As Filed with the Securities and Exchange Commission on March 26, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
--------------------------
CONMED CORPORATION
(Exact name of issuer as specified in its charter)
NEW YORK 16-0977505
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
CONMED CORPORATION
310 Broad Street
Utica, New York 13501
(Address of Principal Executive Offices) (Zip Code)
CONMED Corporation 1992 Stock Option Plan
(Full title of the plan)
------------------------
Eugene R. Corasanti
President and Chairman of the board
CONMED CORPORATION
310 Broad Street
Utica, New York 13501
(Name and address of agent for service)
(315) 797-8375
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 987,500 $22.4375 $22,157,031.25 $6,537
($.01 par value) shares
- -------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) based upon the average of the high and low prices
reported on the Nasdaq Stock Market on March 20, 1998.
</FN>
</TABLE>
<PAGE>
This is a registration of additional securities of the same class as
other securities for which a registration statement filed on this form relating
to an employee benefit plan has become effective. The contents of an earlier
registration statement, File No. 33-49526, are incorporated herein by reference.
With respect to Item 5 (Interests of Named Experts and Counsel), the
validity of the Common Stock which is registered hereby will be passed upon by
Joseph J. Corasanti, Vice President-Legal Affairs and General Counsel of the
Registrant. Mr. Corasanti is also a director of the Registrant.
EXHIBITS
Exhibit No. Description
----------- -----------
4.1 Amended and Restated By-Laws, as adopted by the Board
of Directors on December 26, 1990 -- incorporated
herein by reference to the exhibit in the Company's
Current Report on Form 8-K, dated March 7, 1991 (File
No. 0-16093).
4.2A 1992 Amendment to Certificate of Incorporation and
Restated Certificate of Incorporation of CONMED
Corporation -- incorporated herein by reference to the
exhibit in the Company's Annual Report on Form 10-K for
the year ended December 25, 1992.
4.2B 1996 Amendment to Certificate of Incorporation and
Restated Certificate of Incorporation of CONMED
Corporation -- incorporated herein by reference to the
exhibit in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996.
4.3 Warrant, dated as of December 31, 1997, issued to
Bristol-Myers Squibb Company -- incorporated herein by
reference to Exhibit 4.1 in the Company's Current
Report on Form 8-K, filed on January 8, 1998.
-2-
<PAGE>
4.4 Credit Agreement, dated as of December 29, 1997, among
CONMED Corporation, the several banks and other
financial institutions of entities from time to time
parties to the Agreement, Chase Securities Inc.,
Salomon Brothers Holding Company, Inc and The Chase
Manhattan Bank -- incorporated herein by reference to
Exhibit 10.1 in the Company's Current Report on Form
8-K, filed on January 8, 1998.
4.5 Guarantee and Collateral Agreement, dated as of
December 31, 1997, made by CONMED Corporation and
certain of its subsidiaries in favor of The Chase
Manhattan Bank -- incorporated herein by reference to
Exhibit 10.2 in the Company's Current Report on Form
8-K filed on January 8, 1998.
4.6 Indenture, dated as of March 5, 1998, by and among
CONMED Corporation, the Subsidiary Guarantors named
therein and First Union National Bank, as Trustee.
5 Opinion of Joseph J. Corasanti
23.1 Consent of Joseph J. Corasanti (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP.
24 Power of Attorney (set forth on the signature pages of
this registration statement).
-3-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Utica, New York on March 25, 1998.
CONMED Corporation
By: /s/ EUGENE R. CORASANTI
----------------------------
Name: Eugene R. Corasanti
Title: President, Chief
Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Eugene R. Corasanti and Joseph J. Corasanti, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him in his name, place and stead, in any
and all capacities, to sign and any and all amendments (including post-effective
amendments) to the Registration Statement, and file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them may lawfully do or cause to be done by virtue hereof.
-4-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on March 25, 1998.
Signatures Title
---------- -----
/s/ EUGENE R. CORASANTI President, Chief Executive Officer
- ----------------------------- and Chairman of the Board
Eugene R. Corasanti (Principal Executive Officer)
/s/ ROBERT D. SHALLISH, JR. Chief Financial Officer, Vice
- ----------------------------- President--Finance and Assistant
Robert D. Shallish, Jr. Secretary (Principal Financial
Officer)
/s/ LUKE A. POMILIO Controller (Principal Accounting
- ----------------------------- Officer)
Luke A. Pomilio
/s/ JOSEPH J. CORASANTI Vice President--Legal Affairs,
- ----------------------------- General Counsel and Director
Joseph J. Corasanti
/s/ ROBERT E. REMMELL Director and Assistant Secretary
- -----------------------------
Robert E. Remmell
/s/ HARRY CONE Director
- -----------------------------
Harry Cone
/s/ BRUCE F. DANIELS Director
- -----------------------------
Bruce F. Daniels
/s/ WILLIAM D. MATTHEWS Director
- -----------------------------
William D. Matthews
-5-
EXHIBIT F
CONMED CORPORATION
---------------------------------
$130,000,000
9% SENIOR SUBORDINATED NOTES DUE 2008
---------------------------------
INDENTURE
Dated as of March 5, 1998
---------------------------------
FIRST UNION NATIONAL BANK,
Trustee
---------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
310
(a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.03; 7.10
(c)................................................. N.A.
311
(a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312
(a)................................................. 13.01
(b)................................................. 14.03
(c)................................................. 14.03
313
(a)................................................. 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06; 7.07
(c)................................................. 7.06; 14.02
(d)................................................. 7.06
314
(a)................................................. 4.03; 14.05
(b)................................................. N.A.
(c)(1).............................................. 14.04
(c)(2).............................................. 14.04
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 14.05
(f)................................................. N.A.
315
(a)................................................. 7.01(b)
(b)................................................. 7.05; 14.02
(c)................................................. 7.01(a)
(d)................................................. 7.01(c)
(e)................................................. 6.11
<PAGE>
316
(a) (last sentence)................................. 1.01
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
(c)................................................. N.A.
317
(a)(1).............................................. 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318
(a)................................................. 1.03, 14.01
(b)................................................. N.A.
(c)................................................. 13.01
N.A. means not applicable
* This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................1
SECTION 1.01. Definitions...............................................1
SECTION 1.02. Other Definitions........................................23
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........23
SECTION 1.04. Rules of Construction....................................23
ARTICLE 2 THE NOTES .........................................................24
SECTION 2.01. Form and Dating..........................................24
SECTION 2.02. Execution and Authentication.............................25
SECTION 2.03. Registrar and Paying Agent...............................26
SECTION 2.04. Paying Agent to Hold Money in Trust......................26
SECTION 2.05. Registration of Transfer and Exchange....................26
SECTION 2.06. Replacement Notes........................................32
SECTION 2.07. Outstanding Notes........................................33
SECTION 2.08. Acts of Holders; Record Date.............................33
SECTION 2.09. Temporary Notes..........................................34
SECTION 2.10. Cancellation.............................................34
SECTION 2.11. Defaulted Interest.......................................34
SECTION 2.12. Notes Issuable in the Form of a Global Note..............35
ARTICLE 3 REDEMPTION AND PREPAYMENT...........................................37
SECTION 3.01. Notices to Trustee.......................................37
SECTION 3.02. Selection of Notes to be Purchased or Redeemed...........37
SECTION 3.03. Notice of Redemption.....................................37
SECTION 3.04. Effect of Notice of Redemption...........................38
SECTION 3.05. Deposit of Redemption or Purchase Price..................39
SECTION 3.06. Notes Redeemed in Part...................................39
SECTION 3.07. Optional Redemption......................................39
SECTION 3.08. Mandatory Redemption.....................................40
SECTION 3.09. Offer to Purchase by Application of Excess
Proceeds...........................................40
ARTICLE 4 COVENANTS .........................................................42
SECTION 4.01. Payment of Notes.........................................42
SECTION 4.02. Maintenance of Office or Agency..........................43
SECTION 4.03. Reports..................................................43
SECTION 4.04. Compliance Certificate...................................44
SECTION 4.05. Taxes....................................................45
SECTION 4.06. Stay, Extension and Usury Laws...........................45
i
<PAGE>
SECTION 4.07. Restricted Payments......................................45
SECTION 4.08. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries..................................48
SECTION 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock..........................................49
SECTION 4.10. Asset Sales..............................................52
SECTION 4.11. Transactions With Affiliates.............................53
SECTION 4.12. Liens....................................................54
SECTION 4.13. Sale and Leaseback Transactions..........................54
SECTION 4.14. Offer to Purchase Upon Change of Control.................54
SECTION 4.15. Corporate Existence......................................56
SECTION 4.16. Anti-Layering............................................57
ARTICLE 5 SUCCESSORS..........................................................57
SECTION 5.01. Merger, Consolidation, or Sale of Assets.................57
SECTION 5.02. Successor Corporation Substituted........................57
ARTICLE 6 DEFAULTS AND REMEDIES...............................................58
SECTION 6.01. Events of Default........................................58
SECTION 6.02. Acceleration.............................................60
SECTION 6.03. Other Remedies...........................................60
SECTION 6.04. Waiver of Past Defaults..................................61
SECTION 6.05. Control by Majority......................................61
SECTION 6.06. Limitation on Suits......................................61
SECTION 6.07. Rights of Holders of Notes to Receive Payment............62
SECTION 6.08. Collection Suit By Trustee...............................62
SECTION 6.09. Trustee May File Proofs of Claim.........................62
SECTION 6.10. Priorities...............................................63
SECTION 6.11. Undertaking for Costs....................................63
ARTICLE 7 TRUSTEE.............................................................63
SECTION 7.01. Duties of Trustee........................................63
SECTION 7.02. Rights of Trustee........................................65
SECTION 7.03. Individual Rights of Trustee.............................65
SECTION 7.04. Trustee's Disclaimer.....................................65
SECTION 7.05. Notice of Defaults.......................................66
SECTION 7.06. Reports By Trustee to Holders of the Notes...............66
SECTION 7.07. Compensation and Indemnity...............................66
SECTION 7.08. Replacement of Trustee...................................67
SECTION 7.09. Successor Trustee By Merger, etc.........................68
SECTION 7.10. Eligibility; Disqualification............................68
SECTION 7.11. Preferential Collection of Claims Against the
Company..................................................69
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT
DEFEASANCE.......................................................69
ii
<PAGE>
SECTION 8.01. Discharge of Indenture...................................69
SECTION 8.02. Option to Effect Legal Defeasance or Covenant
Defeasance...............................................69
SECTION 8.03. Legal Defeasance and Discharge...........................69
SECTION 8.04. Covenant Defeasance......................................70
SECTION 8.05. Conditions to Legal or Covenant Defeasance...............71
SECTION 8.06. Deposited Money and Government Securities To Be
Held in Trust; Other Miscellaneous Provisions............72
SECTION 8.07. Repayment to the Company.................................73
SECTION 8.08. Reinstatement............................................73
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER....................................73
SECTION 9.01. Without Consent of Holders of the Notes..................73
SECTION 9.02. With Consent of Holders of Notes.........................74
SECTION 9.03. Compliance With Trust Indenture Act......................75
SECTION 9.04. Revocation and Effect of Consents........................76
SECTION 9.05. Notation on or Exchange of Notes.........................76
SECTION 9.06. Trustee to Sign Amendments, etc..........................76
ARTICLE 10 SUBORDINATION......................................................76
SECTION 10.01. Agreement to Subordinate.................................76
SECTION 10.02. Liquidation; Dissolution; Bankruptcy.....................77
SECTION 10.03. Default on Designated Senior Debt........................77
SECTION 10.04. Acceleration of Notes....................................78
SECTION 10.05. When Distribution Must Be Paid Over......................78
SECTION 10.06. Notice By Company........................................79
SECTION 10.07. Subrogation..............................................79
SECTION 10.08. Relative Rights..........................................79
SECTION 10.09. Subordination May Not Be Impaired By Company.............79
SECTION 10.10. Distribution or Notice to Representative.................80
SECTION 10.11. Rights of Trustee and Paying Agent.......................80
SECTION 10.12. Authorization to Effect Subordination....................80
ARTICLE 11 GUARANTEE OF NOTES.................................................81
SECTION 11.01. Guarantees...............................................81
SECTION 11.02. Execution and Delivery of Guarantee......................82
SECTION 11.03. Guarantors May Consolidate, etc., on Certain
Terms....................................................82
SECTION 11.04. Releases Following Sale of Assets........................83
SECTION 11.05. Additional Guarantors....................................83
SECTION 11.06. Limitation On Guarantor Liability........................84
SECTION 11.07. "Trustee" To Include Paying Agent........................84
SECTION 11.08. Rights of Contribution...................................84
ARTICLE 12 SUBORDINATION OF GUARANTEES........................................85
SECTION 12.01. Agreement To Subordinate.................................85
iii
<PAGE>
SECTION 12.02. Liquidation; Dissolution; Bankruptcy.....................85
SECTION 12.03. Default on Designated Guarantor Senior Debt..............86
SECTION 12.04. Acceleration of Notes....................................86
SECTION 12.05. When Distribution Must Be Paid Over......................86
SECTION 12.06. Notice By Guarantor......................................87
SECTION 12.07. Subrogation..............................................87
SECTION 12.08. Relative Rights..........................................88
SECTION 12.09. Subordination May Not Be Impaired By Guarantor...........88
SECTION 12.10. Distribution or Notice to Representative.................88
SECTION 12.11. Rights of Trustee and Paying Agent.......................88
SECTION 12.12. Authorization To Effect Subordination....................89
ARTICLE 13 HOLDERS' LISTS.....................................................89
SECTION 13.01. Company to Furnish Trustee Names and Addresses
of Holders...............................................89
SECTION 13.02. Preservation of Information; Communications to
Holders..................................................89
ARTICLE 14 MISCELLANEOUS......................................................90
SECTION 14.01. Trust Indenture Act Controls.............................90
SECTION 14.02. Notices..................................................90
SECTION 14.03. Communication By Holders of Notes with Other
Holders of Notes.........................................92
SECTION 14.04. Certificate and Opinion as to Conditions Precedent.......92
SECTION 14.05. Statements Required in Certificate or Opinion............92
SECTION 14.06. Rules by Trustee and Agents..............................93
SECTION 14.07. No Personal Liability of Directors, Officers,
Employees and Stockholders; Benefits of Indenture........93
SECTION 14.08. Governing Law............................................94
SECTION 14.09. No Adverse Interpretation of Other Agreements............94
SECTION 14.10. Successors...............................................94
SECTION 14.11. Severability.............................................94
SECTION 14.12. Originals................................................94
SECTION 14.13. Table of Contents, Headings, etc.........................94
iv
<PAGE>
INDENTURE dated as of March 5, 1998 among CONMED Corporation, a
corporation duly organized and existing under the laws of the State of New York
(the "Company"), having its principal office at 310 Broad Street, Utica, New
York 13501, the Guarantors (as hereinafter defined) and First Union National
Bank, as trustee (the "Trustee") having its office at 10 State House Square,
Hartford, CT 06103.
RECITALS
The Company has duly authorized the creation of an issue of its 9%
Senior Subordinated Notes due 2008 (the "Notes") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company and each of
the Guarantors have duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, to make the Guarantees the valid obligations
of the Guarantors and to make this Indenture a valid agreement of the Company
and the Guarantors, in accordance with their terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, the Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the holders (the "Holders") of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined herein have the meanings assigned to them herein
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 generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
<PAGE>
as are generally accepted as consistently applied by the Company at
December 31, 1997;
(4) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles but shall
not include the accounts of Unrestricted Subsidiaries, except to the extent
of dividends and distributions actually paid to the Company or one of its
Wholly Owned Subsidiaries; 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, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person merges
with or into or becomes a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person,
and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or, indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means the Note Registrar or any Paying Agent.
"Asset Sale" means (i) the sale, lease, conveyance, or other disposition by
the Company or any of its Restricted Subsidiaries of any assets (including,
without limitation, by way of a sale and leaseback) other than in the ordinary
course of business (provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole shall be governed by the provisions of
Section 5.01 and not by the provisions of Section 4.10) and (ii) the issue or
sale by the Company or any of its Restricted Subsidiaries of Equity Interests of
any of the Company's Restricted Subsidiaries (other than directors' qualifying
shares), in the case of clauses (i) and (ii), whether in a single transaction or
a series of related transactions (a) that have a fair market value in excess of
$5.0 million or (b) for Net Proceeds in excess of $5.0 million. Notwithstanding
the foregoing: (i) a transfer of assets by the Company to a Restricted
Subsidiary, by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary or a Holding Company Restructuring; (ii) an issuance of Equity
Interests by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (iii) a Restricted
-2-
<PAGE>
Payment that is permitted by Section 4.07; (iv) the sale and leaseback of any
assets within 90 days of the acquisition of such assets; (v) a sale of
Receivables and Related Assets to or by a Securitization Subsidiary in
connection with a Permitted Receivable Financing; (vi) any disposition of
property in the ordinary course of business by the Company or any of its
Restricted Subsidiaries that, in the good faith judgment of management of the
Company, has become obsolete or worn out; (vii) any disposition of inventory in
the ordinary course of business; (viii) any exchange by the Company or any
Restricted Subsidiary of assets for assets of another Person (provided, that (A)
all or substantially all of the property received by the Company or any
Restricted Subsidiary in such exchange is of a type used in a Related Business
(or constitutes Capital Stock of a Person engaged in a Related Business or
cash), (B) no Default or Event of Default shall have occurred and be continuing
as a result of such exchange, (C) a majority of the Board of Directors of the
Company shall have determined in their good faith judgment that such exchange is
fair to the Company or the applicable Restricted Subsidiary, as the case may be,
(D) in the event the Company or a Restricted Subsidiary, as the case may be,
receives any Capital Stock of a Person pursuant to such exchange, if such Person
does not become a Restricted Subsidiary of the Company by virtue of such
exchange, then such exchange shall be deemed to be a Restricted Payment by the
Company reducing the Restricted Payments basket under clause (c) of the first
paragraph of Section 4.07 hereof, and (E) in the event the Company or a
Restricted Subsidiary, as the case may be, receives cash pursuant to such
exchange, such cash received shall be applied in the manner applicable to Net
Proceeds from Asset Sales pursuant to Section 4.10 hereof); (ix) any loans or
other transfers of equipment to customers of the Company for use with the
Company's disposable medical products; provided, that the fair market value of
any such equipment loaned or otherwise transferred to any one customer in any
one year shall not exceed $5.0 million in the aggregate; and (x) the sale or
issuance of a minimal number of any Foreign Subsidiary's Equity Interests to a
foreign national to the extent required by local law or in a jurisdiction
outside of the United States, will not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be so
-3-
<PAGE>
required to be capitalized on the balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any similar participation in profits or
losses or equity of a Person.
"Cash Equivalents" means (i) U.S. dollars, (ii) securities issued or
directly and fully guaranteed or insured by the U.S. government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any commercial bank or trust company having capital and
surplus in excess of $300 million, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution meeting
the qualifications specified in clause (iii) above, (v) commercial paper having
the highest rating obtainable from Moody's Investors Service, Inc. ("Moody's")
or Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies,
Inc. ("S&P") and in each case maturing within one year after the date of
acquisition, (vi) investment funds investing 95% of their assets in securities
of the types described in clauses (i)-(v) above, (vii) readily marketable direct
obligations issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either Moody's or S&P and (viii) Indebtedness with a rating of "A" or
higher from S&P or "A2" or higher from Moody's.
"Change of Control" means the occurrence of any of the following: (i) any
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation) 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 defined in Section 13(d) of the Exchange Act) or
"group" (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act); (ii)
the adoption of a plan for the liquidation or dissolution of the Company; (iii)
the Company consolidates with, or merges with or into, another "person" (as
defined above) or "group" (as defined above) in a transaction or series of
related transactions in which the Voting Stock of the Company is converted into
or exchanged for cash, securities or other property, other than a Holding
Company Restructuring or any transaction where (A) the outstanding Voting Stock
of the Company is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee corporation and (B) either
(1) the "beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of the outstanding Voting Stock of the Company immediately prior
to such transaction own beneficially, directly or indirectly through one or more
Subsidiaries, not less than a majority of the total outstanding Voting Stock of
the surviving or transferee corporation immediately after such transaction or
(2) if, immediately prior to such transaction the Company is a direct or
indirect Subsidiary of any other Person (each such other Person, the "Holding
Company"), the "beneficial owners" (as defined above) of the outstanding Voting
Stock of such Holding
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Company immediately prior to such transaction own beneficially, directly or
indirectly through one or more Subsidiaries, not less than a majority of the
outstanding Voting Stock of the surviving or transferee corporation immediately
after such transaction; (iv) the consummation of any transaction or series of
related transactions (including, without limitation, by way of merger or
consolidation) the result of which is that any "person" (as defined above) or
"group" (as defined above) becomes the "beneficial owner" (as defined above) of
more than 50% of the voting power of the Voting Stock of the Company or (v)
during any consecutive two-year period, the first day on which a majority of the
members of the Board of Directors of the Company who were members of the Board
of Directors of the Company at the beginning of such period are not Continuing
Directors.
"Commission" means the Securities and Exchange Commission, as 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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument 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 an Officer of the Company, and delivered to
the Trustee.
"Consolidated EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, plus, to the extent deducted in computing Consolidated Net Income, (i)
the provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, (ii) Consolidated Interest Expense of
such Person for such period, (iii) depreciation and amortization (including
amortization of goodwill, organization costs, covenants not to compete and other
intangibles) and all other non-cash charges (excluding any such non-cash charge
to the extent that it represents an accrual of or reserve for cash charges in
any future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such period and
(iv) the effect of any write-ups of inventory balances of such Person and its
Restricted Subsidiaries in connection with an acquisition accounted for as a
purchase transaction, in each case, on a consolidated basis determined in
accordance with GAAP. Notwithstanding the foregoing, the provision for taxes
based on the income or profits of, and the depreciation and amortization and
other non-cash charges of, a Restricted Subsidiary of a Person shall be added to
Consolidated Net Income to compute Consolidated EBITDA only to the extent (and
in the same proportion) that the Net Income of such Restricted Subsidiary was
included in calculating the Consolidated Net Income of such Person.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the interest expense of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP
(including amortization of original
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issue discount, non-cash interest payments, the interest component of all
payments associated with Capital Lease Obligations, net payments, if any,
pursuant to Hedging Obligations and imputed interest with respect to
Attributable Debt and excluding amortization of deferred financing costs.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to the referent Person or a Restricted Subsidiary thereof in
cash, (ii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
included, (iii) the cumulative effect of a change in accounting principles shall
be excluded, (iv) the portion of net income of the Company and its Consolidated
Subsidiaries allocable to investments in unconsolidated Persons to the extent
that cash dividends or distributions have not actually been received by the
Company or one of its Consolidated Subsidiaries shall be excluded until such
cash is received and (v) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of Net Income is not, at the date of
determination, permitted without any prior governmental approval (which has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement (other than any Credit Agreement), instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the relevant Person who (i) was a member of such
Board of Directors on the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 14.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agreement" means the Credit Facility and one or more borrowing
arrangements to be entered into by and between the Company and/or one or more of
its Subsidiaries and a commercial bank or other institutional lender, including
any related notes, security documentation, guarantees, letters of credit,
collateral documents, instruments and agreements executed in connection
therewith, including any appendices, exhibits or schedules to any of the
foregoing, and in each case as such agreements may be amended, modified,
supplemented or restated from time to time, or refunded, refinanced, restricted,
replaced, renewed, repaid or extended from time to time (whether with the
original agents and lenders or other agents or lenders or otherwise, and whether
provided under the original credit agreement or credit agreements and whether
for the same or a different amount or
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otherwise) on one or more occasions.
"Credit Facility" means that certain credit agreement, providing for up to
$450 million aggregate principal amount of borrowings, dated as of December 29,
1997 and as amended through the date hereof, by and among the Company, certain
Subsidiaries, the several lenders party thereto, Chase Securities Inc., as
arranger and syndication agent, Salomon Brothers Holding Company, Inc, as
documentation agent, and The Chase Manhattan Bank, as administrative agent, and
any related notes, security documentation, guarantees, letters of credit,
collateral documents, instruments and agreements executed in connection
therewith, including any appendices, exhibits or schedules to any of the
foregoing, and in each case as such agreements may be amended, modified,
supplemented or restated from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid or extended from time to time (whether
with the original agents and lenders or other agents or lenders or otherwise,
and whether provided under the original credit agreement or other credit
agreements and whether for the same or a different amount or otherwise) on one
or more occasions.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Definitive Notes" means any Notes other than a Global Note.
"Depositary" means, with respect to Notes issuable or issued in whole or in
part in global form hereunder, unless otherwise specified by the Company
pursuant to Section 2.12, The Depository Trust Company, New York, New York, or
any successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Designated Guarantor Senior Debt" means, with respect to any Guarantor,
(i) so long as any Indebtedness of such Guarantor is outstanding under the
Credit Facility, such Indebtedness, and (ii) any other Guarantor Senior Debt
permitted hereunder the principal amount of which is $25.0 million or more and
that has been designated by the Guarantor as "Designated Guarantor Senior Debt."
"Designated Senior Debt" means (i) so long as any Indebtedness is
outstanding under the Credit Facility, such Indebtedness and (ii) any other
Senior Debt permitted hereunder the principal amount of which is $25.0 million
or more and that has been designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (other than an event
which would constitute a Change of Control), matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof (except, in each case, upon the
occurrence of a Change of Control) on or prior to the final maturity date of the
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Notes.
"Equity Interests" means Capital Stock and all warrants, options or other
rights (including rights under a shareholder rights plan) to acquire Capital
Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).
"Excess Amount" means, with respect to any Credit Facility, the amount by
which aggregate payments of principal made thereunder exceed the aggregate
payments of principal required to be made through the date of determination, in
respect of any term Indebtedness, under the amortization schedule of such Credit
Facility.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means Notes having terms substantially identical in all
material respects to the Rule 144A Notes for which they are to be exchanged in
the Exchange Offer, except that (i) the Exchange Notes will have been registered
under the Securities Act and, therefore, will not bear legends restricting the
transfer thereof, and (ii) Holders of Exchange Notes will not be entitled to
certain rights of holders of Rule 144A Notes under the Registration Rights
Agreement.
"Exchange Offer" means the registration by the Company under the Securities
Act of the Exchange Notes pursuant to the Exchange Offer Registration Statement
under which the Company shall offer the Holders of all Outstanding Notes the
opportunity to exchange all such Outstanding Notes for Exchange Notes in an
aggregate principal amount equal to the aggregate principal amount of the Notes
tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement" means the registration statement
relating to the Exchange Offer, including the related prospectus.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than the Indebtedness under the Credit Facility)
in existence on the date hereof until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (i) the Consolidated Interest Expense of such Person for such period and (ii)
any interest expense on Indebtedness of another Person that is (A) guaranteed by
the referent Person or one of its Restricted Subsidiaries (whether or not such
guarantee is called upon) (other than guarantees permitted under clause (xvi) of
the second paragraph under Section 4.09 hereof) or (B) secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries (whether or not such
Lien is called upon); provided that with respect to clause (ii)(B), the amount
of Indebtedness (and attributable interest expense) shall be equal to the lesser
of (I) the principal amount of the Indebtedness secured by the assets of such
Person or one of its Restricted Subsidiaries and (II) the fair market value (as
determined by the Board of Directors of such Person and set forth in an
Officer's Certificate delivered to the Trustee) of the assets securing such
Indebtedness and (iii) the product of (a) all cash dividend payments (and
non-cash
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dividend payments in the case of a Person that is a Restricted Subsidiary) on
any series of preferred stock of such Person, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of the Consolidated EBITDA of such Person and its Restricted
Subsidiaries for such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that the Company or any of
its Restricted Subsidiaries incurs, assumes, guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues or redeems
preferred stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated, but on or prior to the date on which
the event for which the calculation of the Fixed Charge Coverage Ratio is made
(the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. For purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have occurred on the first day of the four-quarter reference
period and shall give pro forma effect to the Indebtedness and the Consolidated
EBITDA of the Person which is the subject of any such acquisition, (ii) the
Consolidated EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, (iii) Consolidated Interest Expense
attributable to interest on any Indebtedness (whether existing or being
incurred) computed on a pro forma basis and bearing a floating interest rate
shall be computed as if the rate in effect on the Calculation Date had been the
applicable rate for the entire period, (iv) pro forma effect shall be given to
Asset Sales and asset acquisitions (including giving pro forma effect to the
application of the proceeds of any Asset Sale) that occur during such period or
thereafter and on or prior to the Calculation Date as if they had occurred and
such proceeds had been applied on the first day of such period, and (v) pro
forma effect shall be given to Asset Sales and asset acquisitions (including
giving pro forma effect to the application of proceeds of any Asset Sale and any
related financing in connection with any asset acquisition) that have been made
by any Person that has become a Restricted Subsidiary or has been merged with or
into the Company or any Restricted Subsidiary during such four-quarter reference
period or subsequent to such period and prior to the Calculation Date and that
would have constituted Asset Sales or acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such Asset Sales or
asset acquisitions were Asset Sales or asset acquisitions that occurred on the
first day of such period as if they had occurred on the first day of such
period.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
organized
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and existing under the laws of any jurisdiction outside the United States.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Committee on Auditing Procedures and the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board, the Commission or in such other opinions, pronouncements or
statements by such other entities, including practice within the profession, as
may be approved or followed by a significant segment of the accounting
profession of the United States, which are in effect or followed from time to
time. All determinations (including all ratios and computations) based on GAAP
contained herein shall be computed in conformity with GAAP as in effect on
December 31, 1997.
"Global Note" means a Note which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and pursuant to
a Company Order, which shall be registered in the name of the Depositary or its
nominee and which shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the Notes or any portion thereof,
but not including any Notes that are no longer Outstanding, and having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due, and rate of interest.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof but excluding contractual indemnity
obligations, of all or any part of any indebtedness) in accordance with GAAP.
"Guarantee" means the guarantee of the Notes by the Guarantors pursuant to
Article 11.
"Guarantee Obligations" means any principal, interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
date provided in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable with
respect to the Guarantees.
"Guarantor" means each of (i) the Subsidiaries of the Company (other than
Foreign Subsidiaries, Immaterial Subsidiaries and Securitization Subsidiaries)
in existence on the date hereof and (ii) any future Restricted Subsidiary (other
than Foreign Subsidiaries, Immaterial Subsidiaries and Securitization
Subsidiaries) and their respective successors and assigns.
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"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or foreign exchange rates and (iii) indemnity agreements and arrangements
entered into in connection with the agreements and arrangements described in
clauses (i) and (ii).
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Holding Company Restructuring" means any merger, consolidation or similar
transaction (including a share exchange under state law) or series of mergers,
consolidations or similar transactions (including share exchanges pursuant to
state law) involving the Company, its Restricted Subsidiaries and/or any other
"person" (as defined in Section 13(d) of the Exchange Act) consummated
principally for the purpose of reorganizing the Company's operations under a
holding company structure where (a) the outstanding Voting Stock of the Company
is converted into or exchanged for Voting Stock (other than Disqualified Stock)
of the surviving or transferee corporation (the "New Holding Company");
provided, that the "beneficial owners" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) of the outstanding Voting Stock of the Company
immediately prior to such transaction(s) own beneficially, directly or
indirectly through one or more "persons" (as defined above), all of the total
outstanding Voting Stock of the New Holding Company immediately after such
transaction and (b) the Guarantee of each Subsidiary of the Company that becomes
a Subsidiary of the New Holding Company as a result of such transaction shall
not be terminated in connection with such transaction.
"Immaterial Subsidiary" means any Restricted Subsidiary designated by the
Company as an Immaterial Subsidiary and which would not be a "significant
subsidiary" under Rule 1-02(w) of Regulation S-X, substituting all references in
such Rule to 10% with 5%; provided, that the Company may not designate any
Restricted Subsidiary as an Immaterial Subsidiary if, giving effect to such
designation, the combined total assets (determined in accordance with GAAP) of
the Company and the Guarantors would represent less than 80% of the combined
total assets (determined in accordance with GAAP) of the Company and the
Restricted Subsidiaries (excluding Foreign Subsidiaries). Any Immaterial
Subsidiary which subsequent to its designation as such ceases to meet the
foregoing criteria shall thereupon cease to be an Immaterial Subsidiary and
shall become a Guarantor.
"Incur" or "incur" means, with respect to any Indebtedness (including
Acquired Debt or Disqualified Stock), to create, incur, issue, assume, guaranty
or otherwise become directly or indirectly liable for or with respect to, or
become responsible for, the payment of such Indebtedness (including Acquired
Debt or Disqualified Stock); provided that (i) neither the accrual of interest
nor the accretion of original issue discount shall be considered an incurrence
of Indebtedness and (ii) the assumption of Indebtedness by the surviving entity
of a transaction permitted by Section 11.03(a) hereof or the last sentence of
Section 5.01 hereof in existence at the time of such transaction shall not be
deemed an incurrence of Indebtedness. The term "incurrence" has a corresponding
meaning.
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"Indebtedness" means, with respect to any Person without duplication, (a)
any indebtedness of such Person, whether or not contingent (but excluding
contractual indemnity obligations), in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing Capital Lease
Obligations or the deferred and unpaid balance of the purchase price of any
property, except Indebtedness shall not include any such balance that
constitutes an accrued expense or trade payable, or representing any Hedging
Obligations if and to the extent any of the foregoing indebtedness (other than
letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, (b) all
indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) and (c) the maximum fixed
repurchase price of Disqualified Stock issued by such Person and the liquidation
preference of preferred stock issued by such Person, in each case if held by any
Person other than the Company or a Restricted Subsidiary of the Company, and, to
the extent not otherwise included, the guarantee by such Person of any such
indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Interest Payment Date" shall have the meaning assigned to such term in the
Notes.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding loans to directors,
officers or employees (but not any forgiveness thereof) and commissions, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company for consideration consisting of common equity securities of the
Company shall not be deemed to be an Investment. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company, or any
Restricted Subsidiary of the Company issues Equity Interests, such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale, disposition or issuance equal to the
fair market value of the Equity Interests of such Person held by the Company or
such Restricted Subsidiary immediately following any such sale, disposition or
issuance.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday,
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and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP, excluding, however, (i) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries and (ii) any extraordinary, unusual or nonrecurring gain, charge,
expense or loss, together with any related provision for taxes on such
extraordinary, unusual or nonrecurring gain, charge, expense or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, amounts
required to be applied to the repayment of Indebtedness (other than long-term
Indebtedness of a Restricted Subsidiary of such Person and Indebtedness under
the Credit Facility) secured by a Lien on the asset or assets that are the
subject of such Asset Sale and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity;
and (ii) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian for the Depositary with
respect to the Notes in global form, or any successor entity thereto.
"Note Register" and "Note Registrar" have the respective meanings specified
in
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Section 2.03.
"Notes" means the Rule 144A Notes and Exchange Notes issued under this
Indenture. The Rule 144A Notes and the Exchange Notes shall constitute one class
of securities for all purposes, will vote and consent together on all matters as
one class and will not have the right to vote or consent as a separate class on
any matter.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages, guarantees and other liabilities
payable under the documentation governing any Indebtedness, in each case whether
now or hereafter existing, renewed or restructured, whether or not from time to
time decreased or extinguished and later increased, created or incurred, whether
or not arising on or after the commencement of a proceeding under Bankruptcy Law
(including post-petition interest) and whether or not allowed or allowable as a
claim in any such proceeding.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice President of such Person.
"Officer's Certificate" means a certificate signed on behalf of the Company
by an Officer of the Company and otherwise meeting the requirements, if any, of
the Trust Indenture Act delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes 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 Notes; provided that, if such Notes 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; and
(iii) Notes which have been paid pursuant to Section 2.06 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona
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fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Guarantor 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 or waiver, only
Notes which the Trustee knows to be so owned shall be so disregarded. Notes 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 Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Guarantor or guarantor of such other
obligor.
"Pari Passu Indebtedness" means Indebtedness of the Company which ranks
pari passu in right of payment with the Notes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, and premium, if any, or interest on any Notes on behalf of the
Company.
"Permitted Investments" means (i) Investments in the Company or in a
Restricted Subsidiary of the Company (including, without limitation, guarantees
of the Indebtedness and/or other Obligations of the Company and/or any
Restricted Subsidiary of the Company, so long as such Indebtedness and/or other
Obligations are permitted hereunder); (ii) Investments in Cash Equivalents;
(iii) Investments by the Company or any Restricted Subsidiary of the Company in,
or the purchase of the securities of, a Person if, as a result of such
Investment, (a) such Person becomes a Restricted Subsidiary of the Company or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company; (iv) Investments in
accounts and notes receivable acquired in the ordinary course of business; (v)
any non-cash consideration received in connection with an Asset Sale that
complies with Section 4.10 hereof; (vi) Investments in connection with Hedging
Obligations permitted to be incurred under Section 4.09 hereof; (vii)
Investments outstanding on the date hereof; (viii) Investments not to exceed
$25.0 million at any one time; (ix) in the event the Company or any Restricted
Subsidiary maintains any unfunded deferred compensation plan (within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, as amended),
to the extent benefits under such plan are defined by reference to specific
investments, whether at the participant's or the beneficiaries' election or
otherwise, any Investment in such a specific investment; (x) extensions of trade
credit in the ordinary course of business; (xi) investments (including debt
obligations and Equity Interests) by the Company or any Restricted Subsidiary
received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business; and
(xii) guarantees (other than those referred to in clause (i) above) permitted to
be incurred by the Company or any Restricted Subsidiary pursuant to Section 4.09
hereof.
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"Permitted Junior Securities" shall mean debt or equity securities of the
Company or any successor corporation issued pursuant to a plan of reorganization
or readjustment of the Company that are subordinate to the payment of all then
outstanding Senior Debt at least to the same extent that the Notes are
subordinated to the payment of all Senior Debt on the Closing Date, so long as
(i) the effect of the use of this defined term in the subordination provisions
contained in Article 10 hereof is not to cause the Notes to be treated as a part
of (a) the same class of claims as the Senior Debt or (b) any class of claims
pari passu with, or senior to, the Senior Debt for any payment or distribution
in any case or proceeding or similar event relating to the liquidation,
insolvency, bankruptcy, dissolution, winding up or reorganization of the Company
and (ii) to the extent that any Senior Debt outstanding on the date of
consummation of any such plan of reorganization or readjustment is not paid in
full in cash on such date, either (a) the holders of any such Senior Debt not so
paid in full in cash have consented to the terms of such plan of reorganization
or readjustment or (b) such holders receive securities which constitute Senior
Debt and which have been determined by the relevant court to constitute
satisfaction in full in money or money's worth of any Senior Debt not paid in
full in cash.
"Permitted Liens" means (i) Liens on property of the Company and any
Restricted Subsidiary securing (a) Senior Debt and/or (b) Hedging Obligations
permitted to be incurred hereunder pursuant to Section 4.09 hereof; (ii) Liens
in favor of the Company or any of its Restricted Subsidiaries; (iii) Liens on
property of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided, that such Liens were not incurred in connection with, or in
contemplation of, such merger or consolidation and do not extend to any assets
of the Company or any Restricted Subsidiary of the Company other than the assets
acquired in such merger or consolidation; (iv) Liens on property of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company;
provided that such Liens were not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and do not extend
to any assets of the Company or any other Restricted Subsidiary of the Company;
(v) Liens on property existing at the time of acquisition thereof by the Company
or any Restricted Subsidiary of the Company; provided that such Liens were not
incurred in connection with, or in contemplation of, such acquisition and do not
extend to any assets of the Company or any of its Restricted Subsidiaries other
than the property so acquired; (vi) Liens imposed by law, including Liens to
secure the performance of statutory obligations, surety or appeal bonds or
performance bonds, or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's, or other like Liens, in any case incurred in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate process of law, if a reserve or
other appropriate provision, if any, as is required by GAAP shall have been made
therefor; (vii) Liens existing on the date hereof; (viii) pledges or deposits by
such Person under worker's compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such
Person or deposits of cash or United States government bonds to secure surety or
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of
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rent, in each case incurred in the ordinary course of business; provided that
any reserve or other appropriate provision as required in conformity with GAAP
shall have been made therefor; (ix) Liens for property taxes not yet subject to
penalties for non-payment or which are being contested in good faith and by
appropriate proceedings; provided that any reserve or other appropriate
provision as required in conformity with GAAP shall have been made therefor; (x)
Liens in favor of issuers of surety bonds or commercial letters of credit issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business which encumber documents and other property or assets
relating to such letters of credit and products and proceeds therefor; (xi)
minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others for licenses, rights of way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real property or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not in the aggregate
materially impair their use in the operation of the business of such Person;
(xii) Liens securing Indebtedness incurred to finance the construction, purchase
or lease of, or repairs, improvements or additions to, inventory or other
property of such Person; provided that the Lien may not extent to any other
property owned by such Person or any of its Subsidiaries at the time the Lien is
incurred; (xiii) Liens on Receivables and Related Assets to reflect sales of
Receivables and Related Assets to and by a Securitization Subsidiary pursuant to
a Permitted Receivables Financing or securing Indebtedness permitted by clause
(xiii) of the second paragraph of Section 4.09 hereof; (xiv) Liens securing
Indebtedness represented by any industrial revenue bonds, pollution control
bonds or other tax exempt financing; provided, that the aggregate amount of any
Indebtedness to which such Liens relate at any one time outstanding shall not
exceed $10.0 million; (xv) Liens to secure (A) Indebtedness (including Capital
Lease Obligations) permitted by clause (iv) of the second paragraph of Section
4.09 hereof covering only the assets acquired with such Indebtedness or the
assets which are the subject of the sale leaseback transaction, as the case may
be, and (B) Indebtedness of any Restricted Subsidiary (other than a Guarantor)
permitted to be incurred by such Restricted Subsidiary pursuant to the
provisions contained in Section 4.09 hereof; (xvi) Liens incurred by the Company
or any Restricted Subsidiary of the Company with respect to obligations not
constituting Indebtedness for borrowed money that do not exceed $10.0 million in
the aggregate at any one time outstanding; (xvii) Liens securing Indebtedness
incurred to refinance Indebtedness that has been secured by a Lien permitted
hereunder; provided that (a) any such Lien shall not extend to or cover any
assets or property not securing the Indebtedness so refinanced and (b) the
refinancing Indebtedness secured by such Lien shall have been permitted to be
incurred under Section 4.09 hereof; (xviii) Liens in favor of the lessee on
instruments which are the subject of leases entered into in the ordinary course
of business; provided that any such Lien shall not extend to or cover any assets
or property of the Company and its Restricted Subsidiaries that is not the
subject of any such lease; (xix) Liens to secure Attributable Debt and/or that
are permitted to be incurred pursuant to Section 4.13 hereof; provided that any
such Lien shall not extend to or cover any assets of the Company or any
Guarantor other than the assets which are the subject of the sale leaseback
transaction in which the Attributable Debt is incurred; and (xx) Liens to secure
other Indebtedness; provided, that the aggregate amount of any Indebtedness to
which such Liens
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relate at any one time outstanding shall not exceed $15.0 million.
"Permitted Receivables Financing" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Restricted Subsidiary and finances such Receivables and Related
Assets or a fractional undivided interest in the Receivables and Related Assets;
provided that (i) the Board of Directors shall have determined in good faith
that such Permitted Receivables Financing is economically fair and reasonable to
the Company and the Securitization Subsidiary, (ii) all sales of Receivables and
Related Assets to or by the Securitization Subsidiary are made at fair market
value (as determined in good faith by the Board of Directors), (iii) the
financing terms, covenants, termination events and other provisions thereof
shall be market terms (as determined in good faith by the Board of Directors),
(iv) no portion of the Indebtedness of a Securitization Subsidiary is guaranteed
by or is recourse to the Company or any Restricted Subsidiary (other than
recourse for customary representations, warranties, covenants and indemnities,
none of which shall relate to the collectibility of the Receivables and Related
Assets) and (v) neither the Company nor any Subsidiary has any obligation to
maintain or preserve the Securitization Subsidiary's financial condition.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of premiums, accrued interest and reasonable fees and expenses incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes and has a final maturity date that is later than the final
maturity date of, and is subordinated in right of payment to, the Notes on terms
at least as favorable in the aggregate to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iv) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded ranks pari
passu in right of payment with the Notes and has a final maturity date that is
later than the final maturity date of the Notes, such Permitted Refinancing
Indebtedness has a final maturity date that is later than the final maturity
date of, and ranks pari passu with, or is subordinated in right of payment to,
the Notes on terms at least as favorable in the aggregate to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (v) if such
Indebtedness is incurred by the Company, the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded may not be a
Restricted Subsidiary.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Receivables and Related Assets" means accounts receivable and instruments,
chattel paper, obligations, general intangibles and other similar assets, in
each case, relating to such receivables, including interests in merchandise or
goods, the sale or lease of which gave rise to such receivables, related
contractual rights, guarantees, insurance proceeds, collections, other related
assets and proceeds of all of the foregoing.
"Redeemable Capital Stock" means any shares of any class or series of
Capital Stock, that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be required to be
redeemed prior to the Stated Maturity with respect to the principal of any Note
or is redeemable at the option of the holder thereof at any time prior to any
such Stated Maturity, or is convertible into or exchangeable for debt securities
at any time prior to any such Stated Maturity.
"Registration Rights Agreement" means the Registration Rights Agreement
dated March 5, 1998 by and between the Company and Salomon Brothers Inc and
Chase Securities Inc., as Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time.
"Regular Record Date", for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Related Business" means a business, the majority of whose revenues result
from the manufacturing, distribution or sale of medical products and equipment
or any business reasonably related or incident thereto.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt or Guarantor Senior Debt.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means (i) any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary or (ii) any Subsidiary of a New Holding
Company so long as the Holding Company is a Guarantor.
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"Rule 144A Notes" means the Company's 9% Senior Subordinated Notes due
2008, as initially issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Subsidiary" means any Subsidiary created for the limited
purpose of acquiring and financing Receivables and Related Assets and engaging
in activities ancillary thereto, so long as it: (a) has no Indebtedness other
than Non-Recourse Debt and (b) is a Person with respect to which neither the
Company nor any of its other Subsidiaries has any direct obligation to maintain
or preserve such Person's financial condition. If, at any time, such
Securitization Subsidiary would fail to meet the foregoing requirements as a
Securitization Subsidiary, it shall thereafter cease to be a Securitization
Subsidiary for purposes of this Indenture and any Indebtedness of such
Securitization Subsidiary shall be deemed to be incurred by a Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant).
"Senior Debt" means, (a) with respect to the Company and as used in Article
10 hereof, (i) all Obligations under or in respect of the Credit Facility
permitted to be incurred hereunder at the time incurred pursuant to Section 4.09
hereof and (ii) any other Indebtedness permitted to be incurred by the Company
hereunder and any Hedging Obligation permitted to be incurred hereunder, unless
the instrument under which the foregoing is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes, and (b)
with respect to any Guarantor and as used in Article 12 hereof, (i) all
Obligations permitted under or in respect of the Credit Facility permitted to be
incurred at the time incurred pursuant to Section 4.09 hereof and (ii) any other
Indebtedness permitted to be incurred by such Guarantor hereunder and any
Hedging Obligation permitted to be incurred hereunder, unless the instrument
under which the foregoing is incurred expressly provided that such Indebtedness
is on parity with or subordinated in right of payment to the Guarantee of such
Guarantor. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (w) any liability for federal, state, local or other
taxes, (x) any Indebtedness of the Company or any Guarantor to the Company or
any Subsidiary of the Company or any of their respective Affiliates, (y) any
trade payables, or (z) any Indebtedness of the type described in clauses (a)
(ii) and (b) (ii) of the preceding sentence that is incurred in violation of the
terms of this Indenture, provided, that this clause (z) shall not be read to
negate the requirement in clauses (a) (i) and (b) (i) of the preceding sentence
that Obligations under or in respect of the Credit Facility be permitted at the
time incurred under Section 4.09 hereof to qualify as Senior Debt.
"Shelf Registration Statement" means the Registration Statement with
respect to the Notes which the Company may be required to file pursuant to the
Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to
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the Securities Act, as such Regulation is in effect on the date hereof.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Voting Stock is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or one
or more Subsidiaries of such Person (or any combination thereof).
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this Indenture
is qualified under the TIA, except as provided in Section 9.03; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" or "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the legend set forth in Section 2.05
hereof.
"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
such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary: (i) has no
Indebtedness other than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company relating to a transaction or series of related
transactions having a transaction value in excess of $2.0 million, unless the
terms of any such agreement, contract, arrangement or understanding are, in the
good faith judgment of the Board of Directors of the Company, no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (iii) is a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (iv) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. Any such designation by the Board of
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Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.07 hereof. If, at any time,
any Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09 hereof, the Company shall be in default of such covenant
from the date of such incurrence). The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and
(ii) no Default or Event of Default would be in existence following such
designation.
"Voting Stock" means any class or classes of Capital Stock 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 any 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 then outstanding
principal amount of such Indebtedness into (ii) the total of the product
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Term Defined in Section
---- ------------------
"Acceleration Notice" 6.02
"Act" 2.08
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.14
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"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Commencement Date" 3.09
"Covenant Defeasance" 8.03
"Event of Default" 6.01
"Excess Funding Guarantor" 11.08
"Excess Payment" 11.08
"Excess Proceeds" 4.10
"Legal Defeasance" 8.02
"Mandatory Repayment" 4.07
"non-payment default" 10.03
"Offer Amount" 3.09
"Offer Period" 3.09
"pay" 10.02
"payment" 10.02
"Payment Blockage Notice" 10.03
"payment default" 10.03
"Payment Default" 6.01
"Pro Rata Share" 11.08
"Purchase Date" 3.09
"Restricted Payments" 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
unless otherwise defined herein have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires,
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) provisions apply to successive events and transactions;
(d) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement of successor sections or rules
adopted by the Commission from time to time; and
(e) for purposes of making any determination of any amount under any
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single definition set forth in Section 1.01 hereof, such determination shall be
made without double counting of any item; provided that with respect to the
definition of "Fixed Charge Coverage Ratio" it shall not be deemed to be double
counting if an item is included in the calculation of each of "Consolidated
EBITDA" and "Fixed Charges."
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Rule 144A Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A. Subject to Section 2.06, the
Rule 144A Notes shall be in an aggregate principal amount no greater than
$130,000,000; provided, that if Exchange Notes are issued hereunder pursuant to
the Exchange Offer, the aggregate maximum principal amount of Rule 144A Notes
shall be reduced by the principal amount of Exchange Notes so issued. The
Exchange Notes, when and if issued, and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B. Subject to
Section 2.06, the Exchange Notes shall be in an aggregate principal amount no
greater than $130,000,000 less the aggregate principal amount of Rule 144A Notes
not exchanged for the Exchange Notes in the Exchange Offer. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The Notes may be initially issued either in the form of a Global Note
or Notes or in the form of Definitive Notes or both. A Global Note shall
represent such of the Outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of Outstanding Notes from
time to time endorsed thereon and that the aggregate amount of Outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
Outstanding Notes represented thereby shall be made by the Trustee or an Agent
thereof, at the direction of the Trustee, in accordance with written
instructions given by the Holder thereof. Definitive Notes shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the Officers
executing such Notes, as evidenced by their execution of such Notes.
The Rule 144A Notes and the Exchange Notes shall constitute one class
of securities for all purposes, will vote and consent together on all matters as
one class and will not have the right to vote or consent as a separate class on
any matter.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly
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agree to such terms and provisions and to be bound thereby.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
Notes 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 Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
The Trustee shall authenticate Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Notes, upon receipt of a
Company Order. The aggregate principal amount of Notes Outstanding at any time
may not exceed such amount.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained through the
Trustee or such other Person as may be appointed hereunder a register (the
register maintained in such office and in any other office or agency designated
pursuant hereto being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Trustee is hereby appointed "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. The Company shall
also maintain or cause to be maintained through the Trustee or such other Person
as may be
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appointed hereunder an office or agency where Notes may be presented for payment
("Paying Agent"). The Note Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Note Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Note Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture, such notification to be delivered,
together with a certificate of such Agent that it agrees to perform its duties
in accordance with the procedures established by the Trustee and with the terms
of this Indenture, to the Trustee prior to the date such Agent assumes its
duties hereunder. If the Company fails to appoint or maintain another entity as
Note Registrar or Paying Agent, the Trustee shall act as such. The Company or
any of its Subsidiaries may act as Paying Agent or Note Registrar.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) With respect to the transfer and exchange of Definitive Notes: when
Definitive Notes are presented to the Trustee with the request (x) to register
the transfer of the Definitive Notes or (y) to exchange such Definitive Notes
for an equal principal amount of Definitive Notes of other authorized
denominations, the Trustee shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided, however,
that the Definitive Notes presented or surrendered for register of transfer or
exchange:
(A) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Trustee duly executed
by the Holder thereof or by its attorney, duly authorized in writing; and
(B) shall, in the case of Transfer Restricted Securities that
are Definitive Notes, except if exchanged for an Exchange Note in the
Exchange Offer, be accompanied by the following additional information and
documents, as
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applicable:
(1) if such Transfer Restricted Security is being delivered
to the Note Registrar by a Holder for registration in the name
of such Holder, without transfer, a certification from such
Holder to that effect (in substantially the form of Exhibit C
hereto); or
(2) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in reliance on Rule
144A under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit C hereto); or
(3) if such Transfer Restricted Security is being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (in substantially the form of Exhibit C hereto) and an
opinion of counsel reasonably acceptable to the Company and to
the Note Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) The following restrictions apply to any transfer of a Definitive
Note for a beneficial interest in a Global Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Note except until and upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
(A) if such Definitive Note is a Transfer Restricted Security
and such transfer is not being made in connection with the Exchange Offer,
certification, substantially in the form of Exhibit C hereto, that such
Definitive Note is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act; and
(B) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to make an
endorsement on the Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, in accordance with
the standing instructions and procedures existing between it and the Depositary,
the aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then Outstanding, the Company
shall issue and, upon receipt of a written
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authentication order in the form of an Officer's Certificate, the Trustee shall
authenticate a new Global Note in the appropriate principal amount.
(c) The transfer and exchange of Global Notes or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
(d) With respect to the transfer of a beneficial interest in a Global
Note for a Definitive Note:
(A) Any person having a beneficial interest in a Global Note
may, upon request to the applicable Trustee, exchange such beneficial
interest for a Definitive Note. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for the
Depositary or its nominee on behalf of any person having a beneficial
interest in a Global Note constituting a Transfer Restricted Security only,
except if exchanged for an Exchange Note in the Exchange Offer, the
following additional information and documents (all of which may be
submitted by facsimile):
(1) if such beneficial interest is being transferred to
the person designated by the Depositary as being the
beneficial owner, a certification from such person to that
effect (in substantially the form of Exhibit C hereto); or
(2) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit C hereto); or
(3) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or in reliance on another
exemption from the registration requirements of the Securities
Act, a certification to that effect from the transferee or
transferor (in substantially the form of Exhibit C hereto) and
an opinion of counsel from the transferee or transferor
reasonably acceptable to the Company and to the Note Registrar
to the effect that such transfer is in compliance with the
Securities Act,
then the Trustee will cause, in accordance with the standing instructions
and procedures existing between it and the Depositary, the aggregate
principal amount of the Global Note to be reduced and, following such
reduction, the Company will execute and, upon receipt of a written
authentication order in the form of an Officer's
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Certificate, the Trustee will authenticate and deliver to the transferee a
Definitive Note.
(B) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.05 shall be registered
in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall in writing instruct the Trustee. The Trustee shall deliver
such Definitive Notes to the persons in whose name such Notes are so
registered.
(e) Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.05), a Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) The following relates to the authentication of Definitive Notes in
the absence of the Depositary. If at any time: (i) the Depositary for the Notes
notifies the Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Notes and a successor Depositary for the Global Notes
is not appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of Definitive Notes under this Indenture, then
the Company will execute, and the Trustee, upon receipt of a Company Order
requesting the authentication and delivery of Definitive Notes, will
authenticate and deliver Definitive Notes, in an aggregate principal amount
equal to the principal amount of the Global Notes, in exchange for such Global
Notes.
(g)
(A)
(A) Except as otherwise agreed to by the Company, the Trustee and the Holder
thereof or as permitted by the following paragraph (B), each Rule 144A Note
certificate evidencing the Global Notes and the Definitive Notes (and all Notes
other than Exchange Notes issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
THIS SECURITY HAS 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
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UNDER SUCH LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS
SECURITY OR ANY PREDECESSOR OF SUCH SECURITY UNLESS SUCH OFFER, SALE OR
OTHER TRANSFER IS (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (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, TO A PERSON WHO IS, OR WHO THE HOLDER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT 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, OR (D) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND IN EACH OF THE FOREGOING CASES SUCH OFFER, SALE OR
OTHER TRANSFER IS IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF A
SATISFACTORY OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM PROVIDED FOR IN THE INDENTURE (A COPY
OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE THEN HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION
TERMINATION DATE. ANY TRANSFEREE OF THIS SECURITY SHALL BE DEEMED TO HAVE
REPRESENTED EITHER (X) THAT IT IS NOT USING THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
("ERISA") OR THE INTERNAL REVENUE CODE (THE "CODE") TO PURCHASE THIS
SECURITY OR (Y) THAT ITS PURCHASE AND CONTINUED HOLDING OF THE SECURITY
WILL BE COVERED BY A U.S. DEPARTMENT OF LABOR CLASS EXEMPTION (WITH RESPECT
TO PROHIBITED TRANSACTIONS UNDER SECTION 406(a) OF ERISA).
(B) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act (including the Shelf
Registration Statement):
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(1) in the case of any Transfer Restricted Security that
is a Definitive Note, the Note Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(2) any such Transfer Restricted Security represented by
a Global Note shall not be subject to the provisions set forth
in (i) above (such sales or transfers being subject only to
the provisions of Section 2.05(c) hereof); provided, however,
that with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note for a
Definitive Note that does not bear a legend, which request is
made in reliance upon Rule 144 or an effective registration
statement, the Holder thereof shall certify in writing to the
Note Registrar that such request is being made pursuant to
Rule 144 or an effective registration statement (such
certification to be substantially in the form of Exhibit C
hereto) and, in the case of a transfer pursuant to Rule 144,
accompanied by an opinion of counsel reasonably acceptable to
the Company and to the Note Registrar to the effect that such
transfer is in compliance with the Securities Act.
(h) At such time as all beneficial interests in a Global Note have
either been exchanged for Definitive Notes, redeemed, repurchased or cancelled,
such Global Note shall be returned to or retained and cancelled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced and
an endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
(i) All Definitive Notes and Global Notes issued upon any registration
of transfer or exchange of Definitive Notes or Global Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Definitive Notes or Global Notes
surrendered upon such registration of transfer or exchange.
The Company and the Note Registrar shall not be required (A) to issue,
to register the transfer of or to exchange Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest Payment
Date.
No service charge shall be made to a Holder for any registration of
transfer
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or exchange (except as otherwise expressly permitted herein), but the Company
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable and any other expenses (including the fees and
expenses of the Trustee) in connection therewith (other than such transfer tax
or similar governmental charge payable upon exchanges pursuant to Section 2.06
or 9.05).
(j) Prior to due presentment of a Note 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 Note is registered as the owner of such Note for
the purpose of receiving payment of principal of, and premium, if any, and
interest on such Note and for all other purposes whatsoever, whether or not such
Note may 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 2.06. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the receipt of
a Company Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, the Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note. Upon the issuance of any new Note
under this Section, the Company and the Trustee 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 Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes 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 Notes.
SECTION 2.07. OUTSTANDING NOTES.
The Notes Outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.07 as not Outstanding.
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If the principal amount of any Note is considered paid under Section
4.01, it ceases to be Outstanding and interest on it ceases to accrue as of the
date it is deemed paid. Upon a "legal defeasance" pursuant to Section 8.03 or a
"covenant defeasance" pursuant to Section 8.04, the Notes shall be deemed to be
Outstanding or not Outstanding as provided in the applicable Section 8.03 or
8.04.
SECTION 2.08. ACTS OF HOLDERS; RECORD DATE.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given 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 an 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 7.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) 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 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.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 13.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
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(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note 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 in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 2.09. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at any office or agency of the Company, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.10. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Note Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation, and, upon receipt by the Trustee
of a Company Request, certification of their destruction shall be delivered to
the Company unless, by Company Order, the Company shall direct that canceled
Notes be returned to it. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST.
If the Company or any Guarantor defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes. The Company, with the consent of the Trustee, shall fix
each such special record date and payment date. At least 15 days before the
special record date, the Company (or, upon receipt by the Trustee of a
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Company Request, the Trustee, in the name of and at the expense of the Company)
shall mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.12. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish that the Notes are to be issued in
whole or in part in the form of one or more Global Notes, then the Company shall
execute and the Trustee or an agent thereof shall, in accordance with Section
2.02 and the Company Order delivered to the Trustee or its agent thereunder,
authenticate and deliver such Global Note or Notes, which (i) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Notes to be represented by such Global Note or Notes, or such
portion thereof as the Company shall specify in a Company Order, (ii) shall be
registered in the name of the Depositary for such Global Note or Notes or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for securities in definitive form, this security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of the Depositary to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depositary or in such other name as
is requested by an authorized representative of the Depositary (and any payment
is made to the nominee of the Depositary 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, the nominee of the Depositary, has an interest
herein."
(b) Notwithstanding any other provision of this Section 2.12 or of
Section 2.05, and subject to the provisions of paragraph (c) below, a Global
Note may be transferred, in whole but not in part and in the manner provided in
Section 2.05, only to a nominee of the Depositary for such Global Note, or to
the Depositary, or a successor Depositary for such Global Note selected or
approved by the Company, or to a nominee of such successor Depositary.
(c)
(i)
(i) If at any time the Depositary for a Global Note notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Note or if at
any time the Depositary for the Notes shall no longer be eligible or in good
standing under the Exchange Act or any other applicable statute or regulation,
the Company shall appoint a successor Depositary with
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respect to such Global Note. If a successor Depositary for such Global Note is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company and the Guarantors
will execute, and the Trustee or an agent thereof, upon receipt of a Company
Order for the authentication and delivery of individual Definitive Notes in
exchange for such Global Note, will authenticate and deliver, individual
Definitive Notes of like tenor and terms in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
(ii) The Company may at any time and in its sole discretion determine
that the Notes issued in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Definitive Notes in exchange
in whole or in part for such Global Note, will authenticate and deliver
individual Definitive Notes of like tenor and terms in an aggregate
principal amount equal to the principal amount of such Global Note or Notes
in exchange for such Global Note or Notes.
(iii) If specified by the Company pursuant to a Company Order, the
Depositary for a Global Note may surrender such Global Note in exchange in
whole or in part for individual Definitive Notes of like tenor and terms on
such terms as are acceptable to the Company and such Depositary. Thereupon
the Company shall execute, and the Trustee or an agent thereof, upon
receipt of a Company Order, shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depositary a new Definitive
Note or Notes of like tenor and terms and of any authorized denomination as
requested by such Person in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest as specified by such
Depositary in the Global Note; and (2) to such Depositary a new Global Note
of like tenor and terms and in an authorized denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Note and the aggregate principal amount of Definitive Notes delivered to
Holders thereof.
(iv) In any exchange provided for in (i), (ii) or (iii) of this
paragraph (c), the Company will execute and the Trustee or an agent thereof
will authenticate and deliver individual Definitive Notes in registered
form in authorized denominations. Upon the exchange of the entire principal
amount of a Global Note for individual Definitive Notes, such Global Notes
shall be cancelled by the Trustee or an agent thereof. Except as provided
in (iii) above, Definitive Notes issued in exchange for a Global Note
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct either the Trustee or the Note Registrar. Such Trustee or
the Note Registrar shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee), a Company Order setting forth (i)
the Section of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed and (iv)
the redemption price.
If the Company is required to make an offer to purchase Notes pursuant
to the provisions of Sections 3.09 or 4.14 hereof, it shall furnish to the
Trustee, at least 30 days before the scheduled purchase date, a Company Order
setting forth (i) the Section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the terms of the offer, (iii) the purchase price,
(iv) the principal amount of the Notes to be purchased, (v) the purchase date,
(vi) a statement to the effect that all conditions precedent required to be met
as part of such offers to purchase have been met and (vii) further setting forth
a statement to the effect that (a) the Company or one of its Restricted
Subsidiaries has effected an Asset Sale and there are Excess Proceeds
aggregating more than $15.0 million or (b) a Change of Control has occurred, as
applicable.
SECTION 3.02. SELECTION OF NOTES TO BE PURCHASED OR REDEEMED.
If less than all of the Notes are to be redeemed at any time, selection
of the Notes for redemption shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such other method as the Trustee deems fair and appropriate; provided that
no Notes with a principal amount of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
purchase or redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be purchased or
redeemed, the entire Outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
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The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price and accrued interest and Liquidated Damages,
if any;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon surrender of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called for redemption
cease to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
a Company Order requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding
paragraph. The notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives such notice.
In any case, failure to give such notice by mail or any defect in the notice to
the Holder of any Note shall not affect the validity of the proceeding for the
redemption of any other Note.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
Redemption Date at the redemption price, plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
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SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 12:00 p.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 3.09
or 4.14, the Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued and unpaid interest
and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Company upon
its written request any money deposited with the Trustee or the Paying Agent by
the Company in excess of the amounts necessary to pay the redemption price of
(including any applicable premium), accrued interest and Liquidated Damages, if
any, on all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if the Company has deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase price
of, unpaid and accrued interest and Liquidated Damages, if any, on all Notes to
be redeemed or purchased on and after the redemption or purchase date, interest
and Liquidated Damages, if any, shall cease to accrue on the Notes or the
portions of Notes called for redemption or tendered and not withdrawn in an
Asset Sale Offer or Change of Control Offer (regardless of whether certificates
for such securities are actually surrendered). Notwithstanding Sections 3.09 and
Sections 3.14, if a Note is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest and Liquidated Damages, if any, shall be paid to the Person in
whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, and Liquidated
Damages, if any, from the redemption or purchase date until such principal is
paid, and to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part (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), the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
aggregate principal amount to and in exchange for the unredeemed portion of the
principal of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes shall not be
redeemable at the Company's option prior to March 15, 2003. Thereafter, the
Notes shall be subject to redemption at the option of the Company, in whole or
in part, upon not less than 30 nor more
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than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, together with accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve month period beginning on March 15 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2003....................................... 104.500%
2004....................................... 103.000%
2005....................................... 101.500%
2006 and thereafter........................ 100.000%
Notwithstanding the foregoing, at any time prior to March 15, 2001, the
Company on one or more occasions may redeem up to 35% of the aggregate principal
amount of Notes originally issued with the net proceeds of one or more offerings
of common stock of the Company for cash at a redemption price of 109.000% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date of redemption; provided that at
least 65% of the aggregate principal amount of the Notes remain Outstanding
immediately after the occurrence of each such redemption.
Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under the Sections 3.09, 4.10 and 4.14 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Notes (an "Asset
Sale Offer"), it shall follow the procedures specified below:
The Asset Sale Offer shall remain open for a period of twenty Business
Days after the Commencement Date relating to such Asset Sale Offer, except to
the extent that a longer period is required by applicable law (as so extended,
the "Offer Period"). No later than five Business Days after the termination of
the Offer Period (the "Purchase Date"), the Company shall purchase the principal
amount of Notes required to be purchased pursuant to Sections 3.02 and 4.10
hereof (the "Offer Amount") or, if less than the Offer Amount has been tendered,
all Notes tendered in response to the Asset Sale Offer.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be
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payable to Holders who tender Notes pursuant to the Asset Sale Offer.
No later than the date which is fifteen Business Days after the date on
which the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company
shall notify the Trustee of such Asset Sale Offer in accordance with Section
3.09 hereof and commence or cause to be commenced the Asset Sale Offer on a date
no later than fifteen Business Days after such notice (the "Commencement Date").
On the Commencement Date of any Asset Sale Offer, the Company shall
send or cause to be sent, by first class mail, a notice to the Trustee and each
of the Holders. Such notice, which shall govern the terms of the Asset Sale
Offer, shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer and shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in the payment of the purchase
price, any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest and Liquidated Damages, if any, after the Purchase
Date;
(e) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice not later
than the close of business on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the close of business on the last day of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be
issued
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new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer) in accordance with Section
3.06 hereof.
On or before 12:00 p.m. (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for Payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depositary, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officer's Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than five Business
Days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, plus any accrued and unpaid interest and Liquidated
Damages, if any, thereon, and the Company shall promptly issue a new Note, and
the Trustee shall authenticate and mail or deliver such new Note, to such
Holder, equal in principal amount to any unpurchased portion of such Holder's
Notes surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Company shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
Principal, premium, if any, interest and Liquidated Damages, if any, shall be
considered paid for all purposes hereunder on the date the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 12:00 noon (New York
City time) money deposited by the Company in immediately available funds and
designated for and sufficient to pay all such principal, premium, if any,
interest and Liquidated Damages, if any, then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per
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annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee or Note Registrar) where Notes may
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such 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 pursuant to the
immediately preceding paragraph for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the Commission,
so long as any Notes are Outstanding, the Company shall furnish to the Holders
of Notes (i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its consolidated subsidiaries and, with respect to the annual information only,
a report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, for so long
as any Notes constitute "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, the Company shall furnish to Holders and to
securities analysts and prospective investors, upon their request, such other
information as may be required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
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The financial information to be distributed to Holders of Notes shall
be filed with the Trustee and mailed to the Holders at their addresses appearing
in the Note Register, within 120 days after the end of the Company's fiscal year
and within 60 days after the end of each of the first three quarters of each
such fiscal year.
The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information and the Trustee will
deliver such reports to the Holders under this Section 4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officer's Certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether each has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge each entity has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, interest
or Liquidated Damages, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto. For the purpose of this Section 4.04,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
annual financial statements delivered pursuant to Section 4.03 hereof, the
Company shall use its best efforts to deliver a written statement of the
Company's independent public accountants (who shall be Price Waterhouse LLP or a
successor firm or another firm of established national reputation reasonably
satisfactory to the Trustee) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article Four or Section 5.01 hereof or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation. In the event that such
written statement cannot be obtained, the Company shall deliver an Officer's
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
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(c) The Company shall, so long as any of the Notes are Outstanding,
deliver to the Trustee, forthwith upon the Company having actual knowledge of
any Default or Event of Default, an Officer's Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
shown on returns to be due and owing, except such as are contested in good faith
by appropriate procedures.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution (including in connection with any merger or consolidation) on
account of any Equity Interests of the Company or any of its Restricted
Subsidiaries (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or dividends or distributions
payable to the Company or any Wholly Owned Restricted Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company, any of its Restricted Subsidiaries or any other
Affiliate of the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make
any principal payment or, with respect to Disqualified Stock, similar payment
on, or purchase, redeem, defease or otherwise acquire or retire for value (x)
any Indebtedness that is subordinated in right of payment to the Notes or a
Guarantee or (y) any Disqualified Stock, except at the original final maturity
thereof or in accordance with the scheduled mandatory redemption or repayment
provisions set forth in the original documentation governing such Indebtedness
or Disqualified Stock (but not pursuant to any mandatory offer to repurchase
upon the occurrence of any event); or (iv) make any Restricted Investment (all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time of
such Restricted Payment:
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(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof, and
(b) the Company would be permitted, immediately after giving effect to
such Restricted Payment, to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof, and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after
the date hereof (the amount so expended, if other than in cash, to be determined
in good faith by the Board of Directors of the Company and excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (vi), (vii), (x) and (xiii) of
the next succeeding paragraph), is less than the sum of (1) 50% of the
Consolidated Net Income of the Company for the period (taken as one accounting
period) from January 1, 1998 to the end of the Company's most recently ended
fiscal quarter for which financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus (2) 100% of the aggregate net
proceeds (including the fair market value of non-cash proceeds as determined in
good faith by the Board of Directors of the Company) received by the Company
from contributions of capital or the issue or sale since the date hereof of
Equity Interests of the Company or of debt securities of the Company that have
been converted into such Equity Interests (other than Equity Interests or
convertible debt securities) sold to a Restricted Subsidiary of the Company and
other than Disqualified Stock or debt securities that have been converted into
Disqualified Stock); provided that no proceeds received by the Company from the
issue or sale of any Equity Interests issued by the Company will be counted in
determining the amount available for Restricted Payments under this clause (c)
to the extent such proceeds were used to redeem, repurchase, retire or acquire
any Equity Interests of the Company pursuant to clause (ii) of the next
succeeding paragraph, to defease, redeem or repurchase any subordinated
Indebtedness pursuant to clause (iii) of the next succeeding paragraph or to
redeem, repurchase, retire or acquire any Equity Interests of the Company
pursuant to clause (iv) of the next succeeding paragraph, plus (3) to the extent
that any Restricted Investment that was made after the date hereof is sold for
cash or otherwise liquidated or repaid for cash, the cash return of capital with
respect to such Restricted Investment (less the cost of disposition, if any).
The foregoing provisions will not prohibit any or all of the following
Restricted Payments (each and all of which (1) constitutes an independent
exception to the foregoing provisions and (2) may occur in addition to any
action permitted to occur under any other exception): (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at such date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the net proceeds
of, the substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of other Equity Interests of the Company (other than Disqualified
Stock); (iii) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net proceeds from an incurrence of Permitted Refinancing
Indebtedness or the substantially concurrent
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sale (other than to a Restricted Subsidiary) of Equity Interests of the Company
(other than Disqualified Stock); (iv) the redemption, repurchase, retirement or
other acquisition of any Disqualified Stock in exchange for, or out of the net
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary) of Disqualified Stock; provided that any Disqualified Stock so
issued has a stated, liquidation, redemption or similar value no greater than
the Disqualified Stock being redeemed, repurchased, retired or otherwise
acquired and matures, is mandatorily redeemable and/or is redeemable at the sole
option of the holder thereof on a date later than the date of the Disqualified
Stock being redeemed, repurchased, retired or otherwise acquired; (v) the
funding of loans (but not including the forgiveness of any such loan) to, and
payment of directors' and officers' insurance premiums for the benefit of,
executive officers, directors, employees or shareholders for relocation loans,
bonus advances and other purposes consistent with past practices or the
purchase, redemption or other acquisition for value of shares of Capital Stock
of the Company (other than Disqualified Stock) or options on such shares held by
the Company's or the Restricted Subsidiaries' directors, officers or employees
or former directors, officers or employees (or their estates or trusts or
beneficiaries under their estates or trusts for the benefit of such
beneficiaries) upon the death, disability, retirement or termination of
employment of such current or former directors, officers or employees pursuant
to the terms of an employee benefit plan or any other agreement pursuant to
which such shares of Capital Stock or options were issued or pursuant to a
severance, buy-sell or right of first refusal agreement with such current or
former directors, officers or employees; provided that the aggregate amount of
any such loans funded and cash consideration paid, or distributions made,
pursuant to this clause (v) does not in any one fiscal year exceed $5.0 million;
(vi) the payment of dividends by a Restricted Subsidiary on any class of common
stock of such Restricted Subsidiary if such dividend is paid pro rata to all
holders of such class of common stock; (vii) the repurchase of any class of
common stock of a Restricted Subsidiary if such repurchase is made pro rata with
respect to such class of common stock; (viii) payments of cash, not to exceed
$5.0 million in the aggregate, (A) in lieu of the issuance of fractional shares
in connection with stock dividends and other distributions on account of, and
otherwise payable in, Equity Interests and (B) to redeem Equity Interests in
connection with a rights plan adopted by the Board of Directors of the Company;
(ix) payments in respect of the warrant to acquire 1,000,000 shares (subject to
adjustment) of the Company's common stock originally issued to Bristol-Myers
Squibb Company in connection with the Company's acquisition on December 31, 1997
of Linvatec Corporation and certain related assets; (x) any other Restricted
Payment if the amounts thereof, together with all other Restricted Payments made
pursuant to this clause (x) since the date hereof, shall not exceed $10.0
million; (xi) the payment of dividends by a Foreign Subsidiary to a foreign
national on any class of common stock of such Foreign Subsidiary that, pursuant
to requirements of local law in a jurisdiction outside the United States, is
held by such foreign national; (xii) payments pursuant to or in connection with
consolidations, mergers or transfers of assets that comply with the provisions
of this Indenture applicable to mergers, consolidations or sales of assets
(including share exchanges pursuant to state law), not to exceed $15.0 million
in the aggregate; and (xiii) the redemption, repurchase or other acquisition of
Notes. In the event that a Restricted Payment meets the criteria of more than
one of the types of Restricted Payments described in clauses (i) through (xiii)
of this paragraph, the Company, in its sole
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discretion, shall classify such Restricted Payment and only be required to
include the amount and type of such Restricted Payment in one of such clauses.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary; provided, however, that (i) no Default or Event of
Default shall have occurred and be continuing or would arise therefrom, (ii)
such designation, when considered as an Investment as described in the next
sentence, is at that time permitted under this Section 4.07 and (iii)
immediately after giving effect to such designation, the Company would be able
to incur at least $1.00 of additional Indebtedness under the Fixed Charge
Coverage Ratio set forth in the first paragraph of Section 4.09 hereof. All such
outstanding Investments shall be deemed to constitute Restricted Investments in
an amount equal to the fair market value (as determined by the Board of
Directors of the Company in good faith) of such Investments at the time of such
designation. Such designation shall only be permitted if under the terms of this
Indenture such Restricted Investment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
Not later than the date of making any Restricted Payment (excluding
Restricted Payments permitted by (ii), (iii), (iv), (vi), (vii), (x) and (xiii)
of the second preceding paragraph hereof, the Company shall deliver to the
Trustee an Officer's Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.07 were computed, which calculations shall be based upon the
Company's latest available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to: (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries on its
Capital Stock or (b) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries; (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries; or (iii) transfer any of its properties or assets
to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness, as in effect on the date hereof and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof permitted hereunder; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive in the aggregate than those
contained in the Existing Indebtedness, as in effect on the date hereof; (b) the
Credit Facility and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof
permitted hereunder; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are no
more restrictive in the aggregate than those contained in the Credit Facility as
in effect on the date
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hereof; (c) the Indenture, the Notes and the Guarantees; (d) applicable law; (e)
any instrument governing Indebtedness or Capital Stock of a Person acquired by
the Company or any of its Restricted Subsidiaries, as in effect at the time of
acquisition (except to the extent such Indebtedness was incurred in connection
with, or in contemplation of, such acquisition), which encumbrances or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired; (provided that in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred), and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof permitted hereunder; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive in the
aggregate than those relating to such Indebtedness or Capital Stock in effect at
the time of the acquisition; (f) customary non-assignment provisions in leases,
licenses, contracts and other agreements entered into in the ordinary course of
business and consistent with past practices; (g) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired; (h)
Permitted Refinancing Indebtedness; provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more
restrictive in the aggregate than those contained in the agreements governing
the Indebtedness being refinanced; (i) an agreement that has been entered into
for the sale or disposition of all or substantially all of the Equity Interests
or property or assets of a Restricted Subsidiary; provided that such
restrictions are limited to the Restricted Subsidiary that is the subject of
such agreement; (j) restrictions created in connection with any Permitted
Receivables Financing; or (k) restrictions applicable to any Foreign Subsidiary
pursuant to Indebtedness permitted to be incurred pursuant to clause (x) of the
second paragraph of Section 4.09 hereof; provided that such restrictions shall
be limited to customary net worth, leverage, cash flow and other financial
ratios applicable to such Foreign Subsidiary, customary restrictions on mergers
and consolidations involving such Foreign Subsidiary, customary restrictions on
transactions with affiliates of such Foreign Subsidiary and customary provisions
subordinating the payment of intercompany Indebtedness owed by such Foreign
Subsidiary to the Company or any of its Restricted Subsidiaries upon the
occurrence of a default in respect of Indebtedness of such Foreign Subsidiary or
its Subsidiaries and/or events of insolvency with respect to such Foreign
Subsidiary or its Subsidiaries; and provided, further, that in no event shall
any Indebtedness other than a Credit Agreement incurred by a Foreign Subsidiary
prohibit such Foreign Subsidiary from making any dividend or other distribution
to the Company or its Restricted Subsidiaries or from otherwise making any loan
to the Company or its Restricted Subsidiaries in the absence of a breach by such
Foreign Subsidiary of the covenants contained in such Indebtedness unless to do
so would violate applicable law.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (including Acquired Debt and Disqualified Stock) and (ii) the
Company will not permit any of its
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Restricted Subsidiaries that is not a Guarantor to issue any shares of preferred
stock; provided, however, that the Company and the Guarantors may incur
Indebtedness (including Acquired Debt and Disqualified Stock) if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred would have been at least
2.00 to 1, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been incurred
at the beginning of such four-quarter period.
The foregoing provisions will not apply to any of the following (each
and all of which (1) may be issued or incurred, (2) constitutes an independent
exception to the foregoing provisions and (3) may be incurred in addition to any
other Indebtedness permitted to be incurred under the foregoing paragraph or any
other exception): (i) the incurrence by the Company or any Guarantor of
Indebtedness constituting term loans pursuant to one or more Credit Agreements
in an aggregate principal amount outstanding at any one time not to exceed $250
million (A) less the aggregate amount of all mandatory repayments (a "Mandatory
Repayment") of the principal of any term Indebtedness under such Credit
Agreements that have been made since the date hereof (or which would otherwise
have been required to have been made but for the fact that a prior optional
repayment has been made of the principal of any term Indebtedness under such
Credit Agreements) pursuant to the amortization schedule of any Credit Agreement
(other than any Mandatory Repayment made concurrently with any refinancing or
refunding of such Credit Agreements or required to be made with the net proceeds
from the offering of the Notes being made hereby) and (B) less the aggregate
amount of all Net Proceeds of Asset Sales applied pursuant to clause (a) of the
first sentence of the second paragraph under Section 4.10 hereof to permanently
reduce Indebtedness under such Credit Agreements; (ii) the incurrence by the
Company or any Guarantor pursuant to one or more Credit Agreements of
Indebtedness incurred under revolving credit arrangements and letters of credit
in an aggregate principal amount at any time outstanding (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability
of the Company or the relevant Guarantor thereunder) not to exceed the greater
of (A) $100.0 million in the aggregate or (B) the sum of (x) 85% of the
Company's accounts receivable and (y) 50% of the Company's inventory; (iii) the
incurrence by the Company and any Guarantor of Indebtedness represented by the
Notes and any Guarantee thereof; (iv) the incurrence by the Company or any of
its Restricted Subsidiaries of Indebtedness represented by (X) Capital Lease
Obligations, mortgage financings, purchase money obligations or sale and
leaseback transactions, in each case incurred for the purpose of financing all
or any part of the purchase price or cost of construction or improvement of
property used in the business of the Company or such Restricted Subsidiary and
(Y) industrial revenue bonds, pollution control bonds or other tax exempt
financing; provided the aggregate principal amount of Indebtedness incurred
pursuant to this clause (iv) shall not exceed $12.5 million at any time
outstanding; (v) Existing indebtedness; (vi) the incurrence by the Company or
any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund, indebtedness (or any successive refinancing thereof)
that was permitted by this Indenture; (vii) the incurrence by the Company or any
of its Restricted Subsidiaries
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of intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however, that (a) any subsequent issuance or
transfer (including for security purposes) of Equity Interests and (b) any
subsequent sale or other transfer (including for security purposes other than to
secure Indebtedness permitted to be incurred pursuant to clause (i) or (ii) of
this paragraph) of such Indebtedness, in each case, that results in any such
Indebtedness being held by a Person other than the Company or any of its
Restricted Subsidiaries shall be deemed to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging (a)
interest rate risk with respect to any floating rate Indebtedness of such Person
so long as such floating rate Indebtedness is permitted by the terms of this
Indenture to be outstanding or (b) exchange rate risk with respect to agreements
or Indebtedness of such Person payable or denominated in a currency other than
U.S. dollars; (ix) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted Subsidiary of the
Company; (x) the incurrence by any Foreign Subsidiary of Indebtedness and
letters of credit (with letters of credit being deemed to have a principal
amount equal to maximum potential liability of such Foreign Subsidiary
thereunder) in an aggregate maximum principal amount outstanding at any one time
not to exceed $10.0 million; (xi) Obligations in respect of performance and
surety bonds provided by the Company or any Guarantor in the ordinary course of
business; (xii) letters of credit and bankers' acceptances in an aggregate face
amount at any time outstanding not to exceed $5.0 million; (xiii) Indebtedness
of a Securitization Subsidiary incurred in connection with a Permitted
Receivables Financing; provided that after giving effect to the incurrence
thereof, the Company would be able to incur at least $1.00 of Indebtedness under
the preceding paragraph or clause (i) or (ii) of this paragraph; (xiv) Acquired
Debt not to exceed $25.0 million at any time outstanding; (xv) Indebtedness in
an aggregate amount not to exceed $1.0 million owed to the Empire State
Development Corporation; (xvi) guarantees made in the ordinary course of
business by the Company and any of its Restricted Subsidiaries of lease
obligations of their customers in respect of equipment sold by the Company or
any of its Restricted Subsidiaries to a third party and then leased to such
customer in an aggregate amount outstanding at any time not to exceed $10.0
million; (xvii) the incurrence by the Company and any Guarantor of Indebtedness
in an aggregate principal amount at any time outstanding not to exceed $25.0
million; and (xviii) guarantees by any Restricted Subsidiary of Indebtedness
incurred by the Company or any other Restricted Subsidiary in compliance with
the provisions set forth under the preceding paragraph or this paragraph may be
guaranteed pursuant to this clause (xviii).
For purposes of determining compliance with the provisions contained in
the two preceding paragraphs, (i) in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the clauses of the preceding paragraph or is entitled to be incurred pursuant to
the first paragraph of this Section, the Company, in its sole discretion, shall
classify such item of Indebtedness in any manner that complies with the
provisions contained in this Section; provided that an item of Indebtedness
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satisfying the criteria of the first paragraph or more than one of the clauses
described in the preceding paragraph may be divided and classified in more than
one of the types of Indebtedness described above and (ii) 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
conformity with GAAP. For the avoidance of doubt and as an example of the
application of the foregoing provisions, the Company or any Guarantor shall be
permitted to incur Indebtedness constituting term loans pursuant to one or more
Credit Agreements in an aggregate principal amount outstanding not to exceed the
sum of (a) the amount permitted by clause (i) of the foregoing paragraph and (b)
the amount that the Company and its Restricted Subsidiaries are then entitled to
incur pursuant to the first paragraph of this Section, and the Guarantors shall
be permitted to guarantee the Obligations of the Company under such Credit
Agreements.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company, or the
Restricted Subsidiary, as the case may be, receives consideration at least equal
to the fair market value (as determined in good faith by the Board of Directors
of the Company) of the assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration therefor is received by
the Company or such Restricted Subsidiary at or prior to consummation of the
Asset Sale and is in the form of cash or Cash Equivalents; provided that the
amount of (x) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes or, in the case of liabilities of a Restricted Subsidiary, the Guarantee
of such Subsidiary) that are assumed by the transferee of any such assets and
(y) any securities, notes, promises to pay or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received) within 180 days after receipt, shall be deemed to be
consideration received (for purposes of clause (i) above) and cash received at
or prior to the consummation of the Asset Sale (for purposes of clause (ii)
above).
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option, (a) to repay
Senior Debt or Pari Passu Indebtedness (provided that if the Company shall so
reduce in excess of $15.0 million of Pari Passu Indebtedness, it will equally
and ratably make an Asset Sale Offer (in accordance with the procedures set
forth below for an Asset Sale Offer) to all Holders) and/or (b) to an investment
in a Related Business (or enter into a definitive agreement committing to so
invest; provided that the transactions contemplated by any such agreement are
later consummated) or to the making of a capital expenditure or the acquisition
of other tangible assets, product distribution rights or intellectual property
or rights thereto, in each case, in a Related Business (as determined in good
faith by the Board of Directors of the Company). Pending the final application
of any such Net Proceeds, the Company may temporarily reduce borrowings under
the Credit Facility or otherwise invest such Net Proceeds in any
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manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the first sentence of this
paragraph will be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $15.0 million, the Company shall (i) make an
offer to all Holders of Notes and (ii) prepay, purchase or redeem (or make an
offer to do so) any other Pari Passu Indebtedness of the Company in accordance
with provisions requiring the Company to prepay, purchase or redeem such
Indebtedness with the proceeds from any asset sales (or offer to do so), pro
rata in proportion to the respective principal amounts (or accreted value, as
applicable) of the Notes and such other Indebtedness required to be prepaid,
purchased or redeemed or tendered for pursuant to such offer (an "Asset Sale
Offer"), to purchase the maximum principal amount of Notes that may be purchased
out of Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase, in accordance with the
procedures set forth in Section 3.09. To the extent that the aggregate principal
amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for any general
corporate purpose not in contravention of the other covenants provided for in
this Indenture. Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero.
The Asset Sale Offer shall be made by the Company in compliance with
all applicable laws, including, without limitation, Rule 14e-1 under the
Exchange Act and the rules thereunder, to the extent applicable.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Person known by the Company to be an Affiliate or which the
Company should have known is an Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or such Restricted Subsidiary than those that
could have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; (ii) if such Affiliate
Transaction involves aggregate consideration in excess of $2.0 million, the
Company delivers to the Trustee a resolution of the Board of Directors of the
Company set forth in an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (i) above and such Affiliate Transaction is
approved by a majority of the disinterested members of the Board of Directors of
the Company; and (iii) if such Affiliate Transaction involves aggregate
consideration in excess of $10.0 million, the Company delivers to the Trustee an
opinion as to the fairness of such Affiliate Transaction from a financial point
of view issued by an investment bank or accounting firm of national standing;
provided, however, that (a) any employment, consulting or similar agreement
(including any loan, but not any forgiveness thereof) entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of business
of the Company or such Restricted Subsidiary or any payment of directors' and
officers' insurance premiums, (b)
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transactions between or among the Company and/or its Restricted Subsidiaries,
(c) a Holding Company Restructuring, (d) payment of employee benefits, including
wages, salary, bonuses, retirement plans and stock options and director fees in
the ordinary course of business, (e) transactions in connection with a Permitted
Receivables Financing or an industrial revenue bond financing and (f)
transactions that constitute Restricted Payments permitted by the provisions of
this Indenture under Section 4.07 hereof, in each case, shall not be deemed
Affiliate Transactions.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) securing any Obligations on any
property or asset now owned or hereafter acquired, or on any income or profits
therefrom or assign or convey any right to receive income therefrom, unless the
Notes, and the Guarantees, as applicable, are either (i) secured by a Lien on
such property, assets, income or profits that is senior in priority to the Lien
securing such other Obligations, if such other Obligations are subordinated in
right of payment to the Notes and/or the Guarantees or (ii) equally and ratably
secured by a Lien on such property, assets, income or profits with the Lien
securing such other Obligations if such other Obligations are pari passu in
right of payment to the Notes and/or the Guarantees.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company and any Restricted Subsidiary may enter into a sale and leaseback
transaction if (i) the Company or such Restricted Subsidiary could have incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to (a) the Fixed Charge Coverage Ratio test
set forth in the first paragraph of Section 4.09 hereof and/or (b) clause (iv)
of the second paragraph of Section 4.09 hereof (as limited by the proviso to
such clause), (ii) the Lien to secure such Indebtedness does not extend to or
cover any assets of the Company or such Restricted Subsidiary other than the
assets which are the subject of the sale and leaseback transaction, (iii) the
gross cash proceeds of such sale and leaseback transaction are at least equal to
the fair market value (as determined in good faith by the Board of Directors of
the Company and set forth in an Officer's Certificate delivered to the Trustee)
of the property that is the subject of such sale and leaseback transaction and
(iv) the transfer of assets in such sale and leaseback transaction is permitted
by, and the proceeds of such transaction are applied in compliance with, Section
4.10 hereof. Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may enter into sale and leaseback transactions resulting in
Attributable Debt at any time outstanding relating to such transactions not in
excess of $10.0 million in the aggregate without complying with clause (iii) of
the preceding sentence.
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SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder stating:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes properly tendered will be accepted
for payment;
(b) the purchase price and the purchase date (the "Change of Control
Payment Date"), which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed;
(c) that any Note not properly tendered will continue to accrue
interest;
(d) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest and
Liquidated Damages, if any, after the Change of Control Payment
Date;
(e) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, or transfer by book-entry, to the
Paying Agent at the address specified in the notice not later than
the close of business on the Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes
purchased;
(g) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry),
which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof; and
(h) a description of the transaction or transactions that constitute
the
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Change of Control.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officer's Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. Prior to being
required to comply with the provisions of this Section 4.14, but in any event
within 90 days following a Change of Control, the Company shall either repay all
outstanding Senior Debt or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Debt to permit the repurchase of Notes
required by this Section 4.14.
Notwithstanding the provisions hereof, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in accordance with the provisions hereof and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to the other provisions of this Article 4 and the provisions of
Article 5 hereof, the Company and each of the Guarantors shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i)
their respective corporate existences in accordance with the organizational
documents (as the same may be amended from time to time) of the Company or the
applicable Guarantor, as the case may be, and (ii) the rights (charter and
statutory), licenses and franchises of the Company or such Guarantor, as the
case may be; provided, that neither the Company nor any Guarantor shall be
required to preserve any such right, license or franchise or corporate,
partnership or other existence, if the Board of Directors of the Company or such
Guarantor, as the case may be, shall in good faith determine that the
preservation thereof is no longer desirable in the conduct of the
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business of the Company or such Guarantor.
SECTION 4.16. ANTI-LAYERING.
The Company (i) shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is both (a) subordinate or
junior in right of payment to any Senior Debt and (b) senior in any respect in
right of payment to the Notes; and (ii) no Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is both
(a) subordinate or junior in right of payment to its Senior Debt and (b) senior
in any respect in right of payment to its Guarantee.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving entity), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to, another Person unless (i) the Company is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made assumes all the obligations of the Company under
the Notes and this Indenture pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee; (iii) immediately after such
transaction, no Default or Event of Default exists; and (iv) the Company or the
Person formed by or surviving any such consolidation or merger, or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made will, at the time of such transaction after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 4.09 hereof. The foregoing will not prohibit a
consolidation or merger between the Company and a Guarantor, the transfer of all
or substantially all of the properties or assets of the Company to a Guarantor
or a Holding Company Restructuring; provided that if the Company is not the
surviving entity of such transaction or the Person to which such transfer is
made, the surviving entity or the Person to which such transfer is made shall
comply with clause (ii) of this Section 5.01.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in
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accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), 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.
ARTICLE 6
DEFAULTS AND
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 consecutive days in the payment when due of interest
or Liquidated Damages, if any, with respect to the Notes (whether or not
prohibited by Article 10 or Article 12 hereof);
(ii) default in payment when due of principal or premium, if any, on
the Notes at maturity, upon redemption or otherwise (whether or not
prohibited by Article 10 or Article 12 hereof);
(iii) failure by the Company or any Guarantor for 30 consecutive days
after receipt of notice from the Trustee or Holders of at least 25% in
principal amount of the Notes then Outstanding to comply with the
provisions described under Sections 4.07, 4.09, 4.10, 4.14 or 5.01 hereof;
(iv) failure by the Company or any Guarantor for 60 consecutive days
after notice from the Trustee or the Holders of at least 25% in principal
amount of the Notes then Outstanding to comply with its other agreements in
this Indenture or the Notes;
(v) default under any mortgage, indenture or instrument 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 of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date hereof, which default (A) (i) is
caused by a failure to pay when due at final stated maturity (giving effect
to any grace period related thereto) principal of such Indebtedness (a
"Payment Default") or (ii) results in the acceleration of such Indebtedness
prior to its final stated maturity and (B) in each case, the principal
amount of such Indebtedness, together with the principal amount of any
other such
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Indebtedness under which there has been a Payment Default or the maturity
of which has been accelerated as a result of any matter contemplated in
clause (v)(A)(i) or (v)(A)(ii), aggregates $10.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to
pay final non-appealable judgments (to the extent not covered by insurance
or as to which the insurer has not acknowledged coverage in writing)
aggregating in excess of $10.0 million, which judgments are not paid, fully
bonded, discharged or stayed within 60 days after their entry;
(vii) the Company or any Restricted Subsidiary that is a Significant
Subsidiary or group of Restricted Subsidiaries that, together would
constitute a Significant Subsidiary, pursuant to or within the meaning of
any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors,
or
(e) admits in writing its inability generally to pay its debts as
the same become due;
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted
Subsidiary that is a Significant Subsidiary or group of
Restricted Subsidiaries that, together, would constitute a
Significant Subsidiary of the Company in an involuntary case in
which it is the debtor,
(b) appoints a Custodian of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or group of
Restricted Subsidiaries that, together, would constitute a
Significant Subsidiary of the Company or for all or substantially
all of the property of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or group of Restricted
Subsidiaries that, together, would constitute a Significant
Subsidiary of the Company, or
(c) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or group of
Restricted Subsidiaries that, together, would constitute a
Significant Subsidiary
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of the Company and the order or decree contemplated in clauses
(i), (ii) or (iii) remains unstayed and in effect for 60
consecutive days; or
(ix) the termination of the Guarantee(s) of either a Guarantor that is
a Significant Subsidiary or group of Guarantors that together constitute a
Significant Subsidiary for any reason not permitted by this Indenture, or
the disaffirmance in writing of any Person acting on behalf of any such
Guarantor or group of Guarantors of its or their Obligations under any such
Guarantee(s).
To the extent that the last day of the period referred to in clauses
(i), (iii), (iv) or (vi) of the immediately preceding paragraph is not a
Business Day, then the first Business Day following such day shall be deemed to
be the last day of the period referred to in such clauses. Any "day" will be
deemed to end as of 11:59 p.m., New York City time.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default with respect to
the Company specified in clauses (vii) and (viii) of Section 6.01 hereof) occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then Outstanding Notes may declare the unpaid principal
of, premium, if any, accrued and unpaid interest and Liquidated Damages, if any,
on all the Notes to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Facility, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Facility or five Business Days after
receipt by the Company and the Representative under the Credit Facility of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default with respect to the Company specified in clauses (vii) or
(viii) of Section 6.01 hereof occurs, all Outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of a majority in principal
amount of the then Outstanding Notes by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except non-payment of
principal or interest that has become due solely because of the acceleration)
have been cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee
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or any Holder of a Note in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of at least a majority in aggregate principal amount of the
Notes then Outstanding (including consents obtained in connection with a tender
offer or exchange for Notes) by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of principal of or premium, if any, or interest on the Notes. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of at least a majority in aggregate principal amount of the
then Outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability. The Trustee may take any other action
which it deems proper which is not inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture,
the Guarantees or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from the
Company;
(b) the Holders of at least 25% in aggregate principal amount of the
then Outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the then Outstanding Notes do not give the Trustee a
direction
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inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, interest, and
Liquidated Damages, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
securities or property payable or deliverable upon the conversion or exchange of
the Notes or on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out
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the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to holders of Senior Debt to the extent required by Article 10
or 12 hereof;
THIRD: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, interest, and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, interest, and Liquidated
Damages, if any, respectively;
FOURTH: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
FIFTH: to the Company, the Guarantors or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then Outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which it
has knowledge, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture or the TIA and the Trustee need perform only
those duties that are specifically set forth in this Indenture or the TIA
and no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the statements
and
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correctness of the opinions contained in, and shall be protected from acting or
refraining from acting upon, any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. Prior to taking, suffering or
admitting any action, the Trustee may consult with counsel of the Trustee's own
choosing and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or Guarantor, as applicable.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner of Notes and may otherwise deal with the Company, the Guarantors or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, the Guarantees or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the
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Company or upon the Company's direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Note pursuant to Section 6.01(i) or (ii) hereof, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain Outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Company has informed the Trustee in writing the
Notes are listed in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any securities exchange
and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Guarantors shall pay to the Trustee from time to
time reasonable compensation for its acceptance of this Indenture and services
hereunder. To the extent permitted by law, the Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify, jointly and severally,
the Trustee against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors
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(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company, the Guarantors or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company and the Guarantors promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company and the Guarantors
shall not relieve the Company and the Guarantors of its obligations hereunder.
The Company and the Guarantors shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
and the Guarantors shall pay the reasonable fees and out-of-pocket expenses of
such counsel. The Company and the Guarantors need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and
the compensation for the services (including the reasonable fees and
out-of-pocket expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in aggregate principal amount of the then Outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
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(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then Outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then Outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and the duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities. The Trustee and its direct parent shall at all times have a
combined capital surplus of at least $50.0 million as set forth in its most
recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. DISCHARGE OF INDENTURE
The Company and the Guarantors, if any, may terminate their obligations
under the Notes, the Guarantees, if any, and this Indenture, except the
obligations referred to in the last paragraph of this Section 8.01, if there
shall have been cancelled by the Trustee or delivered to the Trustee for
cancellation all Notes theretofore authenticated and delivered (other than any
Notes that are asserted to have been destroyed, lost or stolen and that shall
have been replaced as provided in Section 2.06 hereof) and the Company has all
sums payable by it hereunder or deposited all required sums with the Trustee.
After such delivery, the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantor's obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 2.06, 7.07, 8.06. 8.07 and 8.08 hereof
shall survive.
SECTION 8.02. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.03 or 8.04 hereof be applied to all Outstanding Notes and the
Guarantees upon compliance with the conditions set forth below in this Article
8.
SECTION 8.03. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.02 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.05 hereof, be
deemed to have been discharged from its obligations with respect to all
Outstanding Notes and Guarantees on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be no longer "Outstanding", and to have satisfied all its obligations
under such Notes and Guarantees and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same),
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except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Notes to receive payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Notes when such payments are due or, on the redemption
date, as the case may be, solely from the trust referred to in Section 8.05(a),
(b) the Company's obligations with respect to such Notes under Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee,
including, without limitation, thereunder Section 7.07, 8.06 and 8.08 hereunder
and the Company's obligations in connection therewith, and
(d) the provisions of this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.03 notwithstanding the prior exercise of its option under
Section 8.04 hereof.
SECTION 8.04. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.02 hereof of the option
applicable to this Section 8.04, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.05 hereof, be
released from its obligations under the covenants contained in Sections 3.09,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 5.01 and
11.01 hereof with respect to the Outstanding Notes and Guarantees on and after
the date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes and Guarantees shall thereafter be deemed not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Notes and Guarantees shall not be
deemed Outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the Outstanding Notes and Guarantees, the
Company, its Subsidiaries or any Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Guarantees shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.02 hereof of the option
applicable to this Section 8.04 hereof, subject to the satisfaction of the
conditions set forth in Section 8.05 hereof, Sections 6.01(iii) through 6.01(vi)
and Section 6.01(ix) hereof shall not constitute Events of Default.
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SECTION 8.05. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.03 or 8.04 hereof to the Outstanding Notes and the Guarantees:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, (i) cash in United States dollars,
non-callable Government Securities, or a combination thereof, which through the
scheduled payment of principal, premium, if any, interest and Liquidated
Damages, if any, in respect thereof in accordance with their terms will provide,
not later than one day before the due date of payment, cash in United States
dollars in an amount, or (iii) a combination thereof, in such amounts as shall
be sufficient, in the opinion of Price Waterhouse LLP or its successor or
another nationally recognized firm of independent public accountants reasonably
acceptable to the Trustee expressed in a written certification thereof delivered
to the Trustee, to pay and discharge the principal of, premium, if any, interest
and Liquidated Damages, if any, on the Outstanding Notes on the Stated Maturity
or on the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel confirming that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date hereof, there has been a change
in the applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the
Outstanding Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.04 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel confirming that the
Holders of the Outstanding Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and shall be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Section 6.01(vii) and (viii) hereof are concerned, at any time in the period
ending on the 91st day after the date of deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument
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to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound, including, without limitation, the
Credit Facility;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the trust
funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company, as applicable,
with the intent of preferring the Holders of Notes over the other creditors of
the Company, with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.06. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.07 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.06, the
"Trustee") pursuant to Section 8.05 hereof in respect of the Outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.05 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon receipt by the
Trustee of a Company Request and be relieved of all liability with respect to
any money or non-callable Government Securities held by it as provided in
Section 8.05 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.05(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
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SECTION 8.07. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
one year after such principal, and premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Company on its
written request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as 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.
SECTION 8.08. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.03 or
8.04 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company and the Guarantors under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.03 or 8.04 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.03 or 8.04 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, interest or Liquidated Damages, if any, on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.02 of this Indenture, without the consent of
any Holder of Notes the Company, the Guarantors and the Trustee may amend or
supplement this Indenture, the Guarantees or the Notes:
(a) to cure any ambiguity, defect or to correct or supplement an
provision herein that may be inconsistent with any other provisions herein;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Notes in the case of a merger or consolidation
pursuant to Article 5 or Article 11 hereof;
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(d) to make any change or any provision (i) that would provide any
additional rights or benefits to the Holders of the Notes, (ii) that is required
to make a Guarantee a binding obligation under state law or (iii) that does not
adversely affect the legal rights hereunder of any Holder of the Note;
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; and
(f) to allow any Guarantor to guarantee the Notes.
Upon receipt by the Trustee of a Company Request accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided in (i) the fourth and fifth paragraphs of this
Section 9.02 and (ii) Sections 8.02, 8.03 and 8.04 hereof, in connection with
clause (b) below, with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then Outstanding (including consents
obtained in connection with a tender offer or exchange offer for Notes), this
Indenture, the Notes or the Guarantees may be amended or supplemented, and
subject to Sections 6.02, 6.04 and 6.07 hereof, any existing default or
compliance with any provision of this Indenture, the Notes or the Guarantees may
be waived.
Upon receipt by the Trustee of a Company Request accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein continued,
but the Trustee shall not be obligated to, enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment,
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supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental Indenture or waiver.
Subject to Sections 6.02, 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then Outstanding may waive
compliance in a particular instance by the Company or the Guarantors with any
provision of this Indenture, the Notes or the Guarantees. However, without the
consent of each Holder affected, an amendment, or waiver may not (with respect
to any Note or Guarantee held by a nonconsenting Holder):
(a) reduce the principal amount of Notes;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the
Notes or any Change of Control Offer;
(c) reduce the rate of or change the time for payment of interest or
Liquidated Damages, if any, on any Notes;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of
the Notes and a waiver of the payment default that resulted from
such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) waive a redemption or repurchase payment with respect to any Note;
or
(g) make any change in the foregoing amendment and waiver provisions
of this Article 9.
Without obtaining any necessary consents under the Credit Facility, the
Company may not amend or supplement the provisions contained in Article 10 and
Article 12 hereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Guarantees or the
Notes shall be set forth in an amended or supplemental Indenture that complies
with the TIA as then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In signing or refusing to sign any amended or supplemental
indenture the Trustee shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon, in addition to the documents required
by Section 14.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company and the Guarantors in
accordance with its terms.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees, that
the payment of all Obligations on the Notes shall be subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full of all existing and future Senior Debt, whether
outstanding on the date hereof or hereafter incurred, and that the subordination
is for the benefit of the holders of Senior Debt.
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SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of the Company in a
liquidation or dissolution of the Company, or in a bankruptcy, reorganization,
insolvency, receivership or any such proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshalling of the
Company's assets and liabilities, the holders of Senior Debt will be entitled to
receive payment in full in cash or Cash Equivalents of all Obligations due in
respect of such Senior Debt (including interest after the commencement of any
such proceeding at the rate specified in the applicable Senior Debt, whether or
not allowed or allowable in such proceeding) before the Holders of Notes will be
entitled to receive any payment with respect to the Notes, and until all
Obligations with respect to Senior Debt are paid in full in cash or Cash
Equivalents, any payment or distribution to which the Holders of Notes would be
entitled shall be made to the holders of Senior Debt (except that Holders of
Notes may receive and retain (i) Permitted Junior Securities and (ii) payments
made from the defeasance trust created pursuant to Article 8 hereof). The term
"payment" means, with respect to the Notes, any payment, whether in cash or
other assets or property, of interest, principal (including redemption price and
purchase price), premium, Liquidated Damages or any other amount on, of or in
respect of the Notes, any other acquisition of Notes and any deposit into the
trust described in Article 8 above. The verb "pay" has a correlative meaning.
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company also may not make any payment or distribution upon or in
respect of the Notes (except that Holders of Notes may receive and retain (a)
Permitted Junior Securities and (b) payments made from the defeasance trust
created pursuant to Article 8 hereof), if (i) a default in the payment of any
Obligations with respect to Designated Senior Debt occurs and is continuing (a
"payment default") or any other default on Designated Senior Debt occurs and the
maturity of such Designated Senior Debt is accelerated in accordance with its
terms or (ii) a default other than a payment default, occurs and is continuing
with respect to Designated Senior Debt that permits holders of Designated Senior
Debt as to which such default relates to accelerate its maturity (a "non-payment
default") and, in the case of this clause (ii) only, the Trustee receives a
notice of such default (a "Payment Blockage Notice") from the Company or the
holders of any Designated Senior Debt.
The Company may and shall resume payments on the Notes (a) in the case
of a payment default, upon the date on which such default is cured or waived
and, in the case of Designated Senior Debt that has been accelerated, such
acceleration has been rescinded, and (b) in the case of a non-payment default,
the earlier of the date on which such non-payment default is cured or waived or
179 days after the date on which the applicable Payment Blockage Notice is
received unless the maturity of any Designated Senior Debt has been accelerated.
No new period of payment blockage may be commenced on account of any non-payment
default unless and until 360 days have elapsed since the initial effectiveness
of the immediately prior Payment Blockage Notice. No non-payment default that
existed or was continuing on the date of delivery of any Payment Blockage Notice
to the
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Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice
unless such default shall have been cured or waived for a period of not less
than 90 days.
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall provide the names of the Representatives of the Senior Debt to
the Trustee and the Trustee shall promptly notify such Representatives of Senior
Debt of the acceleration. The Company may not pay any such accelerated Notes
until five Business Days after such holders receive notice of such acceleration
and, thereafter, may make such payment only if otherwise permissible under this
Article 10.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives any payment of any Obligations
with respect to the Notes at a time when the Trustee has actual knowledge that
such payment is prohibited by Section 10.02 or 10.03 hereof, such Payment shall
be held by the Trustee, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
In the event that any Holder receives any payment of any Obligations
with respect to the Notes at a time when such payment is prohibited by Section
10.02 or 10.03 hereof, such payment shall be held by such Holder, in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or negligence of the Trustee.
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SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article 10, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article 10.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full in cash or Cash Equivalents and
until the Notes are paid in full, Holders shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Debt. A distribution made under this Article 10 to holders
of Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on the Notes.
SECTION 10.08. RELATIVE RIGHTS.
This Article 10 defines the relative rights of the Holders and holders
of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and the Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of,
premium, if any, interest and Liquidated Damages, if any, on the Notes in
accordance with their terms;
(ii) affect the relative rights of Holders and creditors of the Company
other than their rights in relation to holders of Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or an Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of,
premium, if any, interest or Liquidated Damages, if any, on a Note on the due
date, the failure is nevertheless a Default or an Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be prejudiced or impaired by any
act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
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SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10; provided that this Section
10.11 shall not limit or modify the rights of holders of Senior Debt to recover
any such payments from the Holders of the Notes pursuant to Sections 10.02,
10.03 and/or 10.05. Only the Company or a Representative may give the notice.
Nothing in this Article 10 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, a Representative of Designated Senior Debt is hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes.
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ARTICLE 11
GUARANTEE OF NOTES
SECTION 11.01. GUARANTEES.
Subject to the provisions of this Article 11, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes and the Obligations of the Company hereunder and
thereunder, that:
(a) the principal of, premium, if any, interest and Liquidated Damages,
if any, on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any (to the extent
permitted by law), interest on any interest, if any, and Liquidated Damages, if
any, on the Notes, and all other payment Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full and
performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes
or any of such other Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed or any performance so guaranteed for whatever reason the
Guarantors will be jointly and severally obligated to pay the same immediately.
An Event of Default under this Indenture or the Notes shall constitute
an event of default under the Guarantees, and shall entitle the Holders to
accelerate the Obligations of the Guarantors hereunder in the same manner and to
the same extent as the Obligations of the Company. Subject to the provisions of
this Article 11, the Guarantors hereby agree that their Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives 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 this Guarantee will not be
discharged except by complete performance of the Obligations contained in the
Notes and this Indenture. If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors, or any Note Custodian,
Trustee, liquidator or other similar official acting in relation to either
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the Company or the Guarantors, any amount paid by either the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the Obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee.
SECTION 11.02. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 11.01, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form of
Exhibit D shall be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor, by manual or facsimile signature, by an
Officer of such Guarantor.
Each Guarantor hereby agrees that its Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
SECTION 11.03. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture shall prohibit a merger between a Guarantor and another
Guarantor or a merger between a Guarantor and the Company or a Holding Company
Restructuring.
(b) Except as provided in Section 11.03(a) hereof or in a transaction
referred to in Section 11.04 hereof, no Guarantor may consolidate with or merge
with or into (whether or not such Guarantor is the surviving Person), another
Person, whether or not affiliated with such Guarantor, unless:
(i) the Person formed by or surviving any such consolidation or merger
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(if other than such Guarantor) assumes all the obligations of such
Guarantor under the Notes and the Indenture pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee in
the Form of Exhibit E hereto (provided, that this clause (i) shall not
apply to any merger or consolidation contemplated by clause (a) of Section
11.04);
(ii) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(iii) the Company would be permitted, immediately after giving effect
to such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio set forth in Section 4.09
hereof.
(c) In the case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and substantially in the form of Exhibit E
hereto, of the Guarantee and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. All of the
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Guarantees had
been issued at the date of the execution hereof.
(d) Upon the redesignation by the Company of a Guarantor from
Restricted Subsidiary to an Unrestricted Subsidiary in compliance with the
provisions of this Indenture, such Subsidiary shall cease to be a Guarantor and
shall be relieved of all obligations and covenants under this Indenture and the
Notes and Guarantees.
(e) Concurrently with the Defeasance of the Notes under Section 8.02,
the Guarantors shall cease to be Guarantors and shall be relieved of all
obligations and covenants under this Indenture and the Notes and Guarantees.
SECTION 11.04. RELEASES FOLLOWING SALE OF ASSETS.
In the event of (a) a sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or otherwise
(provided that in the case of a merger or consolidation, the provisions of
clauses (ii) and (iii) of Section 11.03(b) are complied with), (b) a sale or
other disposition of all the Capital Stock of any Guarantor or (c) a Guarantor
being designated by the Company as an Immaterial Subsidiary, then such Guarantor
will automatically and unconditionally be released, discharged and relieved of
its Guarantee and any obligations thereunder; provided that, in the case of any
such transaction which constitutes an Asset Sale, the Net Proceeds of such sale
or other disposition are applied in accordance with the applicable provisions of
Section 4.10 hereof.
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SECTION 11.05. ADDITIONAL GUARANTORS.
Any Person that was not a Guarantor on the date of this Indenture may
become a Guarantor by executing and delivering to the Trustee (a) a supplemental
indenture in substantially the form of Exhibit E hereto and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Person and constitutes the legal, valid, binding and
enforceable obligation of such Person (subject to such customary exceptions
concerning creditors rights', fraudulent transfers, public policy and equitable
principles).
SECTION 11.06. LIMITATION ON GUARANTOR LIABILITY.
For purposes hereof, each Guarantor's liability shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Company under the
Notes and this Indenture and (ii) the amount, if any, which would not have (A)
rendered such Guarantor "insolvent" (as such term is defined in the United
States Bankruptcy Code and in the Debtor and Creditor Law of the State of New
York) or (B) left such Guarantor with unreasonably small capital at the time its
Guarantee of the Notes was entered into; provided that, it will be a presumption
in any lawsuit or other proceeding in which a Guarantor is a party that the
amount guaranteed pursuant to the Guarantee is the amount set forth in clause
(i) above unless any creditor, or representative of creditors of such Guarantor,
or debtor in possession or trustee in bankruptcy of the Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of the Guarantor is the
amount set forth in clause (ii) above. In making any determination as to
solvency or sufficiency of capital of a Guarantor in accordance with the
previous sentence, the right of such Guarantor to contribution from other
Guarantors, and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
SECTION 11.07. "TRUSTEE" TO INCLUDE PAYING AGENT.
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 11 shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 11 in place of the Trustee.
SECTION 11.08. RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree, as between themselves, that if any
Guarantor shall become an Excess Funding Guarantor (as defined below) by reason
of the payment by such Guarantor of any of its obligations under its Guarantee,
each other Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Guarantor's Pro Rata Share (as defined below and determined, for
this purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in
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respect of such obligations. The payment obligation of a Guarantor to any Excess
Funding Guarantor under this Section 11.08 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under its Guarantee and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all such obligations.
For purposes of this Section 11.08, (i) "Excess Funding Guarantor"
shall mean, in respect of any obligations under its Guarantee, a Guarantor that
has paid an amount in excess of its Pro Rata Share of such obligations, (ii)
"Excess Payment" shall mean, in respect of any such obligations, the amount paid
by an Excess Funding Guarantor in excess of its Pro Rata Share of such
obligations and (iii) "Pro Rata Share" shall mean, for any Guarantor, the ratio
(expressed as a percentage) of (A) the amount by which the aggregate present
fair saleable value of all properties of such Guarantor (excluding any shares of
stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor under
this Indenture and any obligations of any other Guarantor that have been
guaranteed by such Guarantor) to (B) the amount by which the aggregate fair
saleable value of all properties of all of the Guarantors exceeds the amount of
all the debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Company and the
Guarantors under this Indenture) of all of the Guarantors, determined (1) with
respect to any Guarantor that is a party hereto on the Issue Date, as of the
Issue Date, and (2) with respect to any other Guarantor, as of the date such
Guarantor becomes a Guarantor hereunder.
ARTICLE 12
SUBORDINATION OF GUARANTEES
SECTION 12.01. AGREEMENT TO SUBORDINATE.
The Guarantors agree, and each Holder by accepting a Note agrees, that
the payment of all Guarantee Obligations shall be subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all existing and future Senior Debt, whether
outstanding on the date hereof or thereafter incurred, and that the
subordination is for the benefit of the holders of Senior Debt.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or any such proceeding relating to such Guarantor or
its property, an assignment for the benefit of creditors or any marshalling of
such Guarantor's assets and liabilities, the holders of Senior Debt of such
Guarantor will be entitled to receive payment in full in cash or Cash
Equivalents of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate specified in
the applicable Guarantor Senior Debt, whether or not allowed or allowable in
such proceeding) before the
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Holders of Notes will be entitled to receive any payment under the Guarantee of
such Guarantor, and until all Obligations with respect to Senior Debt of any
Guarantor are paid in full in cash or Cash Equivalents, any payment or
distribution under the Guarantee of such Guarantor to which the Holders of Notes
would be entitled shall be made by such Guarantor to the holders of Senior Debt
of such Guarantor (except that Holders of Notes may receive (i) Permitted Junior
Securities and (ii) payments made from the defeasance trust created pursuant to
Article 8 hereof).
SECTION 12.03. DEFAULT ON DESIGNATED GUARANTOR SENIOR DEBT.
No Guarantor may make any payment or distribution upon or in respect of
such Guarantor's Guarantee (except that Holders of Notes may receive and retain
(a) Permitted Junior Securities and (b) payments made from the defeasance trust
created pursuant to Article 8 hereof) if (i) a payment default with respect to
Designated Guarantor Senior Debt of such Guarantor occurs and is continuing or
any other default on Designated Guarantor Senior Debt of such Guarantor occurs
and the maturity of such Designated Guarantor Senior Debt is accelerated in
accordance with its terms or (ii) a non-payment default occurs and is continuing
with respect to Designated Guarantor Senior Debt of such Guarantor that permits
holders of such Designated Guarantor Senior Debt as to which such default
relates to accelerate its maturity and, in the case of clause (ii) only, the
Trustee receives a Payment Blockage Notice from the Company or the holders of
such Designated Guarantor Senior Debt.
Such Guarantor may and shall resume payments on its Guarantee (a) in
the case of a payment default, upon the date on which such default is cured or
waived and, in the case of Designated Guarantor Senior Debt that has been
accelerated, such acceleration has been rescinded, and (b) in case of a
non-payment default, the earlier of the date on which such non-payment default
is cured or waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Guarantor
Senior Debt of such Guarantor has been accelerated. No new period of payment
blockage may be commenced on account of any non-payment default unless and until
360 days have elapsed since the initial effectiveness of the immediately prior
Payment Blockage Notice. No non-payment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee shall be,
or be made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been cured or waived for a period of not less than 90 days.
SECTION 12.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
each Guarantor shall provide the names of the Representatives of the Senior Debt
of such Guarantor to the Trustee and the Trustee shall promptly notify such
Representatives of such Senior Debt of the acceleration.
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SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives any payment of any Guarantee
Obligations with respect to a Guarantor at a time when the Trustee has actual
knowledge that such payment is prohibited by Section 12.02 or 12.03 hereof, such
Payment shall be held by the Trustee, in trust for the benefit of, and shall be
paid forthwith over and delivered, upon written request, to, the holders of
Senior Debt of such Guarantor as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
such Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of all Obligations with respect to such Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
In the event that any Holder receives any payment of any Guarantee
Obligations of a Guarantor at a time when such payment is prohibited by Section
12.02 or 12.03 hereof, such payment shall be held by such Holder, in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt of such Guarantor as their interests may
appear or their Representative under the indenture or other agreement (if any)
pursuant to which such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to such Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 12, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the
Guarantors or any other Person money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 12, except if such payment is
made as a result of the willful misconduct or negligence of the Trustee.
SECTION 12.06. NOTICE BY GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the Paying Agent
of any facts known to such Guarantor that would cause a payment of any Guarantee
Obligations to violate this Article 12, but failure to give such notice shall
not affect the subordination of the Guarantees to the Senior Debt as provided in
this Article 12.
SECTION 12.07. SUBROGATION.
After all Senior Debt is paid in full in cash or Cash Equivalents and
until the
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Guarantees are paid in full, Holders shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Guarantees) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Debt. A distribution made under this Article 12 to holders
of Senior Debt that otherwise would have been made to Holders is not, as between
the Guarantors and Holders, a payment by the Guarantors on the Notes.
SECTION 12.08. RELATIVE RIGHTS.
This Article 12 defines the relative rights of the Holders and holders
of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Guarantors and the Holders, the obligation
of the Guarantors, which is absolute and unconditional, to pay principal
of, premium, if any, interest and Liquidated Damages, If any, on the Notes
in accordance with the terms of the Guarantees;
(ii) affect the relative rights of Holders and creditors of the
Guarantors other than their rights in relation to holders of Senior Debt;
or
(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or an Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders.
If any Guarantor fails because of this Article 12 to pay its Guarantee
Obligations in accordance with its Guarantee on the due date, the failure is
nevertheless a Default or an Event of Default.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY GUARANTOR.
No right of any holder of Senior Debt to enforce the subordination of
the Guarantee Obligations shall be prejudiced or impaired by any act or failure
to act by the Guarantors or any Holder or by the failure of the Guarantors or
any Holder to comply with this Indenture.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of a Guarantor referred to
in this Article 12, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee
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or to the Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
Indebtedness of such 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 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Guarantees, unless the Trustee shall have received at
its Corporate Trust Office at least 5 Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Guarantees to violate this Article 12. Only the Guarantors
or a Representative may give the notice. Nothing in this Article 12 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, a Representative of Designated Guarantor Senior Debt is hereby authorized
to file an appropriate claim for and on behalf of the Holders of the Notes.
ARTICLE 13
HOLDERS' LISTS
SECTION 13.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, and
(b) 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
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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 Note Registrar.
SECTION 13.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) 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 13.01 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 13.01
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Notes, 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 the names and addresses of Holders made pursuant
to the Trust Indenture Act.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that 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 14.02. NOTICES.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture by
the Company, any Guarantor or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail registered or
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
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If to the Company or any Guarantor:
CONMED Corporation
310 Broad Street
Utica, New York 13501
Attention: Joseph J. Corasanti, Esq.
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Attention: Robert W. Downes, Esq.
If to the Trustee:
First Union National Bank
10 State House Square
Hartford, CT 06103
Attention: W. Jeffrey Kramer
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; three Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
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 Note 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
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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.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 14.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Note Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 14.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 14.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 14.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
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
Officer's 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 requirement set forth
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in this Indenture. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
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 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 stating that the
information with respect to such factual matters is in the possession of the
Company, 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 14.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Note Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
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SECTION 14.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS; BENEFITS OF INDENTURE.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company under the Notes, any Guarantee or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes
and any Guarantee. Nothing in this Indenture or in the Notes or the Guarantees,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, the Holders of Notes and holders of Senior Debt, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 14.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE GUARANTEES AND THE NOTES.
SECTION 14.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 14.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and
the Notes shall bind their respective successors and assigns. All agreements of
the Trustee in this Indenture shall bind its successors and assigns.
SECTION 14.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 14.12. ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 14.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the
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terms or provisions hereof.
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SIGNATURES
Dated as of March 5, 1998
CONMED CORPORATION
By: /s/ Robert D. Shallish, Jr.
------------------------------
Name: Robert D. Shallish, Jr.
Title: Vice President-Finance and
Assistant Secretary
ASPEN LABORATORIES, INC.
By: /s/ Thomas M. Acey
---------------------
Name: Thomas M. Acey
Title: Secretary and Treasurer
BIRTCHER MEDICAL SYSTEMS, INC.
By: /s/ Robert D. Shallish, Jr.
------------------------------
Name: Robert D. Shallish, Jr.
Title: Vice President and Treasurer
CONMED ANDOVER MEDICAL, INC.
By: /s/ Thomas M. Acey
---------------------
Name: Thomas M. Acey
Title: Secretary and Treasurer
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<PAGE>
ONSOLIDATED MEDICAL
EQUIPMENT INTERNATIONAL, INC.
By: /s/ Thomas M. Acey
---------------------
Name: Thomas M. Acey
Title: Controller
NDM, INC.
By: /s/ Robert D. Shallish, Jr.
------------------------------
Name: Robert D. Shallish, Jr.
Title: Vice President
LINVATEC CORPORATION, INC.
By: /s/ Robert D. Shallish, Jr.
------------------------------
Name: Robert D. Shallish, Jr.
Title: Vice President
ENVISION MEDICAL CORPORATION
By: /s/ Thomas M. Acey
---------------------
Name: Thomas M. Acey
Title: Assistant Secretary
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<PAGE>
Dated as of March 5, 1998
FIRST UNION NATIONAL BANK
By: /s/ W. Jeffrey Kramer
---------------------
W. Jeffrey Kramer
Vice President
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<PAGE>
EXHIBIT A
[LEGEND FOR GLOBAL SECURITY: UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS 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 UNDER SUCH LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY
PREDECESSOR OF THIS SECURITY UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (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, TO A PERSON WHO
IS, OR WHO THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS
<PAGE>
DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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, OR (D) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND IN EACH OF THE FOREGOING CASES SUCH OFFER, SALE OR OTHER TRANSFER IS IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF A SATISFACTORY OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM PROVIDED FOR
IN THE INDENTURE (A COPY OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE THEN HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION
TERMINATION DATE. ANY TRANSFEREE OF THIS SECURITY SHALL BE DEEMED TO HAVE
REPRESENTED EITHER (X) THAT IT IS NOT USING THE ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT ("ERISA") OR THE
INTERNAL REVENUE CODE (THE "CODE") TO PURCHASE THIS SECURITY OR (Y) THAT ITS
PURCHASE AND CONTINUED HOLDING OF THE SECURITY WILL BE COVERED BY A U.S.
DEPARTMENT OF LABOR CLASS EXEMPTION (WITH RESPECT TO PROHIBITED TRANSACTIONS
UNDER SECTION 406(A) OF ERISA).
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9% SENIOR SUBORDINATED NOTES DUE 2008
Cusip No. 207 410 AA9 $
CONMED CORPORATION
promises to pay to
or registered assigns,
the principal sum of $
Dollars [or such greater or lesser amount as indicated on the Schedule of
Exchanges of Definitive Notes on the reverse hereof] on* March 15, 2008
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Authentication: Dated: , 1998
This is one of the Notes referred
to in the within-mentioned Indenture.
First Union National Bank,
as Trustee CONMED Corporation
By: By:
Authorized Officer
By:
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<PAGE>
- -------------------
* This phrase should be included only if the Note is issued in global
form.
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<PAGE>
9% SENIOR SUBORDINATED NOTES DUE 2008
1. INTEREST. CONMED Corporation, a New York corporation, or its
successor (the "Company"), promises to pay interest on the principal amount of
this Note at the rate of 9% per annum and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company will pay interest and Liquidated Damages in United States
dollars (except as otherwise provided herein) semi-annually in arrears on March
15 and September 15, commencing on September 15, 1998 or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date, except in the case of the original issuance of Notes, in which case
interest shall accrue from the date of authentication. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1.0% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any (without regard to any applicable grace periods), from time to time on
demand at the same rate to the extent lawful. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the March 1 or
September 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.11 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, interest
and Liquidated Damages, if any, at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that all payments, premium, if any, and
interest and Liquidated Damages, if any, with respect to Notes held by Holders
holding in excess of $1.0 million in aggregate principal amount of Notes that
have given wire transfer instructions to the Company will be required to be made
by wire transfer of immediately available funds to the accounts specified by the
Holders thereof. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. PAYING AGENT AND NOTE REGISTRAR. Initially, First Union National
Bank, the Trustee under the Indenture, shall act as Paying Agent and Note
Registrar. The Company may change any Paying Agent or Note Registrar without
notice to
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any Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of March 5, 1998 ("Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured Obligations of the
Company limited to $130,000,000 in aggregate principal amount, plus amounts, if
any, sufficient to pay premium, if any, interest or Liquidated Damages, if any,
on Outstanding Notes as set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes shall not be
redeemable at the Company's option prior to March 15, 2003. Thereafter, the
Notes shall be subject to redemption at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, together
with accrued and unpaid Interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on March 15 of the years indicated below:
Year Percentage
---- ----------
2003...................................... 104.500%
2004...................................... 103.000%
2005...................................... 101.500%
2006 and thereafter....................... 100.000%
Notwithstanding the foregoing, at any time prior to March 15, 2001, the
Company on one or more occasions may redeem up to 35% of the aggregate principal
amount of Notes originally issued with the net proceeds of one or more offerings
of common stock of the Company for cash at a redemption price of 109.000% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date of redemption; provided that at
least 65% of the aggregate principal amount of the Notes remain Outstanding
immediately after the occurrence of each such redemption.
Any redemption pursuant to Section 3.07 of the Indenture shall be made
pursuant to the provisions of Section 3.01 through 3.06 thereof.
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6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase.
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder describing the transaction or transactions that constitute
the Change of Control setting forth the procedures governing the Change of
Control Offer required by the Indenture.
(b) No later than 30 business days after the aggregate amount of Excess
Proceeds held by the Company in connection with an Asset Sale exceeds $15.0
million, the Company shall, pursuant to Section 3.09 of the Indenture, (i) make
an offer to all Holders of Notes and (ii) prepay, purchase or redeem (or make an
offer to do so) any other Pari Passu Indebtedness of the Company in accordance
with provisions requiring the Company to prepay, purchase or redeem such
Indebtedness with the proceeds from any asset sales (or offer to do so), pro
rata in proportion to the respective principal amounts of the Notes and such
other Indebtedness required to be prepaid, purchased or redeemed or tendered for
pursuant to such offer (an "Asset Sale Offer"), to purchase the maximum
principal amount of Notes and of such Indebtedness that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, if any to the date of purchase, in accordance with the
procedures set forth in Section 3.09 of the Indenture.
(c) Holders of the Notes that are the subject of an offer to purchase
will receive a Change of Control Offer or Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased by
completing the form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date, interest and Liquidated Damages, if any, cease to
accrue on the Notes or portions thereof called for
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<PAGE>
redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in initial denominations of $1,000 and integral multiples of
$1,000. The transfer of the Notes may be registered and the Notes may be
exchanged as provided in the Indenture. The Note Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. SUBORDINATION. Each Holder by accepting a Note agrees that the
payment of principal, premium, if any, interest and Liquidated Damages, if any,
on each Note is subordinated in right of payment, to the extent and in the
manner provided in Article 10 of the Indenture, to the prior payment in full of
all existing and future Senior Debt (whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed), and the
subordination is for the benefit of the holders of Senior Debt.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Notes and the Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then Outstanding (including consents obtained in
connection with a tender offer or exchange offer for Notes), and any existing
Default or compliance with any provision of the Indenture, the Notes or the
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then Outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Without obtaining any necessary consents under the Credit Facility, the
Company may not amend or supplement the subordination provisions with respect to
the Notes.
Without the consent of each Holder affected, however, an amendment or
waiver may not (with respect to any Note held by a non-consenting Holder): (i)
reduce the principal amount of Notes; (ii) reduce the principal of or change the
fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes or any Change of Control Offer; (iii) reduce the rate of
or change the time for payment of interest or Liquidated Damages, if any, on any
Notes; (iv) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages, if any, on the Notes
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(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration); (v) make any Note payable in
money other than that stated in the Notes; (vi) waive a redemption or repurchase
payment with respect to any Note; or (vii) make any change in the foregoing
amendment and waiver provisions.
Without the consent of any Holder of Notes, the Company, the Guarantors
and the Trustee may amend or supplement the Indenture, the Guarantees or the
Notes to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or a Guarantor's obligations to
Holders of the Notes in the case of a merger or consolidation, to make any
change or provision (i) that would provide any additional rights or benefits to
the Holders of the Notes, (ii) that is required to make a Guarantee a binding
obligation under state law or (iii) that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the TIA or to allow any Guarantor to guarantee the Notes.
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then Outstanding Notes may
declare all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice") and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Facility or five Business
Days after receipt by the Company and the Representative under the Credit
Facility of such Acceleration Notice but only if such Event of Default is then
continuing. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company, all Outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then Outstanding Notes may direct the Trustee in its
exercise of any trust or Power. The Holders of a majority in aggregate principal
amount of the Notes then Outstanding, by notice to the Trustee, may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under the Indenture, except a continuing Default or Event
of Default in the payment of interest or premium, if any, on, or principal of,
the Notes. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in such Holders' interest. The Company is required to
deliver to the Trustee annually a statement
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regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default to deliver to the Trustee a
statement specifying such Default or Event of Default.
14. GUARANTEES. The Notes will be guaranteed (the "Guarantee"), jointly
and severally, on a senior subordinated basis by the Guarantors. The Guarantees
will be subordinated in right of payment to all existing and future Senior Debt
of the Guarantors.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such, shall
have any liability for any obligations of the Company under the Notes, any
Guarantee or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes and any Guarantee. Nothing in
this Note, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders of Notes and holders of
Senior Debt, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
17. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. ERISA MATTERS. Each Holder of Notes, by its acceptance thereof,
will be deemed to certify that (i) no part of the funds used by such Holder to
purchase the Notes constitutes assets of an employee benefit plan or (ii) the
acquisition and continued holding of the Notes will be covered by a U.S.
Department of Labor class exemption (with respect to prohibited transactions set
forth under Section 406(a) of ERISA).
19. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transfer Restricted Securities shall have all the rights and be
subject to the conditions set forth in the Registration Rights Agreement dated
as of the date hereof, among the Company and Salomon Brothers Inc and Chase
Securities Inc. (the "Registration Rights Agreement").
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21. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
Capitalized terms used herein and not herein defined shall have the
meanings ascribed to such terms in the Indenture.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
CONMED Corporation
310 Broad Street
Utica, New York 13501
Attention: Joseph J. Corasanti
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THE GUARANTEES AND THE NOTES.
A-11
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's Soc. Sec. or Tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Date:
------------------------
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
-----------------------------
A-12
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, state the amount you
elect to have purchased:
$ .
Date:
------------
Your Signature:
-------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
-------------------
A-13
<PAGE>
[FORM OF SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES*]
The following exchanges of a part of this Global Note for Definitive
Notes have been made.
Principal
Amount of Amount of Amount of this
decrease in increase in Global Note Signature of
Principal Principal following such authorized
Date of Amount of this Amount of this decrease (or officer of
Exchange Global Note Global Note increase) Trustee
-------- ------ ---- ------ ---- --------- -------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
- --------------------
* This schedule should be included only if the Note is issued in global
form.
A-14
<PAGE>
EXHIBIT B
[LEGEND FOR GLOBAL SECURITY: UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
B-1
<PAGE>
9% SENIOR SUBORDINATED NOTES DUE 2008
Cusip No. $
CONMED Corporation
promises to pay to
or registered assigns,
the principal sum of $
Dollars [or such greater or lesser amount as indicated on the Schedule of
Exchanges of Definitive Notes on the reverse hereof]* on March 15, 2008
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Authentication: Dated: , 199
This is one of the Notes referred
to in the within-mentioned Indenture.
First Union National Bank,
as Trustee CONMED Corporation
By: By:
Authorized Officer
By:
B-2
<PAGE>
- --------------------
* This phrase should be included only if the Note is issued in global form.
B-3
<PAGE>
9% SENIOR SUBORDINATED NOTES DUE 2008
1. INTEREST. CONMED Corporation, a New York corporation, or its
successor (the "Company"), promises to pay interest on the principal amount of
this Note (which has been exchanged for one of the Company's 9% Senior
Subordinated Notes due 2008 (the "Rule 144A Notes")) at the rate of 9% per annum
and shall pay the Liquidated Damages, if any, payable pursuant to Section 5 of
the Registration Rights Agreement referred to below. The Company will pay
interest and Liquidated Damages in United States dollars (except as otherwise
provided herein) semi-annually in arrears on March 15 and September 15,
commencing on September 15, 1998 or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date"). Interest on
the Notes shall accrue from the most recent date to which interest was paid on
the Rule 144A Notes or, if no interest was paid on the Rule 144A Notes, from the
date of original issuance of the Rule 144A Notes; provided that if there is no
existing Default or Event of Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original issuance of
Notes, in which case interest shall accrue from the date of authentication. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1.0% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any (without regard to any applicable grace periods),
from time to time on demand at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the March 1 or
September 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.11 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, interest
and Liquidated Damages, if any, at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that all payments of principal, premium, if
any, and interest and Liquidated Damages, if any, with respect to Notes held by
Holders holding in excess of $1.0 million in aggregate principal amount of Notes
that have given wire transfer instructions to the Company will be required to be
made by wire transfer of immediately available funds to the accounts specified
by the Holders thereof. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND NOTE REGISTRAR. Initially, First Union National
Bank, the Trustee under the Indenture, shall act as Paying Agent and Note
Registrar. The Company
B-4
<PAGE>
may change any Paying Agent or Note Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of March 5, 1998 ("Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured Obligations of the
Company limited to $130,000,000 in aggregate principal amount, plus amounts, if
any, sufficient to pay premium, if any, interest or Liquidated Damages, if any,
on Outstanding Notes as set forth in Paragraph 2 hereof. The Notes will rank
pari passu with the Rule 144A Notes.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes shall not be
redeemable at the Company's option prior to March 15, 2003. Thereafter, the
Notes shall be subject to redemption at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, together
with accrued and unpaid Interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on March 15 of the years indicated below:
Year Percentage
---- ----------
2003........................................... 104.500%
2004........................................... 103.000%
2005........................................... 101.500%
2006 and thereafter............................ 100.000%
Notwithstanding the foregoing, at any time prior to March 15, 2001, the
Company on one or more occasions may redeem up to 35% of the aggregate principal
amount of Notes originally issued with the net proceeds of one or more offerings
of common stock of the Company for cash at a redemption price of 109.000% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date of redemption; provided that at
least 65% of the aggregate principal amount of the Notes remain Outstanding
immediately after the occurrence of each such redemption.
Any redemption pursuant to Section 3.07 of the Indenture shall be made
pursuant to the provisions of Section 3.01 through 3.06 thereof.
B-5
<PAGE>
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase.
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder describing the transaction or transactions that constitute
the Change of Control setting forth the procedures governing the Change of
Control Offer required by the Indenture.
(b) No later than 30 business days after the aggregate amount of Excess
Proceeds held by the Company in connection with an Asset Sale exceeds $15.0
million, the Company shall, pursuant to Section 3.09 of the Indenture, (i) make
an offer to all Holders of Notes and (ii) prepay, purchase or redeem (or make an
offer to do so) any other Pari Passu Indebtedness of the Company in accordance
with provisions requiring the Company to prepay, purchase or redeem such
Indebtedness with the proceeds from any asset sales (or offer to do so), pro
rata in proportion to the respective principal amounts of the Notes and such
other Indebtedness required to be prepaid, purchased or redeemed or tendered for
pursuant to such offer (an "Asset Sale Offer"), to purchase the maximum
principal amount of Notes and of such Indebtedness that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, if any to the date of purchase, in accordance with the
procedures set forth in Section 3.09 of the Indenture.
(c) Holders of the Notes that are the subject of an offer to purchase
will receive a Change of Control Offer or Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased by
completing the form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date, interest and Liquidated Damages, if any, cease to
accrue on the Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in initial denominations of $1,000 and integral multiples of
$1,000.
B-6
<PAGE>
The transfer of the Notes may be registered and the Notes may be exchanged as
provided in the Indenture. The Note Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or
register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. SUBORDINATION. Each Holder by accepting a Note agrees that the
payment of principal, premium, if any, interest and Liquidated Damages, if any,
on each Note is subordinated in right of payment, to the extent and in the
manner provided in Article 10 of the Indenture, to the prior payment in full of
all existing and future Senior Debt (whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed), and the
subordination is for the benefit of the holders of Senior Debt.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Notes and the Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for Notes), and any existing
default or compliance with any provision of the Indenture, the Notes or the
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then Outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Without obtaining any necessary consents under the Credit Facility, the
Company may not amend or supplement the subordination provisions with respect to
the Notes.
Without the consent of each Holder affected, however, an amendment or
waiver may not (with respect to any Note held by a non-consenting Holder): (i)
reduce the principal amount of Notes; (ii) reduce the principal of or change the
fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes or any Change of Control Offer; (iii) reduce the rate of
or change the time for payment of interest or Liquidated Damages, if any, on any
Notes; (iv) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages, if any, on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration); (v) make any Note payable in
money other than that stated in the Notes; (vi) waive a redemption or repurchase
payment with respect to any Note; or (vii) make any change in the foregoing
amendment and waiver provisions.
Without the consent of any Holder of Notes, the Company, the Guarantors
and the
B-7
<PAGE>
Trustee may amend or supplement the Indenture, the Guarantees or the Notes to
cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to provide for the assumption
of the Company's or a Guarantor's obligations to Holders of the Notes in case of
a merger, transfer of assets or consolidation, to make any change or provision
(i) that would provide any additional rights or benefits to the Holders of the
Notes, (ii) that is required to make a Guarantee a binding obligation under
state law or (iii) that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the Commission
in order to effect or maintain the qualification of the Indenture under the TIA
or to allow any Guarantor to guarantee the Notes.
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then Outstanding Notes may
declare all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice") and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Facility or five Business
Days after receipt by the Company and the Representative under the Credit
Facility of such Acceleration Notice but only if such Event of Default is then
continuing. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company, all outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then Outstanding Notes may direct the Trustee in its
exercise of any trust or Power. The Holders of a majority in aggregate principal
amount of the Notes then Outstanding, by notice to the Trustee, may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under the Indenture, except a continuing Default or Event
of Default in the payment of interest or premium, if any, on, or principal of,
the Notes. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in such Holders' interest. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default to deliver to the Trustee a statement specifying such Default
or Event of Default.
14. GUARANTEES. The Notes will be guaranteed (the "Guarantees"),
jointly and severally, on a senior subordinated basis by the Guarantors. The
Guarantees will be subordinated in right of payment to all existing and future
Senior Debt of the Guarantors.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the
B-8
<PAGE>
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such, shall
have any liability for any obligations of the Company under the Notes, any
Guarantee or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes and any Guarantee. Nothing in
this Note, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders of Notes and holders of
Senior Debt, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
17. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. ERISA MATTERS. Each Holder of Notes, by its acceptance thereof,
will be deemed to certify that (i) no part of the funds used by such Holder to
purchase the Notes constitutes assets of an employee benefit plan or (ii) the
acquisition and continued holding of the Notes will be covered by a U.S.
Department of Labor class exemption (with respect to prohibited transactions set
forth under Section 406(a) of ERISA).
19. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
Capitalized terms used herein and not herein defined shall have the
meanings ascribed to such terms in the Indenture.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
B-9
<PAGE>
CONMED Corporation
310 Broad Street
Utica, New York 13501
Attention: Joseph J. Corasanti
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THE GUARANTEES AND THE NOTES.
B-10
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's Soc. Sec. or Tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Date:
-----------------
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
----------------------------
B-11
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, state the amount you
elect to have purchased: $ .
Date:
------------
Your Signature:
----------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
-----------------------
B-12
<PAGE>
[FORM OF SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES*]
The following exchanges of a part of this Global Note for Definitive
Notes have been made.
Principal
Amount of Amount of Amount of this
decrease in increase in Global Note Signature of
Principal Principal following such authorized
Date of Amount of this Amount of this decrease (or officer of
Exchange Global Note Global Note increase) Trustee
-------- ------ ---- ------ ---- --------- -------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
- -------------------
* This schedule should be included only if the Note is issued in global
form.
B-13
<PAGE>
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
OF RULE 144A NOTES]
CERTIFICATE FOR EXCHANGE OR TRANSFER
Re: 9% Senior Subordinated Notes due 2008 ("Rule 144A Notes")
This Certificate relates to $ Principal amount of Notes held
in * book-entry or * definitive form by
(the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Notes and as provided in Section 2.05 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:
[ ] Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.05(a)(ii)(A) or Section 2.05(d)(i)(A) of
the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act") in reliance on Rule 144A (in satisfaction of Section
2.05(a)(ii)(B), section 2.05(b)(i) or Section 2.05(d)(i)(B) of the Indenture).
[ ] Such Note is being transferred in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act. An opinion of counsel to the effect that such transfer does not
require registration under the Securities Act accompanies this Certificate.
[ ] Such Note is being transferred in reliance and in compliance with an
exemption from the registration requirements of the Securities Act, other than
Rule 144A or Rule 144 under the Securities Act. An opinion of counsel to the
effect that such transfer does not require registration under the Securities Act
accompanies this Certificate.
<PAGE>
- --------------------------------------------------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------------
Date:
----------------------------
- ---------------------------------
C-2
<PAGE>
GUARANTEE
Subject to Article 11 of the Indenture, each Guarantor hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes and
the Obligations of the Company under the Notes or under the Indenture, that: (a)
the principal, premium, if any, interest and Liquidated Damages, if any, on the
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any, (to the extent permitted by law)
interest on any interest, if any, and Liquidated Damages, if any, on the Notes
and all other payment Obligations of the Company to the Holders or the Trustee
under the Indenture or under the Notes will be promptly paid in full and
performed, all in accordance with the terms thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
payment Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
11 and Article 12 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Guarantee. The terms of Articles 11 and
12 of the Indenture are incorporated herein by reference. This Guarantee is
subject to release as and to the extent provided in Section 11.04 of the
Indenture. The obligations of the Guarantors to the Holders and to the Trustee
pursuant to the Guarantee and the Indenture are expressly subordinated to the
extent set forth in Article 12 of the Indenture and reference is hereby made to
such Indenture for the precise terms of such subordination.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Guarantor and its respective successors and
assigns to the extent set forth in the Indenture until full and final payment of
all of the Company's Obligations under the Notes and the Indenture and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not a guarantee of collection.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
For purposes hereof, each Guarantor's liability shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Company under the
Notes and the Indenture and (ii) the amount, if any, which would not have (A)
rendered such Guarantor "insolvent" (as such term is
<PAGE>
defined in the United States Bankruptcy Code and in the Debtor and Creditor Law
of the State of New York) or (B) left such Guarantor with unreasonably small
capital at the time its Guarantee of the Notes was entered into; provided that,
it will be a presumption in any lawsuit or other proceeding in which a Guarantor
is a party that the amount guaranteed pursuant to the Guarantee is the amount
set forth in clause (i) above unless any creditor, or representative of
creditors of such Guarantor, or debtor in possession or trustee in bankruptcy of
such Guarantor, otherwise proves in such a lawsuit that the aggregate liability
of the Guarantor is limited to the amount set forth in clause (ii) above. The
Indenture provides that, in making any determination as to the solvency or
sufficiency of capital of a Guarantor in accordance with the previous sentence,
the right of such Guarantor to contribution from other Guarantors and any other
rights such Guarantor may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
<PAGE>
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
, between (the "New Guarantor"), a subsidiary of CONMED
Corporation (the "Company"), and First Union National Bank, as trustee under the
indenture referred to below (the "Trustee"). Capitalized terms used herein and
not defined herein shall have the meaning ascribed to them in the Indenture (as
defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 5, 1998, providing for
the issuance of an aggregate principal amount of $130,000,000 of 9% Senior
Subordinated Notes due 2008 (the "Notes")
WHEREAS, Section 11.05 of the Indenture provides that under certain
circumstances the Company may cause, and Section 11.03 of the Indenture provides
that under certain circumstances, the Company must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall guarantee all of the Company's
Obligations under the Notes pursuant to a Guarantee on the terms and conditions
set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and
severally with all other Guarantors, to guarantee the Company's Obligations
under the Notes and the Indenture on the terms and subject to the conditions set
forth in Article 11 and Article 12 of the Indenture and to be bound by all other
applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Guarantor as such,
shall have any liability for any obligations of the Company or any Guarantor
under the Notes, any
<PAGE>
Guarantees, the Indenture or the Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes. Nothing
in this Note, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders of Notes and the
Holders of Senior Debt, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York shall
govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Guarantor.
E-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
Dated [GUARANTOR]
By:
-------------------------------
Name:
Title:
Dated FIRST UNION NATIONAL BANK,
as Trustee
By:
-------------------------------
Name:
Title:
E-3
EXHIBIT 5
March 25, 1998
CONMED Corporation
310 Broad Street
Utica, New York 13501
Dear Sirs:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by CONMED Corporation, a New York corporation (the
"Company"), of 987,500 shares of the Company's Common Stock, par value $.01 per
share (the "Shares"), to be issued pursuant to the CONMED Corporation 1992 Stock
Option Plan, as it has been and may be amended from time to time (the "Plan"), I
have examined such corporate records, certificates and other documents and such
questions of law as I have considered necessary or appropriate for the purposes
of this opinion.
Upon the basis of such examination, I advise you that, in my opinion,
the Shares have been duly authorized and, when the Registration Statement has
become effective under the Act and the Shares have been duly issued as provided
in the Plan, the Shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, I have, with your approval, relied
as to certain matters on information obtained from officers of the Company and
other sources believed by me to be responsible, and I have assumed that the
signatures on all documents examined by me are genuine, assumptions which I have
not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares. In giving such consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Act.
Very truly yours,
/s/ JOSEPH J. CORASANTI
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 for the CONMED Corporation 1992 Stock Option Plan of our
report dated February 10, 1998, which appears on page F-1 of the CONMED
Corporation's Annual Report on Form 10-K for the year ended December 31, 1997.
PRICE WATERHOUSE LLP
Syracuse, New York
March 25, 1998
