triggering Event, the Company will be required
to deliver to the Depositary, within the time periods specified above, for
re-transmittal to its participants, a notice substantially to the effect
specified in clauses (1) through (4) and (6) of the previous paragraph. Such
notice shall also specify the required procedures (furnished by the Depositary)
for holders of interests in the Global Security to tender and receive payment of
the purchase price for interests in accordance with the Depositary's rules,
regulations and practices (including the Depositary's "Repayment Option
Procedures" to the extent applicable).
On the Repurchase Date, the Company shall (i) accept for payment
such surrendered Securities or portions thereof tendered pursuant to the Change
of Control Offer; (ii) deposit with the Trustee money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee Securities so accepted with an
officers' certificate identifying the Securities or portions thereof so
tendered. The Company will publicly announce the result of the Change of Control
Offer as soon as practicable after the Repurchase Date.
The Company will comply with all applicable tender offer rules,
including, without limitation, Rule 14e-1 under the Exchange Act in connection
with a Change of Control Offer.
SECTION 1013. Future Note Guarantors. The Company will cause each
Restricted Subsidiary that Guarantees any Bank Indebtedness promptly to execute
and deliver to the Trustee a supplemental indenture substantially in the form
set forth in Exhibit B to this Indenture pursuant to which such Restricted
Subsidiary will guarantee the Company's obligations under the Indenture and the
Securities of each series, in accordance with and as further provided in Section
1302.
SECTION 1014. Provision of Financial Statements and Reports. Whether
or not the Company is then subject to Section 13(a) or 15(d) of the Exchange
Act, the Company will file with the Commission (unless such filing is not
permitted under the Exchange Act), so long as the Securities of either series
are outstanding, the annual reports, quarterly reports and
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other periodic reports that the Company would have been required to file with
the Commission pursuant to such Section 13(a) or 15(d) if the Company were so
subject, and such documents shall be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject. The
Company will also in any event (i) within 15 days of each Re quired Filing Date,
(a) transmit or cause to be transmitted by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, without cost to such
Holders, and (b) file with the Trustee copies of the annual reports, quarterly
reports and other periodic reports which the Company would have been required to
file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
if the Company were subject to such Sections and (ii) if filing such documents
by the Company with the Commission is prohibited under the Exchange Act,
promptly upon written request and payment of the reasonable cost of duplication
and delivery, supply copies of such documents to any prospective Holder at the
Company's cost.
SECTION 1015. Waiver of Certain Covenants. The Company may, with
respect to the Securities of either series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to 901(2) for the benefit of the Holders of such series or in Sections
1008 through 1014, inclusive, if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Optional Redemption. The Securities of each series
will be redeemable, in whole or in part, at the option of the Company at any
time at a redemption price equal to the greater of (i) 100% of the principal
amount of such Securities or (ii) as determined by an Independent Investment
Banker, the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus, in each case, accrued interest thereon to the date
of redemption. Redemption of Securities as permitted by this Section 1101 shall
be made in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the
Securities of either series (including any such redemption affecting only a
single Security), the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of either series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of either series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of either series
consisting of a single Security are to be redeemed, the principal amount
of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date, and
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price. Prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may elect, at its option at any time, to have Section
1202 or Section 1203 applied to any Securities or either series of Securities,
upon compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution.
SECTION 1202. Defeasance and Discharge. Upon the Company's exercise
of its option (if any) to have this Section applied to any Securities or either
series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided
in this Section on and after the date the conditions
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set forth in Section 1204 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1203 applied to such Securities.
SECTION 1203. Covenant Defeasance. Upon the Company's exercise of
its option (if any) to have this Section applied to any Securities or either
series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Section 801(3), Sections 1006 through 1011, inclusive, and
any covenants provided pursuant to Section 901(2) for the benefit of the Holders
of such Securities and (2) the occurrence of any event specified in Section
501(4) (with respect to any of Section 801(3), Sections 1006 through 1011,
inclusive, and any such covenants provided pursuant to Section 901(2)) and
Section 501(5) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 1202 or Section
1203 to any Securities or either series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically
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pledged as security for, and dedicated solely to, the benefits of the
Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1202 apply to any
Securities or either series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
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(3) In the event of an election to have Section 1203 apply to any
Securities or either series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6) and
(7), at any time on or prior to the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 91st day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and
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Section 1206, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1204 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1206. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 1202 or 1203 shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
1205 with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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ARTICLE THIRTEEN
GUARANTEE OF SECURITIES
SECTION 1301. Unconditional Guarantee. (a) Each Note Guarantor
hereby jointly and severally and fully and unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns that: (1) the principal of, and premium,
if any, and interest on, the Securities of each series will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Securities of each series and all other
obligations of the Company or the Note Guarantors to the Holders or the Trustee
hereunder or thereunder (including fees, expenses or other) and all other
Indenture Obligations will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (2) in case of any extension
of time of payment or renewal of any Securities of either series or any of such
other Indenture Obligations with respect to the Securities of either series, the
same will be promptly paid in full when due in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaran teed, or failing performance of
any other obligation of the Company to the Holders of Securities of either
series, for whatever reason, each Note Guarantor will be obligated to pay or
cause the payment of, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Securities of
either series shall constitute an event of default under this Note Guarantee,
and shall entitle the Holders of Securities of such series to accelerate the
obligations of the Note Guarantor hereunder in the same manner and to the same
extent as the obligations of the Company.
Each Note Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of this Indenture, the Securities of either series or the
obligations of the Company or any other Note Guarantor to the Holders or the
Trustee hereunder or thereunder, the absence of any action to enforce the same,
any waiver or consent by any Holder of Securities with respect to any provisions
hereof or thereof, any release of any other Note Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, whether or not a
Note Guarantee is affixed to any particular Security, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
Each Note Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that (except as otherwise provided in Section 1303) its
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Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and this Note Guarantee.
This Note Guarantee is a guarantee of payment and not of collection. Each Note
Guarantor further agrees that, as between it, on the one hand, and the Holders
of Securities and the Trustee, on the other hand, (1) subject to this Article
Thirteen, the maturity of the obligations guaranteed hereby may be accelerated
as and to the extent provided in Article Five hereof for the purposes of this
Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (2) in the event of any acceleration of such obligations as provided in
Article Five hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Note Guarantor for the purpose of this
Note Guarantee. Neither the Trustee nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or to take any other
steps under any security for the Indenture Obligations or against the Company or
any other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by any or all Note
Guarantors of their liabilities and obligations under their respective Note
Guarantees or under this Indenture.
Until terminated in accordance with Section 1303, this Note
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities of either series are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on such Securities, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities of the
relevant series shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
(b) Each Note Guarantor that makes a payment or distribution under
this Note Guarantee shall have the right to seek contribution from any
non-paying Note Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Note Guarantee.
(c) Notwithstanding any of the foregoing, each Note Guarantor's
liability under this Note Guarantee shall be limited to the maximum amount that
would not result in this Note Guarantee constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
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(d) Each Note Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that its Note Guarantee, and the waiver set forth in Section 1304, is
knowingly made in contemplation of such benefits.
SECTION 1302. Additional Note Guarantors. Each Restricted Subsidiary
that is required to become a Note Guarantor pursuant to Section 1013 shall
promptly execute and deliver to the Trustee a supplemental indenture
substantially in the form set forth in Exhibit B to this Indenture, evidencing
its Note Guarantee on substantially the terms set forth in this Article
Thirteen. Concurrently therewith, the Company shall deliver to the Trustee an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by such Restricted Subsidiary and that, subject to the
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws now or hereafter in effect affecting
creditors' rights or remedies generally and the general principles of equity,
such supplemental indenture is a valid and binding agreement of such Restricted
Subsidiary, enforceable against such Restricted Subsidiary in accordance with
its terms.
SECTION 1303. Release of a Note Guarantee. (a) Any Note Guarantor
shall be automatically and unconditionally released and discharged from all of
its obligations under its Note Guarantee, and such Note Guarantee shall
terminate, at any such time that such Note Guarantor is released and discharged
from all of its obligations under all of its Guarantees in respect of Bank
Indebtedness, unless such release results from payment under such Guarantee.
Upon the delivery by the Company to the Trustee of an Officers' Certificate and,
if requested by the Trustee, an Opinion of Counsel to the effect that the
transaction giving rise to such release of such Note Guarantee was made by the
Company in accordance with the provisions of this Indenture and the Securities,
the Trustee shall execute any documents reasonably required in order to evidence
such release and discharge of such Note Guarantor from its obligations under and
termination of its Note Guarantee.
(b) Upon the sale, exchange or transfer to any Person not an
Affiliate of the Company of all of the Capital Stock held by the Company and its
Subsidiaries in, or all or substantially all the assets of, a Note Guarantor
(which sale, exchange or transfer is not prohibited by this Indenture), such
Note Guarantor shall be automatically and unconditionally released and
discharged from all its obligations under its Note Guarantee, and such Note
Guarantee shall terminate. Upon such occurrence, the Trustee shall execute any
documents reasonably required in order to evidence such release, discharge and
termination in respect of such Note Guarantee.
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(c) Upon the release of any Note Guarantor from its Note Guarantee
pursuant to the provisions of the Indenture, each other Note Guarantor not so
released shall remain liable for the full amount of principal of, and premium,
if any, and interest on, the Securities as and to the extent provided in this
Article Thirteen.
(d) Each Note Guarantee shall terminate and cease to be of further
effect upon (i) defeasance of the Company's obligations in accordance with
Section 1202 hereof and (ii) satisfaction and discharge of this Indenture in
accordance with Section 401.
SECTION 1304. Waiver of Subrogation. Each Note Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Securities of either
series and this Indenture or such Note Guarantor's obligations under its Note
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Securities of either series
against the Company, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, until this Indenture is
discharged and all of the Securities of both series are discharged and paid in
full. If any amount shall be paid to any Note Guarantor in violation of the
preceding sentence and the Securities of the relevant series shall not have been
paid in full, such amount shall have been deemed to have been paid to such Note
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
of the Securities of such series, and shall forthwith be paid to the Trustee for
the benefit of such Holders to be credited and applied upon such Securities,
whether matured or unmatured, in accordance with the terms of this Indenture.
SECTION 1305. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc. Upon any payment or distribution
of assets of any Note Guarantor referred to in this Article Thirteen, the
Trustee, subject to the provisions of Section 601, and the Holders of Securities
of either series shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding-up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to such Holders, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of other
Indebtedness of such Note Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Thirteen; provided that the foregoing shall apply
only if such court has been fully apprised of the provisions of this Article
Thirteen.
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SECTION 1306. Article Thirteen Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article Thirteen shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article Thirteen in addition to or in place of the Trustee.
SECTION 1307. No Suspension of Remedies. Nothing contained in this
Article Thirteen shall limit the right of the Trustee or the Holders of
Securities of either series to take any action to accelerate the maturity of
such Securities pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
------------------------
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This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
BECKMAN INSTRUMENTS, INC.
By D. K. WILSON
-------------------------------------
Attest:
WILLIAM H. MAY
- ------------------------
COULTER CORPORATION
By WILLIAM H. MAY
-------------------------------------
Attest:
JOHN A. WEISS
- ------------------------
BECKMAN INSTRUMENTS (NAGUABO), INC.
By WILLIAM H. MAY
-------------------------------------
Attest:
JOHN A. WEISS
- ------------------------
HYBRITECH INCORPORATED
By WILLIAM H. MAY
-------------------------------------
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Attest:
JOHN A. WEISS
- ------------------------
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SMITHKLINE DIAGNOSTICS, INC.
By D. K. WILSON
-------------------------------------
Attest:
JOHN A. WEISS
- ------------------------
COULTER LEASING CORPORATION
By WILLIAM H. MAY
-------------------------------------
Attest:
JOHN A. WEISS
- ------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By JOHN R. PRENDIVILLE
-------------------------------------
Attest:
LELAND HANSEN
- ------------------------
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EXHIBIT A
(FACE OF SECURITY)
BECKMAN INSTRUMENTS, INC.
[7.10][7.45]% [Series B]* Senior Note due [2003][2008]
CUSIP No._________
No. _________ $ ________
Beckman Instruments, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co.,____________________, or
registered assigns, the principal sum of ___________________________________
Dollars on March 4, [2003][2008], and to pay interest thereon from March 4, 1998
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for [on this Security or on the Initial Security surrendered in
exchange therefor]*, semi-annually on March 4 and September 4 in each year,
commencing September 4, 1998, at the rate of [7.10][7.45]% per annum[(subject to
adjustment as provided below)]**[, except that interest accrued on this Security
for periods prior to the date on which the Initial Security was surrendered in
exchange for this Security will accrue at the rate or rates borne by the
Securities from time to time during such periods]*, until the principal hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be February 19 or August 19
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor
- --------
* Include only for Exchange Security.
** Include only for Initial Security.
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Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated March 4, 1998, among the Company and the
Initial Purchasers named therein. In the event that either (i) the Exchange
Offer Registration Statement is not filed with the Securities and Exchange
Commission on or prior to the 45th calendar day following the Issue Date, (ii)
the Exchange Offer Registration Statement has not been declared effective on or
prior to the 120th calendar day following the Issue Date, (iii) the Exchange
Offer is not consummated or the Shelf Registration Statement is not declared
effective, in either case, on or prior to the 150th calendar day following the
Issue Date or (iv) the Exchange Offer Registration Statement is declared
effective but thereafter ceases to be effective or usable (each such event
referred to in clauses (i) through (iv) above, a "Registration Default"), the
interest rate borne by this Security shall be increased by one-quarter of one
percent per annum (0.25%) upon the occurrence of each Registration Default,
which rate will increase by one-quarter of one percent (0.25%) each 90-day
period that such additional interest continues to accrue under any such
circumstance, with an aggregate maximum increase in the interest rate equal to
one-half of one percent (0.50%) per annum until such Registration Default has
been cured. Upon (w) the filing of the Exchange Offer Registration Statement
after the 45-day period described in clause (i) above, (x) the effectiveness of
the Exchange Offer Registration Statement after the 120-day period described in
clause (ii) above, (y) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be, after the
150-day period described in clause (iii) above, or (z) the cure of any
Registration Default described in clause (iv) above, the interest rate borne by
this Security from the date of such filing, effectiveness, consummation or cure,
as the case may be, will be reduced to the original interest rate if the Company
is otherwise in compliance with this paragraph; provided, however, that if,
after any such reduction in interest rate, a different event specified in clause
(i), (ii), (iii) or (iv) above occurs, the interest rate will again be increased
pursuant to the foregoing provisions.]*
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in The Borough of Manhattan, The City of New York, in such coin or
currency of the United States
- --------
* Include only for Initial Security.
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of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
BECKMAN INSTRUMENTS, INC.
By
-------------------------------------
Name:
Title:
[SEAL]
Attest:
- --------------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
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By
-------------------------------------
Authorized Officer
Dated:
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(REVERSE OF SECURITY)
This Security is one of the duly authorized issue of [7.10][7.45]%
[Series B]* Senior Notes due [2003][2008] of the Company (herein called the
"Securities"), issued under an Indenture, dated as of March 4, 1998 (herein
called the "Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company, as issuer, the Note Guarantors, as guarantors,
and The First National Bank of Chicago, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to [$160,000,000][$240,000,000].
This Security is entitled to the benefits of the certain senior Note
Guarantees of the Note Guarantors and may thereafter be entitled to certain
other senior Note Guarantees made for the benefit of the Holders. Reference is
made to Article Thirteen of the Indenture and to the Note Guarantees for terms
relating to such Note Guarantees.
The Securities are subject to redemption upon not less than 30 days'
notice by mail, at any time, as a whole or in part, at the election of the
Company, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of such Securities or (ii) as determined by an Independent Investment
Banker, the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus, in each case, accrued interest thereon to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Securities will not be entitled to the benefit of a sinking
fund.
- --------
* Include only for Exchange Security.
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The Indenture provides that, upon the occurrence of a Change of
Control Triggering Event, each Holder will have the right to require that the
Company repurchase all or any part of such Holder's Securities at a repurchase
price in cash equal to 100% of the aggregate principal amount thereof plus
accrued interest, if any, to the date of such repurchase.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and
certain Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall
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not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000.00 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE INDENTURE, THIS SECURITY AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN
ANY MANDATING THE APPLICATION OF SUCH LAWS).
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All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned holder hereby sell(s) assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[In connection with any transfer of this Security occurring prior to
the date which is the earlier of the date of an effective Registration Statement
or March 4, 2000, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the
Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to registered this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 312 of the Indenture
shall have been satisfied.]*
Date:
-------------------------
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
-------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security 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, as amended, 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 the
Company as the undersigned has requested pursuant to Rule 144A or has
- --------
* Include only for Initial Security, except Offshore Physical Security in
accordance with the Indenture.
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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]**
- ----------
** Include only for Initial Security, except Offshore Physical Security in
accordance with the Indenture.
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant
to Section 1012 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1012 of the Indenture, state the amount (in original
principal amount) below:
$
---------------------------
Date:
------------------------------------
Your Signature:
------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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EXHIBIT B
Form of Supplemental Indenture in Respect of Note Guarantee
This Supplemental Indenture, dated as of [_________] (this
"Supplemental Indenture"), among [name of Note Guarantor] (the "Note
Guarantor"), [Company] (together with its successors and assigns, the
"Company"), each other then existing Subsidiary Guarantor under the Indenture
referred to below, and [Trustee], as Trustee under the Indenture referred to
below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore become parties
to an Indenture, dated as of March 4, 1998, as amended (as amended,
supplemented, waived or otherwise modified, the "Indenture"), providing for the
issuance of an aggregate principal amount of $160,000,000 of 7.10% Senior Notes
due 2003 and 7.10% Series B Senior Notes due 2003 of the Company (collectively,
the "2003 Notes") and an aggregate principal amount of $240,000,000 of 7.45%
Senior Notes due 2008 and 7.45% Series B Senior Notes due 2008 of the Company
(collectively, the "2008 Notes" and, together with the 2003 Notes, the
"Securities");
WHEREAS, Sections 1013 and 1302 of the Indenture provide that under
certain circumstances the Company is required to cause the Note Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Note Guarantor shall guarantee the Company's obligations under the
Securities pursuant to a Note Guarantee on the terms and conditions set forth
herein and in Article Thirteen of the Indenture; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties
hereto are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Note Guarantor, the Company, the other Note Guarantors and the Trustee mutually
covenant and agree for the benefit of the Holders of the Securities as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined. The words "herein," "hereof" and "hereby" and other words of
similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
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2. Agreement to Guarantee. The Note Guarantor hereby agrees, jointly
and severally with all other Note Guarantors and fully and unconditionally, to
guarantee the Company's obligations under the Indenture and the Securities of
each series on the terms and subject to the conditions set forth in Article
Thirteen of the Indenture and to be bound by all other applicable provisions of
the Indenture as a Note Guarantor.
3. Termination, Release and Discharge. The Note Guarantor's Note
Guarantee shall terminate and be of no further force or effect, and the Note
Guarantor shall be released and discharged from all obligations in respect of
such Note Guarantee, as and when provided in Section 1303 of the Indenture.
4. Parties. Nothing in this Supplemental Indenture is intended or
shall be construed to give any Person, other than the Holders and the Trustee,
any legal or equitable right, remedy or claim under or in respect of the Note
Guarantor's Note Guarantee or any provision contained herein or in Article
Thirteen of the Indenture.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY
MANDATING THE APPLICATION OF SUCH LAWS).
6. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
7. Counterparts. The parties hereto may sign one or more copies of
this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement.
8. Headings. The section headings herein are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NAME OF GUARANTOR],
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By:
-------------------------------------
Name:
Title:
Address:
[COMPANY]
By:
-------------------------------------
Name:
Title:
[Add signature block for any other
existing Note Guarantor]
[TRUSTEE]
By:
-------------------------------------
Name:
Title:
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EXHIBIT C
Form of Certificate to Be Delivered upon Termination of Restricted Period
On or after April 14, 1998
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: Beckman Instruments, Inc. (the "Company")
[7.10][7.45]% Senior Notes due [2003][2008] (the "Securities")
Ladies and Gentlemen:
This letter relates to $___________ principal amount of Securities
represented by the offshore global security certificate (the "Offshore Global
Security"). Pursuant to Section 203 of the Indenture dated as of March 4, 1998
relating to the Securities (the "Indenture"), we hereby certify that (1) we are
the beneficial owner of such principal amount of Securities represented by the
Offshore Global Security and (2) we are a Non-U.S. Person to whom the Securities
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the Securities Act of 1933, as amended ("Regulation S"). Accordingly, you
are hereby requested to issue an Offshore Physical Security representing the
undersigned's interest in the principal amount of Securities represented by the
Offshore Global Security, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
-------------------------------------
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EXHIBIT C
Authorized Signature
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EXHIBIT D
Form of Accredited Investor Certificate
Transferee Letter of Representation
The First National Bank of Chicago, as Trustee
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Ladies and Gentlemen:
In connection with our proposed purchase of $________ aggregate
principal amount of the [7.10][7.45]% Senior Notes due 200[3][8] (the
"Securities") of Beckman Instruments, Inc. (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for the
account of such an institutional "accredited investor", and we are acquiring the
Securities 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 other
applicable securities laws and we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment.
2. We understand and acknowledge that the Securities have not been
registered under the Securities Act or any other applicable securities law and
may not be offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to the
date which is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) for so
long as the
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Securities are eligible for resale pursuant to Rule 144A under the Securities
Act ("Rule 144A"), to a person we reasonably believe is a "Qualified
Institutional Buyer" within the meaning of Rule 144A (a "QIB") that purchases
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. persons that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Securities for its
own account or for the account of such an institutional "accredited investor"
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 in each of the foregoing cases to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and to
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Securities is proposed to be made
pursuant to clause (e) above prior to the Resale Restriction Termination Date,
the transferor shall deliver to the trustee (the "Trustee") under the Indenture
pursuant to which the Securities are issued a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act and that it is acquiring such Securities for investment
purposes and not for distribution in violation of the Securities Act. We
acknowledge that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer of the Securities pursuant to clauses (d), (e) and
(f) above prior to the Resale Restriction Termination Date to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereto to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
Very truly yours,
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(Name of Purchaser)
By:
------------------------------------
Date:
------------------------------------
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
By:
---------------------------------
Date:
---------------------------------
Taxpayer ID number:
-------------------
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EXHIBIT E
Form of Regulation S Certificate
Regulation S Certificate
To: The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: Beckman Instruments Inc. (the "Company")
[7.10][7.45]% Senior Notes due [2003][2008] (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_____ aggregate principal
amount of Securities, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S ("Regulation S") under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Securities was not made to a person in the
United States (unless such person or the account held by it for which it
is acting is excluded from the definition of "U.S. person" pursuant to
Rule 902(o) of Regulation S under the circumstances described in Rule
902(i)(3) of Regulation S) or specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer
was outside the United States or we and any person acting on our behalf
reasonably believed that the buyer was outside the United States or (b)
the transaction was executed in, on or through the facilities of a
designated offshore securities market, and neither we nor any person
acting on our behalf knows that the transaction was pre-arranged with a
buyer in the United States.
3. Neither we, any of our affiliates, nor any person acting on our
or their behalf has made any directed selling efforts in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable.
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4. The proposed transfer of Securities is not part of a plan or
scheme to evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Securities, and the proposed
transfer takes place before the Offshore Security Exchange Date referred
to in the Indenture, dated as of March 4, 1998, among the Company, the
Note Guarantors thereunder and the Trustee, or we are an officer or
director of the Company or a distributor, we certify that the proposed
transfer is being made in accordance with the provisions of Rules 903 and
904(c) of Regulation S.
You and the Company are entitled to rely upon this Certificate and
are irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:
-------------------------------------
Name:
Title:
Address:
Date of this Certificate: _______________ __, 199_
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EXHIBIT F
Form of Rule 144A Certificate
Rule 144A Certificate
To: The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: Beckman Instruments, Inc. (the "Company")
[7.10][7.45]% Senior Notes due [2003][2008] (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $______ aggregate principal
amount of Securities, we confirm that such sale has been effected pursuant to
and in accordance with Rule 144A ("Rule 144A") under the Securities Act of 1933,
as amended (the "Securities Act"). We are aware that the transfer of Securities
to us is being made in reliance on the exemption from the provisions of Section
5 of the Securities Act provided by Rule 144A. Prior to the date of this
Certificate we have been given the opportunity to obtain from the Company the
information referred to in Rule 144A(d)(4), and have either declined such
opportunity or have received such information.
You and the Company are entitled to rely upon this Certificate and
are irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:
-------------------------------------
Name:
Title:
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Address:
Date of this Certificate: _________ __, 199_
F-2