EXHIBIT 4.3
Dentsply International Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
As of March 1, 2001
The Prudential Insurance Company
of America ("Prudential")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential ,
the "Purchasers")
c/o Prudential Capital Group
1114 Avenue of the Xxxxxxxx
Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, DENTSPLY International Inc. (herein
called the "Company"), hereby agrees with you as follows:
1. AUTHORIZATION OF ISSUE OF NOTES.
1A. Authorization of Issue of Series A and Series B
Notes. The Company will authorize the issue of (i) its senior
promissory notes (the "Series A Notes") in the aggregate
principal amount of 82,450,000 Swiss Francs, to be dated the date
of issue thereof, to mature March 1, 2007, to bear interest on
the unpaid balance thereof from the date thereof until the
principal thereof shall have become due and payable at the rate
of 4.42% per annum and on overdue principal, Yield-Maintenance
Amount and interest at the rate specified therein, and to be
substantially in the form of Exhibit A-1 attached hereto and (ii)
its senior promissory notes (the "Series B Notes") in the
aggregate principal amount of 84,400,000 Swiss Francs, to be
dated the date of issue thereof, to mature March 1, 2007, to bear
interest on the unpaid balance thereof from the date thereof
until the principal thereof shall have become due and payable at
the rate of 4.56% per annum and on overdue principal,
Yield-Maintenance Amount and interest at the rate specified
therein, and to be substantially in the form of Exhibit A-2
attached hereto. The terms "Series A Note" and "Series A Notes"
as used herein shall include each Series A Note delivered
pursuant to any provision of this Agreement and each Series A
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Note delivered in substitution or exchange for any such Series A
Note pursuant to any such provision. The terms "Series B Note"
and "Series B Notes" as used herein shall include each Series B
Note delivered pursuant to any provision of this Agreement and
each Series B Note delivered in substitution or exchange for any
such Series B Note pursuant to any such provision.
1B. Authorization of Issue of Shelf Notes. The
Company will authorize the issue of its additional senior
promissory notes (the "Shelf Notes") in the aggregate principal
amount of $50,000,000 (or the equivalent in the Available
Currencies), to be dated the date of issue thereof, to mature, in
the case of each Shelf Note so issued, no more than fifteen years
after the date of original issuance thereof, to have an average
life, in the case of each Shelf Note so issued, of no more than
twelve years after the date of original issuance thereof, to bear
interest on the unpaid balance thereof from the date thereof at
the rate per annum, and to have such other particular terms, as
shall be set forth, in the case of each Shelf Note so issued, in
the Confirmation of Acceptance with respect to such Shelf Note
delivered pursuant to paragraph 2B(5), and to be substantially in
the form of Exhibit A-3 attached hereto. The terms "Shelf Note"
and "Shelf Notes" as used herein shall include each Shelf Note
delivered pursuant to any provision of this Agreement and each
Shelf Note delivered in substitution or exchange for any such
Shelf Note pursuant to any such provision. The terms "Note" and
"Notes" as used herein shall include each Series A Note, each
Series B Note and each Shelf Note delivered pursuant to any
provision of this Agreement and each Note delivered in
substitution or exchange for any such Note pursuant to any such
provision. Notes which have (i) the same final maturity, (ii)
the same principal prepayment dates, (iii) the same principal
prepayment amounts (as a percentage of the original principal
amount of each Note), (iv) the same interest rate, (v) the same
interest payment periods, (vi) the same currency denomination and
(vii) the same date of issuance (which, in the case of a Note
issued in exchange for another Note, shall be deemed for these
purposes the date on which such Note's ultimate predecessor Note
was issued), are herein called a "Series" of Notes.
2. PURCHASE AND SALE OF NOTES. PURCHASE AND SALE
OF NOTES.
2A. Purchase and Sale of Series A and Series B Notes.
The Company hereby agrees to sell to Prudential and, subject to
the terms and conditions herein set forth, Prudential agrees to
purchase from the Company the aggregate principal amounts of
Series A Notes and Series B Notes set forth opposite its name on
the Purchaser Schedule attached hereto at 100% of such aggregate
principal amounts. On March 1, 2001 (herein called the "Series A
Closing Day"), the Company will deliver to Prudential at the
offices of Prudential Capital Group, one or more Series A Notes
and/or Series B Notes registered in its name, evidencing the
aggregate principal amount of Series A Notes and/or Series B
Notes to be purchased by Prudential and in the denomination or
denominations specified with respect to Prudential in the
Purchaser Schedule attached hereto, against payment of the
purchase price thereof by transfer of immediately available funds
for credit to the Company's account as specified in a funding
instruction letter from the Company delivered at least one New
York Business Day prior to the
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Series A Closing Day. Notwithstanding the fact that the Series
A Notes and Series B Notes are denominated in Swiss Francs, the
purchase price to be paid in each case is $50,000,000 (total
purchase price of $100,000,000 for Series A and Series B Notes).
2B. Purchase and Sale of Shelf Notes.
2B(1). FacilityB(1). Facility. Prudential is
willing to consider, in its sole discretion and within limits
which may be authorized for purchase by Prudential and Prudential
Affiliates from time to time, the purchase of Shelf Notes
pursuant to this Agreement. The willingness of Prudential to
consider such purchase of Shelf Notes is herein called the
"Facility". At any time, the aggregate principal amount of Shelf
Notes stated in paragraph 1B, minus the aggregate principal
amount of Shelf Notes purchased and sold pursuant to this
Agreement prior to such time, minus the aggregate principal
amount of Accepted Notes (as hereinafter defined) which have not
yet been purchased and sold hereunder prior to such time, is
herein called the "Available Facility Amount" at such time. For
purposes of the preceding sentence, all aggregate principal
amounts of Shelf Notes and Accepted Notes shall be calculated in
Dollars with the aggregate amount of any Shelf Notes or Accepted
Notes denominated or to be denominated in any Available Currency
other than Dollars being converted to Dollars at the rate of
exchange used by Prudential to calculate the Dollar equivalent at
the time of the applicable Acceptance under paragraph 2B(5).
NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE
EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE
SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH
RESPECT TO SPECIFIC PURCHASES OF SHELF NOTES, AND THE FACILITY
SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY
PRUDENTIAL AFFILIATE.
2B(2). Issuance PeriodB(2). Issuance Period. Shelf
Notes may be issued and sold pursuant to this Agreement until the
earlier of (i) the third anniversary of the date of this
Agreement (or if such anniversary is not a New York Business Day,
the New York Business Day next preceding such anniversary) and
(ii) the thirtieth day after Prudential shall have given to the
Company, or the Company shall have given to Prudential, written
notice stating that it elects to terminate the issuance and sale
of Shelf Notes pursuant to this Agreement (or if such thirtieth
day is not a New York Business Day, the New York Business Day
next preceding such thirtieth day). The period during which
Shelf Notes may be issued and sold pursuant to this Agreement is
herein called the "Issuance Period".
2B(3). Request for Purchase. The Company may from
time to time during the Issuance Period make requests for
purchases of Shelf Notes (each such request being herein called a
"Request for Purchase"). Each Request for Purchase shall be made
to Prudential by facsimile or overnight delivery service, and
shall (i) specify the currency (which shall be an
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Available Currency) of the Shelf Notes covered thereby, (ii)
specify in Dollars the aggregate principal amount of Shelf Notes
covered thereby (or the Dollar equivalent of Shelf Notes to be
denominated in a currency other than Dollars), which shall not be
less than $5,000,000 and not be greater than the Available
Facility Amount at the time such Request for Purchase is made,
(iii) specify the principal amounts, final maturities, principal
prepayment dates and amounts and interest payment periods
(quarterly or semi-annual in arrears) of the Shelf Notes covered
thereby, (iv) specify the use of proceeds of such Shelf Notes,
(v) specify the proposed day for the closing of the purchase and
sale of such Shelf Notes, which shall be a Business Day during
the Issuance Period not less than 10 days and not more than 25
days after the making of such Request for Purchase, (vi) specify
the number of the account and the name and address of the
depository institution to which the purchase prices of such Shelf
Notes are to be transferred on the Closing Day for such purchase
and sale, (vii) certify that the representations and warranties
contained in paragraph 8 are true on and as of the date of such
Request for Purchase and that there exists on the date of such
Request for Purchase no Event of Default or Default, and (viii)
be substantially in the form of Exhibit B attached hereto. Each
Request for Purchase shall be in writing and shall be deemed made
when received by Prudential.
2B(4). Rate QuotesB[(4)]. Rate Quotes. Not later
than five Business Days after the Company shall have given
Prudential a Request for Purchase pursuant to paragraph 2B(3),
Prudential may, but shall be under no obligation to, provide to
the Company by telephone or facsimile, in each case between 9:30
A.M. and 1:30 P.M. New York City local time (or such other time
as Prudential may elect) interest rate quotes for the several
currencies, principal amounts (or the approximate equivalent in
the case of Notes to be denominated in currencies other than the
Dollar, as estimated by Prudential), maturities, principal
prepayment schedules, and interest payment periods of Shelf Notes
specified in such Request for Purchase (each such interest rate
quote provided in response to a Request for Purchase herein
called a "Quotation"). Each Quotation shall represent the
interest rate per annum payable on the outstanding principal
balance of such Shelf Notes at which Prudential or a Prudential
Affiliate would be willing to purchase such Shelf Notes at 100%
of the principal amount thereof.
2B(5). Acceptance. Within the Acceptance Window, an
Authorized Officer of the Company may, subject to paragraph
2B(6), elect to accept on behalf of the Company a Quotation as to
the aggregate principal amount of the Shelf Notes specified in
the related Request for Purchase (each such Shelf Note being
herein called an "Accepted Note" and such acceptance being herein
called an "Acceptance"). The day the Company notifies an
Acceptance with respect to any Accepted Notes is herein called
the "Acceptance Day" for such Accepted Notes. Any Quotation as
to which Prudential does not receive an Acceptance within the
Acceptance Window shall expire, and no purchase or sale of Shelf
Notes hereunder shall be made based on any such expired
Quotation. Subject to paragraph 2B(6) and the other terms and
conditions hereof, the Company agrees to sell to Prudential or a
Prudential Affiliate, and Prudential agrees to purchase, or to
cause the purchase by a Prudential Affiliate of, the Accepted
Notes at 100% of the principal amount of such Notes. As soon as
practicable following the Acceptance Day, the Company, Prudential
and each Prudential Affiliate which is
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to purchase any such Accepted Notes will execute a confirmation
of such Acceptance substantially in the form of Exhibit C
attached hereto (herein called a "Confirmation of Acceptance").
If the Company should fail to execute and return to Prudential
within three Business Days following receipt thereof a
Confirmation of Acceptance with respect to any Accepted Notes,
Prudential may at its election at any time prior to its receipt
thereof cancel the closing with respect to such Accepted Notes by
so notifying the Company in writing.
2B(6). Market Disruption. Notwithstanding the
provisions of paragraph 2B(5), if Prudential shall have provided
a Quotation pursuant to paragraph 2B(4) and thereafter prior to
the time an Acceptance with respect to such Quotation shall have
been notified to Prudential in accordance with paragraph 2B(5)
(i) the domestic market for U.S. Treasury securities or
derivatives shall have closed or there shall have occurred a
general suspension, material limitation, or significant
disruption of trading in securities generally on the New York
Stock Exchange or in the domestic market for U.S. Treasury
securities or derivatives, or (ii) in the case of Shelf Notes to
be denominated in a currency other than Dollars, in the markets
for relevant government securities (which in the case of the
Euro, shall be the German Bund) or the spot and forward currency
market, the financial futures market or the interest rate swap
market, then such Quotation shall expire, and no purchase or sale
of Shelf Notes hereunder shall be made based on such expired
Quotation. If the Company thereafter notifies Prudential of the
Acceptance of any such Quotation, such Acceptance shall be
ineffective for all purposes of this Agreement, and Prudential
shall promptly notify the Company that the provisions of this
paragraph 2B(6) are applicable with respect to such Acceptance.
2B(7). Facility Closings. Not later than 11:30 A.M.
(New York City local time) on the Closing Day for any Accepted
Notes, the Company will deliver to each Purchaser listed in the
Confirmation of Acceptance relating thereto at the offices of the
Prudential Capital Group, 1114 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the Accepted Notes to be
purchased by such Purchaser in the form of one or more Notes in
authorized denominations as such Purchaser may request for each
Series of Accepted Notes to be purchased on the Closing Day,
dated the Closing Day and registered in such Purchaser's name (or
in the name of its nominee), against payment of the purchase
price thereof by transfer of immediately available funds for
credit to the Company's account specified in the Request for
Purchase of such Notes. If the Company fails to tender to any
Purchaser the Accepted Notes to be purchased by such Purchaser on
the scheduled Closing Day for such Accepted Notes as provided
above in this paragraph 2B(7), or any of the conditions specified
in paragraph 3 shall not have been fulfilled by the time required
on such scheduled Closing Day, the Company shall, prior to 1:00
P.M., New York City local time, on such scheduled Closing Day
notify Prudential (which notification shall be deemed received by
each Purchaser) in writing whether (i) such closing is to be
rescheduled (such rescheduled date to be a Business Day during
the Issuance Period not less than one Business Day and not more
than 10 Business Days after such scheduled Closing Day (the
"Rescheduled Closing Day")) and certify to Prudential (which
certification shall be for the benefit of each Purchaser) that
the Company reasonably believes that it will be able to comply
with the conditions set forth in paragraph 3 on such Rescheduled
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Closing Day and that the Company will pay the Delayed Delivery
Fee in accordance with paragraph 2B(8)(iii) or (ii) such closing
is to be canceled. If a Rescheduled Closing Day is established
in respect of Notes denominated in a currency other than Dollars,
the Notes shall have the same maturity date, principal prepayment
dates and amounts and interest payment dates as originally
scheduled. In the event that the Company shall fail to give such
notice referred to in the second preceding sentence, Prudential
(on behalf of each Purchaser) may at its election, at any time
after 1:00 P.M., New York City local time, on such scheduled
Closing Day, notify the Company in writing that such closing is
to be canceled. Notwithstanding anything to the contrary
appearing in this Agreement, the Company may not elect to
reschedule a closing with respect to any given Accepted Notes on
more than one occasion, unless Prudential shall have otherwise
consented in writing.
2B(8).Fees.
2B(8)(i). Structuring Fee. In consideration for the
time, effort and expense involved in the preparation, negotiation
and execution of this Agreement, at the time of the execution and
delivery of this Agreement by the Company and Prudential, the
Company will pay to Prudential in immediately available funds a
fee (herein called the "Structuring Fee") in the amount of
$50,000.
2B(8)(ii). Issuance Fee. The Company will pay to
Prudential in immediately available funds a fee (herein called
the "Issuance Fee") on each Closing Day (other than the Series A
Closing Day) in an amount equal to 0.15% of the aggregate
principal amount of Notes sold on such Closing Day.
2B(8)(iii). Delayed Delivery Fee. If the closing of
the purchase and sale of any Accepted Note is delayed for any
reason beyond the original Closing Day for such Accepted Note,
the Company shall pay the Purchaser which shall have agreed to
purchase such Accepted Note,
(a) in the case of an Accepted Note denominated in
Dollars, on the Cancellation Date or actual Closing Day of such
purchase and sale, a fee (herein called the "Dollar Delayed
Delivery Fee") equal to the product of (i) the amount determined
by Prudential to be the amount by which the bond equivalent yield
per annum of such Accepted Note exceeds the average investment
rate per annum on alternative Dollar investments of the highest
quality selected by Prudential and having a maturity date or
dates the same as, or closest to, the Rescheduled Closing Day or
Rescheduled Closing Days from time to time fixed for the delayed
delivery of such Accepted Note, (ii) the principal amount of such
Accepted Note, and (iii) a fraction the numerator of which is
equal to the number of actual days elapsed from and including the
original Closing Day for such Accepted Note to but excluding the
date of such payment, and the denominator of which is 360; or
(b) in the case of an Accepted Note denominated in a
currency other than
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Dollars, on the Cancellation Date or the actual Closing Day of
such purchase and sale, a fee (herein called the "Non-Dollar
Delayed Delivery Fee," and, together with the Dollar Delayed
Delivery Fee, the "Delayed Delivery Fee") equal to the sum of (1)
the product of (x) the amount by which the rate of interest of
such Accepted Note exceeds the Overnight Interest Rate on each
day from and including the original Closing Day for such Accepted
Note, (y) the principal amount of such Accepted Note, and (z) a
fraction the numerator of which is equal to the number of actual
days elapsed from and including the original Closing Day for such
Accepted Note to but excluding the date of such payment, and the
denominator of which is 360 and (2) the costs and expenses (if
any) incurred by such Purchaser or its affiliates with respect to
any interest rate or currency exchange agreement entered into by
the Purchaser or any such affiliate in connection with the
delayed closing of such Accepted Notes.
In no case shall the Delayed Delivery Fee be less than zero.
Nothing contained herein shall obligate any Purchaser to purchase
any Accepted Note on any day other than the Closing Day for such
Accepted Note, as the same may be rescheduled from time to time
in compliance with paragraph 2B(7). Prudential shall inform the
Company promptly upon the determination of the amount of any
Delayed Delivery Fee.
2B(8)(iv). Cancellation Fee. If the Company at any time
notifies Prudential in writing that the Company is canceling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the
circumstances set forth in the penultimate sentence of paragraph
2B(7) that the closing of the purchase and sale of such Accepted
Note is to be canceled, or if the closing of the purchase and
sale of such Accepted Note is not consummated on or prior to the
last day of the Issuance Period (the date of any such
notification, or the last day of the Issuance Period, as the case
may be, being herein called the "Cancellation Date"), the Company
shall pay the Purchaser which shall have agreed to purchase such
Accepted Note in immediately available funds on the Cancellation
Date an amount (the "Cancellation Fee") equal to
(a) in the case of an Accepted Note denominated in
Dollars, the product of (A) the principal amount of such Accepted
Note times (B) the quotient (expressed in decimals) obtained by
dividing (1) the excess of the ask price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Cancellation
Date over the bid price (as determined by Prudential) of the
Hedge Treasury Note(s) on the Acceptance Day for such Accepted
Note by (2) such bid price, with the foregoing bid and ask prices
as reported on the Bridge\Telerate Service, or if such
information ceases to be available on the Bridge\Telerate
Service, any publicly available source of such market data
selected by Prudential on a U.S. Treasury security having a par
value of $100.00 and (such amount, the "US Cancellation Fee"); or
(b) in the case of an Accepted Note denominated in a
currency other than Dollars, the aggregate of all unwinding costs
incurred by such Purchaser or its affiliates on positions
executed by or on behalf of such Purchaser or such affiliates in
connection with the proposed lending in such currency and fixing
the coupon in such currency (which costs may
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include a US Cancellation Fee), provided, however, that any gain
realized upon either unwinding interest rate hedging arrangements
or currency swaps shall be offset against any unwinding costs
incurred in either instance. Such positions include currency and
interest rate swaps, futures, forwards, any government bond
xxxxxx and currency exchange contracts which are subject to
substantial price volatility. Such costs may also include losses
incurred by such Purchaser or its affiliates as a result of
fluctuations in exchange rates. All unwinding costs incurred by
such Purchaser shall be determined by Prudential or its affiliate
in accordance with generally accepted financial practice.
In no case shall the Cancellation Fee be less than zero.
Prudential shall inform the Company promptly upon the
determination of the amount of any Cancellation Fee.
3. CONDITIONS OF CLOSING3. CONDITIONS OF CLOSING.
The obligation of each Purchaser to purchase and pay for any
Notes is subject to the satisfaction, on or before the Closing
Day for such Notes, of the following conditions:
3A. Certain DocumentsA. Certain Documents. Such
Purchaser shall have received the following, each dated the date
of the applicable Closing Day except as otherwise noted below:
(i) The Note(s) to be purchased by such Purchaser.
(ii) The Subsidiary Guaranty dated the Series A Closing
Day.
(iii)Certified copies of the resolutions of the Board
of Directors of the Company and each Guarantor authorizing
the execution and delivery of this Agreement and the
issuance of the Notes (in the case of the Company) and of
the Subsidiary Guaranty (in the case of each Guarantor), and
of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this
Agreement, the Notes and the Subsidiary Guaranty (as
applicable).
(iv) Certificates of the Secretary or an Assistant
Secretary and one other officer of each of the Company and
each Guarantor certifying the names and true signatures of
the officers of the Company authorized to sign this
Agreement and the Notes (in the case of the Company) and the
Subsidiary Guaranty (in the case of each Guarantor) and the
other documents to be delivered hereunder.
(v) Certified copies of the Certificate of
Incorporation and By-laws (or, if applicable, other
governing documents) of the Company and each Guarantor.
(vi) A favorable opinion of Xxxxx Xxxxxxx, General
Counsel of the Company (or such other counsel designated by
the Company and acceptable to the Purchaser(s)) satisfactory
to such Purchaser and substantially in the form of Exhibit
D-1 (in the case of the Series A Closing Day) or D-2 (in the
case of any Shelf Notes) attached hereto
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and as to such other matters as such Purchaser may
reasonably request. The Company hereby directs such counsel
to deliver such opinion, agree that the issuance and sale of
any Notes will constitute a reconfirmation of such
direction, and understand and agree that each Purchaser
receiving such an opinion will and is hereby authorized to
rely on such opinion.
(vii)A good standing (or equivalent) certificate for
the Company and each Guarantor from the secretary of state
of the state of its organization dated as of a recent date
and such other evidence of the status of the Company and
each Guarantor as such Purchaser may reasonably request.
(viii) Additional documents or certificates with
respect to legal matters or corporate or other proceedings
related to the transactions contemplated hereby as may be
reasonably requested by such Purchaser.
3B. Opinion of Purchaser's Special CounselB. Opinion
of Purchaser's Special Counsel. Such Purchaser shall have
received from an Assistant General Counsel of Prudential or such
other counsel who is acting as special counsel for it in
connection with this transaction, a favorable opinion
satisfactory to such Purchaser as to such matters incident to the
matters herein contemplated as it may reasonably request.
3C. Representations and Warranties; No Default3C.
Representations and Warranties; No Default. The representations
and warranties contained in paragraph 8 shall be true on and as
of such Closing Day, except to the extent of changes caused by
the transactions herein contemplated; there shall exist on such
Closing Day no Event of Default or Default; and the Company shall
have delivered to such Purchaser an Officer's Certificate, dated
such Closing Day, to both such effects.
3D. Purchase Permitted by Applicable Laws3D. Purchase
Permitted by Applicable Laws. The purchase of and payment for
the Notes to be purchased by such Purchaser on the terms and
conditions herein provided (including the use of the proceeds of
such Notes by the Company) shall not violate any applicable law
or governmental regulation (including, without limitation,
Section 5 of the Securities Act or Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and shall not
subject such Purchaser to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law or
governmental regulation, and such Purchaser shall have received
such certificates or other evidence as it may request to
establish compliance with this condition.
3E. Payment of Fees. The Company shall have paid to
Prudential any fees due it pursuant to or in connection with this
Agreement, including any Structuring Fee due pursuant to
paragraph 2B(8)(i), any Issuance Fee due pursuant to paragraph
2B(8)(ii) and any Delayed Delivery Fee due pursuant to paragraph
2B(8)(iii). The Company shall also have paid the fees and
expenses of any special counsel engaged by Prudential and the
Purchasers in connection with this Agreement; provided that the
fees of any such special counsel shall not
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exceed $5,000 through the Series A Closing Day.
4. PREPAYMENTS. PREPAYMENTS. The Series A Notes,
the Series B Notes and any Shelf Notes shall be subject to
required prepayment as and to the extent provided in paragraphs
4A and 4B, respectively. The Series A Notes, the Series B Notes
and any Shelf Notes shall also be subject to prepayment under the
circumstances set forth in paragraph 4C. Any prepayment made by
the Company pursuant to any other provision of this paragraph 4
shall not reduce or otherwise affect its obligation to make any
required prepayment as specified in paragraph 4A or 4B.
4A(1). Required Prepayments of Series A Notes. Until
the Series A Notes shall be paid in full, the Company shall apply
to the prepayment of the Series A Notes, without
Yield-Maintenance Amount, the sum of 27,483,333.34 Swiss Francs
on March 1 of 2005 and 2006, and such principal amounts of the
Series A Notes, together with interest thereon to such payment
dates, shall become due on such payment dates. The remaining
unpaid principal amount of the Series A Notes, together with
interest accrued thereon, shall become due on the maturity date
of the Series A Notes.
4A(2). Required Prepayments of Series B Notes. Until
the Series B Notes shall be paid in full, the Company shall apply
to the prepayment of the Series B Notes, without
Yield-Maintenance Amount, the sum of 28,133,333.34 Swiss Francs
on March 1 of 2005 and 2006, and such principal amounts of the
Series B Notes, together with interest thereon to such payment
dates, shall become due on such payment dates. The remaining
unpaid principal amount of the Series B Notes, together with
interest accrued thereon, shall become due on the maturity date
of the Series B Notes.
4B. Required Prepayments of Shelf NotesB. Required
Prepayments of Shelf Notes. Each Series of Shelf Notes shall be
subject to the required prepayments, if any, set forth in the
Notes of such Series.
4B(1). Optional Prepayment With Yield-Maintenance
Amount. The Notes of each Series shall be subject to prepayment,
in whole at any time or from time to time in part (in integral
multiples of $100,000 and in a minimum amount of $1,000,000 or,
in each case, in the equivalent of the currency in which the
Notes of such Series were issued), at the option of the Company,
at 100% of the principal amount so prepaid plus interest thereon
to the prepayment date and the Yield-Maintenance Amount, if any,
with respect to each such Note. Any partial prepayment of a
Series of the Notes pursuant to this paragraph 4C(1) shall be
applied in satisfaction of required payments of principal in
inverse order of their scheduled due dates.
4B(2). Prepayment with Yield-Maintenance Amount
Pursuant to Intercreditor Agreement. If amounts are to be
applied to the principal of the Notes pursuant to the terms of
the Intercreditor Agreement, interest owing thereon to the
prepayment date and the Yield-Maintenance Amount, if any, with
respect to each Note shall be due and payable on
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such date. Any partial prepayment of the Notes pursuant to this
paragraph 4C(2) shall be applied in satisfaction of required
payments of principal in inverse order of their scheduled due
dates.
4C. Notice of Optional Prepayment. The Company shall
give the holder of each Note of a Series to be prepaid pursuant
to paragraph 4C(1) irrevocable written notice of such prepayment
not less than 10 Business Days prior to the prepayment date,
specifying such prepayment date, the aggregate principal amount
of the Notes of such Series to be prepaid on such date, the
principal amount of the Notes of such Series held by such holder
to be prepaid on that date and that such prepayment is to be made
pursuant to paragraph 4C(1). Notice of prepayment having been
given as aforesaid, the principal amount of the Notes specified
in such notice, together with interest thereon to the prepayment
date and together with the Yield-Maintenance Amount, if any,
herein provided, shall become due and payable on such prepayment
date. The Company shall, on or before the day on which it gives
written notice of any prepayment pursuant to paragraph 4C(1),
give telephonic notice of the principal amount of the Notes to be
prepaid and the prepayment date to each Significant Holder which
shall have designated a recipient for such notices in the
Purchaser Schedule attached hereto or the applicable Confirmation
of Acceptance or by notice in writing to the Company.
4D. Application of Prepayment. In the case of each
prepayment of less than the entire unpaid principal amount of all
outstanding Notes of any Series pursuant to paragraphs 4A, 4B, or
4C, the amount to be prepaid shall be applied pro rata to all
outstanding Notes of such Series (including, for the purpose of
this paragraph 4E only, all Notes prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates other than by prepayment pursuant to
paragraph 4A, 4B or 4C) according to the respective unpaid
principal amounts thereof.
4[G].No Acquisition of Notes4E. Retirement of
Notes. The Company shall not, and shall not permit any of its
Subsidiaries or Affiliates to, prepay or otherwise retire in
whole or in part prior to their stated final maturity (other than
by prepayment pursuant to paragraphs 4A, 4B or 4C or upon
acceleration of such final maturity pursuant to paragraph 7A), or
purchase or otherwise acquire, directly or indirectly, Notes of
any Series held by any holder unless the Company or such
Subsidiary or Affiliate shall have offered to prepay or otherwise
retire or purchase or otherwise acquire, as the case may be, the
same proportion of the aggregate principal amount of Notes of
such Series held by each other holder of Notes of such Series at
the time outstanding upon the same terms and conditions. Any
Notes so prepaid or otherwise retired or purchased or otherwise
acquired by the Company or any of its Subsidiaries or Affiliates
shall not be deemed to be outstanding for any purpose under this
Agreement, except as provided in paragraph 4E.
5. AFFIRMATIVE COVENANTS5. AFFIRMATIVE COVENANTS.
During the Issuance Period and so long thereafter as any Note is
outstanding and unpaid, the Company covenants as follows:
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5A. Financial Statements; Notice of Defaults5A.
Financial Statements; Notice of Defaults. The Company covenants
that it will deliver to each holder of any Notes in duplicate:
(i) as soon as practicable and in any event within 60
days after the end of each quarterly period (other than the
last quarterly period) in each fiscal year, consolidated
statements of income, cash flows and shareholders' equity of
the Company and its Subsidiaries for the period from the
beginning of the current fiscal year to the end of such
quarterly period, and a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarterly
period, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal
year, all in reasonable detail and certified by an
authorized financial officer of the Company;
(ii) as soon as practicable and in any event within 90
days after the end of each fiscal year, consolidated
statements of income, cash flows and shareholders' equity of
the Company and its Subsidiaries for such year, and a
consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, setting forth in
each case in comparative form corresponding consolidated
figures from the preceding annual audit, all in reasonable
detail and satisfactory in form to the Required Holder(s)
and reported on by independent public accountants of
recognized national standing selected by the Company whose
report shall be without limitation as to scope of the audit
and satisfactory in substance to the Required Holder(s);
(iii)promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and
reports as it shall send to its public stockholders and
copies of all registration statements and all reports which
it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of
the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each
other report submitted to the Company or any Subsidiary by
independent accountants in connection with any annual,
interim or special audit made by them of the books of the
Company or any Subsidiary; and
(v) with reasonable promptness, such other financial
data as such holder may reasonably request.
Together with each delivery of financial statements required by
clauses (i) and (ii) above, the Company will deliver to each
holder of any Notes an Officer's Certificate demonstrating (with
computations in reasonable detail) compliance by the Company and
its Subsidiaries with the provisions of xxxxxxxxxx 0X(0), 0X(0),
0X(0), 6B(3) and 6B(9) and stating that there exists no Event of
Default or Default, or, if any Event of Default or Default
exists, specifying the nature and period of existence thereof and
what action the Company proposes to take with respect thereto.
Together with each delivery of financial statements required by
clause (ii) above, the
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Company will deliver to each holder of any Notes a certificate of
such accountants stating that, in making the audit necessary for
their report on such financial statements, they have obtained no
knowledge of any Event of Default or Default, or, if they have
obtained knowledge of any Event of Default or Default, specifying
the nature and period of existence thereof. Such accountants,
however, shall not be liable to anyone by reason of their failure
to obtain knowledge of any Event of Default or Default which
would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards.
The Company also covenants that immediately after any
Responsible Officer obtains knowledge of an Event of Default or
Default, it will deliver to each holder of any Notes an Officer's
Certificate specifying the nature and period of existence thereof
and what action the Company proposes to take with respect thereto.
5B. Information Required by Rule 144A5B.
Information Required by Rule 144A. The Company covenants that it
will, upon the request of the holder of any Note, provide such
holder, and any qualified institutional buyer designated by such
holder, such financial and other information as such holder may
reasonably determine to be necessary in order to permit
compliance with the information requirements of Rule 144A under
the Securities Act in connection with the resale of Notes, except
at such times as the Company is subject to and in compliance with
the reporting requirements of section 13 or 15(d) of the Exchange
Act. For the purpose of this paragraph 5B, the term "qualified
institutional buyer" shall have the meaning specified in Rule
144A under the Securities Act.
5C. Inspection of Property5C. Inspection of Property.
The Company covenants that it will permit any Person designated
by any Significant Holder in writing, at such Significant
Holder's expense if no Default or Event of Default exists and at
the Company's expense if a Default or Event of Default does
exist, to visit and inspect any of the properties of the Company
and its Subsidiaries, to examine the books and financial records
of the Company and its Subsidiaries and make copies thereof or
extracts therefrom and to discuss the affairs, finances and
accounts of any of the Company and its Subsidiaries with the
principal officers of the Company and its independent public
accountants, all at such reasonable times and as often as such
Significant Holder may reasonably request.
5D. Covenant to Secure Notes Equally5D. Covenant to
Secure Notes Equally. The Company covenants that, if it or any
Subsidiary shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired,
other than Liens permitted by the provisions of paragraph 6B(1)
(unless prior written consent to the creation or assumption
thereof shall have been obtained pursuant to paragraph 11C), it
will make or cause to be made effective provision whereby the
Notes will be secured by such Lien equally and ratably with any
and all other Debt thereby secured so long as any such other Debt
shall be so secured.
5E. Compliance with Law. The Company covenants that
it will, and will cause each of its Subsidiaries to, comply with
all laws, ordinances or governmental rules or
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regulations to which each of them is subject, including, without
limitation, environmental laws, and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such
licenses, certificates, permits, franchises and other
governmental authorizations could not reasonably be expected,
individually or in the aggregate, to have a material adverse
effect on the business, condition (financial or otherwise),
operations or prospects of the Company and its Subsidiaries taken
as a whole.
5F. Insurance. The Company covenants that it will,
and will cause each of its Subsidiaries to, maintain, with
financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such
casualties and contingencies, of such types, on such terms and in
such amounts as is customary in the case of entities of
established reputations engaged in the same or a similar business
and similarly situated.
5G. Subsequent Guarantors. The Company covenants that
if at any time any Subsidiary which is not a Guarantor on the
date hereof, shall guarantee one or both of the Bank Agreements,
the Company will cause such Person to, simultaneously with the
entry into the guarantee of such Bank Agreement, execute and
deliver to Prudential and the holders of the Notes a joinder to
the Subsidiary Guaranty in the form attached thereto.
5H. Intercreditor Agreement. The Company covenants
that on or before September 30, 2001, each lender party to one or
both of the Bank Agreements shall enter into an intercreditor
agreement (the "Intercreditor Agreement") with Prudential and
each holder of Notes which shall include the terms referenced on
the summary of intercreditor terms attached hereto as Exhibit E
and shall be in form and content satisfactory to Prudential.
5I. Maintenance of Existence. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force
and effect its corporate existence, material rights, licenses,
permits and franchises; provided that nothing in this paragraph
shall prevent the abandonment or termination of the corporate
existence of any Subsidiary, or the rights or franchises of any
Subsidiary or the Company if such abandonment or termination
would not have a material adverse effect upon the business,
condition (financial or otherwise) operations or prospects of the
Company and its Subsidiaries taken as a whole.
5J. Maintenance of Property. The Company covenants
that it will, and will cause each of its Subsidiaries to, at all
times maintain and preserve all property used or useful in its
business in good working order and condition, and from time to
time make, or cause to be made, all needful and proper repairs,
renewals and replacements thereto, so that the business carried
on in connection therewith may be properly conducted at all
times, except to the extent that the failure to do so would not
have a material adverse effect upon the
82
business, condition (financial or otherwise), operations or
prospects of the Company and its Subsidiaries taken as a whole.
5K. Payment of Taxes. The Company covenants that it
will, and will cause each of its Subsidiaries to, pay and
discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits
or in respect of its property, prior to the time penalties would
attach thereto, as well as lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or
charge upon such properties or any part thereof; provided,
however, that neither the Company nor any Subsidiary shall be
required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be subject to a Good
Faith Contest.
6. NEGATIVE COVENANTS6.NEGATIVE COVENANTS. During
the Issuance Period and so long thereafter as any Note or other
amount due hereunder is outstanding and unpaid, the Company
covenants as follows:
6A. Financial Covenants. The Company will not permit:
6A(1). Consolidated Net Worth. Consolidated Net
Worth at any time to be less than the sum of (a) $450,000,000
plus (b) to the extent positive, 25% of Consolidated Net Income
for each fiscal quarter ended subsequent to December 31, 2000 and
prior to any date of determination;
6A(2). Interest Coverage Ratio. The ratio of
Consolidated EBITDA to Consolidated Interest Expense to be less
than 3.50 to 1.00 for the four consecutive fiscal quarter period
ended at the end of any fiscal quarter, commencing with the four
consecutive fiscal quarter period ended December 31, 2000; or
6A(3). Debt and Priority Debt Limitations. (i) The
ratio, expressed as a percentage, of Consolidated Debt to
Consolidated Capitalization to (a) exceed 55% at any time during
the period commencing on the Series A Closing Day and ending on
the first anniversary thereof or (b) 50% at any time thereafter
or (ii) the aggregate amount of Priority Debt to at any time
exceed 15% of Consolidated Net Worth.
6B. Lien and Other Restrictions. The Company will not
and will not permit any Subsidiary to:
6B(1). Liens. Create, assume or suffer to exist any
Lien upon any of its properties or assets, whether now owned or
hereafter acquired (whether or not provision is made for the
equal and ratable securing of the Notes in accordance with the
provisions of paragraph 5D), except:
83
(i) Liens for taxes, assessments or other governmental
levies or charges not yet due or which are subject to a Good
Faith Contest,
(ii) statutory Liens of landlords, Liens of carriers,
warehousemen, mechanics and materialmen, and Liens of a
similar nature, in each case that do not secure Debt, are
incurred in the ordinary course of business and are for sums
not yet due or subject to a Good Faith Contest,
(iii)Liens on property or assets of a Subsidiary of the
Company to secure obligations of such Subsidiary to the
Company or to a Wholly-Owned Subsidiary,
(iv) Liens (other than any Lien imposed by ERISA)
incurred, or deposits made, in the ordinary course of
business, such as workers' compensation Liens or statutory
or legal obligation Liens; provided, however, that such
Liens were not incurred or made in connection with the
borrowing of money or the obtaining of advances or credit,
(v) survey exceptions and easements and reservations
arising in the ordinary course of business that do not
secure Debt, which do not in aggregate materially detract
from the use or value of the property subject thereto,
(vi) Liens existing on the date of this Agreement and
securing Debt of the Company and its Subsidiaries, in each
case as identified on Schedule 6B(1) hereto,
(vii)any Lien created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay
all or any part of the purchase price or cost of
construction, of property (or any improvement thereon)
acquired or constructed by the Company or a Subsidiary after
the date of this Agreement, provided that
(a) any such Lien shall extend solely to the item
or items of such property (or improvement thereon) so
acquired or constructed,
(b) the principal amount of the Debt secured by
any such Lien shall at no time exceed the cost to the
Company or such Subsidiary of the property (or improvement
thereon) so acquired or constructed,
(c) any such Lien shall be created
contemporaneously with, or within 90 days after, the
acquisition or construction of such property, and
(d) no such Lien shall attach to any property the
purchase of which was made with the net sale proceeds of any
assets described in the proviso to paragraph 6B(3)(ii)
hereof,
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(viii) any Lien existing on property of a Person
immediately prior to its being consolidated with or merged
into the Company or a Subsidiary or its becoming a
Subsidiary, or any Lien existing on any property acquired by
the Company or any Subsidiary at the time such property is
so acquired (whether or not the Debt secured thereby shall
have been assumed), provided that (a) no such Lien shall
have been created or assumed in contemplation of such
consolidation or merger or such Person's becoming a
Subsidiary or such acquisition or property, and (b) each
such Lien shall extend solely to the item or items of
property so acquired, and
(ix) any Lien renewing, extending or refunding any Lien
permitted by clauses (vi), (vii) or (viii) of this
paragraph, provided that (a) the principal amount of Debt
secured by such Lien immediately prior to such extension,
renewal or refunding is not increased or the maturity or
remaining average life thereof reduced and (b) such Lien is
not extended to any other property,
(x) other Liens securing Debt of the Company or a
Subsidiary, provided that the aggregate principal amount of
Priority Debt shall at no time exceed 15% of Consolidated
Net Worth;
6B(2). Merger and Consolidation. Merge or
consolidate with or into any other Person, except that, so long
as no Event of Default exists or would result therefrom:
(i) any Subsidiary may merge or consolidate with
or into the Company, so long as the Company is the
continuing or surviving corporation,
(ii) any Subsidiary may merge or consolidate with
or into another Subsidiary, so long as the surviving Person
is a Wholly-Owned Subsidiary, and
(iii)the Company may merge with any other solvent
corporation, so long as the Company is the continuing or
surviving corporation;
6B(3). Transfer of Assets. Transfer any of its
assets (exclusive of sales of inventory in the ordinary course of
business), except that:
(i) any Subsidiary may Transfer assets to the
Company or to a Wholly-Owned Subsidiary (so long as any such
Transfer to a Wholly-Owned Subsidiary does not result in the
movement of assets from a Designated Country to a country
which is not a Designated Country), and
(ii) the Company or any Subsidiary may otherwise
Transfer assets, so long as after giving effect thereto
neither (a) the Annual Percentage of Earnings Capacity
Transferred pursuant to this clause (ii) and paragraph 6B(4)
exceeds 15%, nor (b) the Annual Percentage of Assets
Transferred pursuant to this clause (ii) and
85
paragraph 6B(4) exceeds 15%; provided that if the net sale
proceeds of any assets Transferred are, within 180 days
after the date of Transfer, (1) applied to the prepayment of
senior Debt of the Company (including the Notes pursuant to
the terms of paragraph 4C hereof) on a pro rata basis or (2)
used for the purchase of similar assets (located in a
Designated Country if and to the extent the assets
Transferred were located in a Designated Country), then
such Transfer shall not be included in the calculations
provided in this clause (ii);
6B(4). Sale of Stock and Debt of Subsidiaries. With
the exception of the InfoSoft Sale, sell or otherwise dispose of,
or part with control of, any shares of stock (or similar equity
interests) or Debt of any Subsidiary, except to the Company or a
Wholly-Owned Subsidiary, and except that all shares of stock (or
similar equity interests) and Debt of any Subsidiary at the time
owned by or owed to the Company and all Subsidiaries may be sold
as an entirety for a cash consideration which represents the fair
value (as determined in good faith by the Board of Directors of
the Company) at the time of sale of the shares of stock (or
similar equity interests) and Debt so sold; provided that (i)
such sale or other disposition is treated as a Transfer of assets
of such Subsidiary and is permitted by paragraph 6B(3) and (ii)
at the time of such sale, such Subsidiary shall not own, directly
or indirectly, any shares of stock or Debt of any other
Subsidiary, unless all of the shares of stock and Debt of such
other Subsidiary owned, directly or indirectly, by the Company
and all Subsidiaries are simultaneously being sold as permitted
by this paragraph 6B(4);
6B(5). Sale or Discount of Receivables. Sell with
recourse, or discount or otherwise sell for less than the face
value thereof, any of its notes or accounts receivable, other
than (i) notes or accounts receivable the collection of which is
doubtful in accordance with generally accepted accounting
principles and (ii) pursuant to the Brazilian Receivables Program;
6B(6). Related Party Transactions. Directly or
indirectly, receive any Transfer of any property from, or
Transfer any property to, or otherwise deal with, in the ordinary
course of business or otherwise, any Related Party, unless each
such transaction is no less favorable to the Company or such
Subsidiary (as the case may be) than a transaction with an
unrelated party on an arm's length basis;
6B(7). Subsidiary Dividend Restrictions. Incur or
permit to exist any restriction (other than restrictions imposed
pursuant to any applicable law) on any Subsidiary's ability to
make dividends or other distributions to the Company or any other
Subsidiary, to repay intra-company Debt or to otherwise transfer
earnings or assets to the Company or its Subsidiaries;
6B(8). Sale-and-Leasebacks. Enter into any
transaction, directly or indirectly, whereby it shall sell or
transfer any property, if at the time of such sale or disposition
the Company or any Subsidiary intends to lease or otherwise
acquire the right to use or possess
86
(except by purchase) such property or like property for a
substantially similar purpose (a "Sale and Leaseback
Transaction") except:
(i) any Sale and Leaseback Transaction in which
the property is sold by the Company to a Subsidiary or by a
Subsidiary to the Company or another Subsidiary, or
(ii) the Company or any Subsidiary may enter into
any Sale and Leaseback Transaction if (a) at the time
thereof and immediately after giving effect thereto no
Default or Event of Default shall exist (including any Event
of Default under paragraph 6A(3)(ii)) and the proceeds from
the sale of the subject property shall be equal to not less
than 80% of its fair market value (as reasonably determined
by the Company's Board of Directors); or
6B(9). Line of Business. Engage in any business
activities other than those related or incidental to its present
business activities, namely, the manufacture and distribution of
(i) dental supplies and equipment, (ii) medical/industrial
supplies and equipment and (iii) other healthcare products;
provided that (x) the business activities described in clause
(iii) shall not represent more than 20% of Consolidated Net
Income for any fiscal year, commencing with the fiscal year ended
December 31, 2000 and (y) the assets of the business activities
described in clause (iii) shall not at any time represent more
than 20% of the consolidated assets of the Company and the
Subsidiaries.
7. EVENTS OF DEFAULT7. EVENTS OF DEFAULT.
0X. Xxxxxxxxxxxx0X.Xxxxxxxxxxxx. If any of the
following events shall occur and be continuing for any reason
whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any
principal of, or Yield- Maintenance Amount payable with
respect to, any Note when the same shall become due, either
by the terms thereof or otherwise as herein provided; or
(ii) the Company defaults in the payment of any
interest on any Note for more than five days after the date
due; or
(iii) the Company or any Subsidiary defaults (whether
as primary obligor or as guarantor or other surety) in any
payment of principal of or interest on any other obligation
for money borrowed (or any Capitalized Lease Obligation, any
obligation under a conditional sale or other title retention
agreement, any obligation issued or assumed as full or
partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of
credit) beyond any period of grace provided with respect
thereto, or the
87
Company or any Subsidiary fails to perform or observe any
other agreement, term or condition contained in any
agreement under which any such obligation is created (or if
any other event thereunder or under any such agreement shall
occur and be continuing) and the effect of such failure or
other event is to cause, or to permit the holder or holders
of such obligation (or a trustee on behalf of such holder or
holders) to cause, such obligation to become due (or to be
repurchased by the Company or any Subsidiary) prior to any
stated maturity, provided that the aggregate amount of all
obligations as to which such a payment default shall occur
and be continuing or such a failure or other event causing
or permitting acceleration (or resale to the Company or any
Subsidiary) shall occur and be continuing exceeds
$10,000,000; or
(iv) any representation or warranty made by the
Company herein or by the Company or any of its officers in
any writing furnished in connection with or pursuant to this
Agreement shall be false in any material respect on the date
as of which made; or
(v) the Company fails to perform or observe any
agreement contained in paragraph 5H or 6; or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such
failure shall not be remedied within 30 days after any
Responsible Officer obtains actual knowledge thereof; or
(vii)the Company or any Material Subsidiary makes an
assignment for the benefit of creditors or is generally not
paying its debts as such debts become due; or
(viii) any decree or order for relief in respect of
the Company or any Material Subsidiary is entered under any
bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution or liquidation
or similar law, whether now or hereafter in effect (herein
called the "Bankruptcy Law"), of any jurisdiction; or
(ix) the Company or any Material Subsidiary petitions
or applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or similar official of the
Company or any Material Subsidiary, or of any substantial
part of the assets of the Company or any Material
Subsidiary, or commences a voluntary case under the
Bankruptcy Law of the United States or any proceedings
(other than proceedings for the voluntary liquidation and
dissolution of a Material Subsidiary) relating to the
Company or any Material Subsidiary under the Bankruptcy Law
of any other jurisdiction; or
(x) any such petition or application is filed, or any
such proceedings are commenced, against the Company or any
Material Subsidiary and the Company or such Material
Subsidiary by any act indicates its approval thereof,
consent thereto or
88
acquiescence therein, or an order, judgment or decree is
entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in
any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than 30 days; or
(xi) any order, judgment or decree is entered in any
proceedings against the Company or any Material Subsidiary
decreeing the dissolution of the Company or any Material
Subsidiary and such order, judgment or decree remains
unstayed and in effect for more than 60 days: or
(xii) any order, judgment or decree is entered in any
proceedings against the Company or any Material Subsidiary
decreeing a split-up of the Company or such Material
Subsidiary which requires the divestiture of assets
representing a substantial part of the consolidated assets
of the Company and its Subsidiaries or which requires the
divestiture of assets which shall have contributed a
substantial part of Consolidated Net Income for any of the
three fiscal years then most recently ended, and such order,
judgment or decree remains unstayed and in effect for more
than 60 days; or
(xiii) one or more final judgments in an aggregate
amount in excess of $10,000,000 is rendered against the
Company or any Subsidiary and, within 60 days after entry
thereof, any such judgment is not discharged or execution
thereof stayed pending appeal, or within 60 days after the
expiration of any such stay, such judgment is not
discharged; or
(xiv)any Guarantor defaults under the Subsidiary
Guaranty or contests or denies the enforceability of, or
asserts it has no obligation under, the Subsidiary Guaranty,
or the Subsidiary Guaranty is determined to be void or
unenforceable as to any Guarantor; or
(xv) (A) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or
part thereof or a waiver of such standards or extension of
any amortization period is sought or granted under Section
412 of the Code, (B) a notice of intent to terminate any
Plan shall have been or is reasonably expected to be filed
with the PGBC or the PBGC shall have instituted proceedings
under ERISA Section 4042 to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a
subject of such proceedings, (C) the aggregate "amount of
unfunded benefit liabilities" (within the meaning of Section
4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed $10,000,000,
(D) the Company or any ERISA Affiliate shall have incurred
or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans,
(E) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (F) the Company or any
89
Subsidiary establishes or amends any employee welfare
benefit plan that provides post-employment welfare benefits
in a manner that would materially increase the liability of
the Company or any Subsidiary thereunder; and any such event
or events described in clauses (A) through (F) above, either
individually or together with any other such event or
events, could reasonably be expected to have a material
adverse effect on the business, condition (financial or
otherwise), operations or prospects of the Company and its
Subsidiaries taken as a whole;
then (a) if such event is an Event of Default specified in clause
(i) or (ii) of this paragraph 7A, any holder of any Note may at
its option during the continuance of such Event of Default, by
notice in writing to the Company, declare all of the Notes held
by such holder to be, and all of the Notes held by such holder
shall thereupon be and become, immediately due and payable at par
together with interest accrued thereon, without presentment,
demand, protest or notice of any kind, all of which are hereby
waived by the Company, (b) if such event is an Event of Default
specified in clause (viii), (ix) or (x) of this paragraph 7A with
respect to the Company, all of the Notes at the time outstanding
shall automatically become immediately due and payable together
with interest accrued thereon and together with the
Yield-Maintenance Amount, if any, with respect to each Note,
without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Company, and (c) with respect
to any event constituting an Event of Default, the Required
Holder(s) of the Notes of any Series may at its or their option
during the continuance of such Event of Default, by notice in
writing to the Company, declare all of the Notes of such Series
to be, and all of the Notes of such Series shall thereupon be and
become, immediately due and payable together with interest
accrued thereon and together with the Yield-Maintenance Amount,
if any, with respect to each Note of such Series, without
presentment, demand, protest or notice of any kind, all of which
are hereby waived by the Company.
7B. Rescission of Acceleration7B. Rescission of
Acceleration. At any time after any or all of the Notes of any
Series shall have been declared immediately due and payable
pursuant to paragraph 7A, the Required Holder(s) of the Notes of
such Series may, by notice in writing to the Company, rescind and
annul such declaration and its consequences if (i) the Company
shall have paid all overdue interest on the Notes of such Series,
the principal of and Yield-Maintenance Amount, if any, payable
with respect to any Notes of such Series which have become due
otherwise than by reason of such declaration, and interest on
such overdue interest and overdue principal and Yield-Maintenance
Amount at the rate specified in the Notes of such Series, (ii)
the Company shall not have paid any amounts which have become due
solely by reason of such declaration, (iii) all Events of Default
and Defaults, other than non-payment of amounts which have become
due solely by reason of such declaration, shall have been cured
or waived pursuant to paragraph 11C, and (iv) no judgment or
decree shall have been entered for the payment of any amounts due
pursuant to the Notes of such Series or this Agreement. No such
rescission or annulment shall extend to or affect any subsequent
Event of Default or Default or impair any right arising therefrom.
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7C. Notice of Acceleration or Rescission7C. Notice of
Acceleration or Rescission. Whenever any Note shall be declared
immediately due and payable pursuant to paragraph 7A or any such
declaration shall be rescinded and annulled pursuant to paragraph
7B, the Company shall forthwith give written notice thereof to
the holder of each Note of each Series at the time outstanding.
7D. Other Remedies7D. Other Remedies. If any Event
of Default or Default shall occur and be continuing, the holder
of any Note may proceed to protect and enforce its rights under
this Agreement and such Note by exercising such remedies as are
available to such holder in respect thereof under applicable law,
either by suit in equity or by action at law, or both, whether
for specific performance of any covenant or other agreement
contained in this Agreement or in aid of the exercise of any
power granted in this Agreement. No remedy conferred in this
Agreement upon the holder of any Note is intended to be exclusive
of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at law or in equity
or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES8.
REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows:
8A. Organization8A.Organization. The Company is a
corporation duly organized and existing in good standing under
the laws of the State of Delaware, each Subsidiary is duly
organized and existing in good standing under the laws of the
jurisdiction in which it is incorporated, and the Company has and
each Subsidiary has the corporate power to own its respective
property and to carry on its respective business as now being
conducted.
8B. Financial Statements8B. Financial Statements.
The Company has furnished each Purchaser of Series A Notes,
Series B Notes and any Accepted Notes with the following
financial statements, identified by a principal financial officer
of the Company: (i) a consolidated balance sheets of the Company
and its Subsidiaries as at December 31 in each of the three
fiscal years of the Company most recently completed prior to the
date as of which this representation is made or repeated to such
Purchaser (other than fiscal years completed within 90 days prior
to such date for which audited financial statements have not been
released) and consolidated statements of income, cash flows and
shareholders' equity of the Company and its Subsidiaries for each
such year, all reported on by KPMG Peat Marwick LLP and (ii) a
consolidated balance sheet of the Company and its Subsidiaries as
at the end of the quarterly period (if any) most recently
completed prior to such date and after the end of such fiscal
year (other than quarterly periods completed within 60 days prior
to such date for which financial statements have not been
released) and the comparable quarterly period in the preceding
fiscal year and consolidated statements of income, cash flows and
shareholders' equity for the periods from the beginning of the
fiscal years in which such quarterly periods are included to the
end of such quarterly periods, prepared by the Company. Such
financial statements (including any related schedules and/or
notes) are true and correct in all material respects (subject, as
to interim statements, to changes resulting from audits and
year-end adjustments),
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have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the
periods involved and show all liabilities, direct and contingent,
of the Company and its Subsidiaries required to be shown in
accordance with such principles. The balance sheets fairly
present the condition of the Company and its Subsidiaries as at
the dates thereof, and the statements of income, stockholders'
equity and cash flows fairly present the results of the
operations of the Company and its Subsidiaries and their cash
flows for the periods indicated. There has been no material
adverse change in the business, property or assets, condition
(financial or otherwise), operations or prospects of the Company
and its Subsidiaries taken as a whole since the end of the most
recent fiscal year for which such audited financial statements
have been furnished.
8C. Actions Pending8C. Actions Pending. There is no
action, suit, investigation or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any
of its Subsidiaries, or any properties or rights of the Company
or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which could reasonably be
expected to result in any material adverse change in the
business, property or assets, condition (financial or otherwise)
or operations of the Company and its Subsidiaries taken as a
whole.
8D. Outstanding Debt8D. Outstanding Debt. Neither
the Company nor any of its Subsidiaries has outstanding any Debt
or Priority Debt except as permitted by paragraph 6A(3). There
exists no default under the provisions of any instrument
evidencing such Debt or of any agreement relating thereto.
8E. Title to Properties8E. Title to Properties.
The Company has and each of its Subsidiaries has good and
indefeasible title to its respective real properties (other than
properties which it leases) and good title to all of its other
respective properties and assets, including the properties and
assets reflected in the most recent audited balance sheet
referred to in paragraph 8B (other than properties and assets
disposed of in the ordinary course of business), subject to no
Lien of any kind except Liens permitted by paragraph 6B(1). All
leases necessary in any material respect for the conduct of the
respective businesses of the Company and its Subsidiaries are
valid and subsisting and are in full force and effect.
8F. Taxes8F. Taxes. The Company has and each of its
Subsidiaries has filed all foreign, federal, state and other
income tax returns which, to the best knowledge of the officers
of the Company and its Subsidiaries, are required to be filed,
and each has paid all taxes as shown on such returns and on all
assessments received by it to the extent that such taxes have
become due, except such taxes as are being contested in good
faith by appropriate proceedings for which adequate reserves have
been established in accordance with generally accepted accounting
principles.
8G. Conflicting Agreements and Other Matters8G.
Conflicting Agreements and Other Matters. Neither the Company
nor any of its Subsidiaries is a party to any contract or
agreement or subject to any charter or other corporate
restriction which materially and adversely affects its business,
property or assets,
92
condition (financial or otherwise) or operations. Neither the
execution nor delivery of this Agreement, the Subsidiary Guaranty
or the Notes, nor the offering, issuance and sale of the Notes,
nor fulfillment of nor compliance with the terms and provisions
hereof, the Subsidiary Guaranty or the Notes will conflict with,
or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in any violation of, or
result in the creation of any Lien upon any of the properties or
assets of the Company or any of its Subsidiaries pursuant to, the
charter or by-laws (or comparable governing documents) of the
Company or any of its Subsidiaries, any award of any arbitrator
or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company or any of its Subsidiaries is
subject. Neither the Company nor any of its Subsidiaries is a
party to, or otherwise subject to any provision contained in, any
instrument evidencing Debt of the Company or such Subsidiary, any
agreement relating thereto or any other contract or agreement
(including its charter or comparable governing documents) which
limits the amount of, or otherwise imposes restrictions on the
incurring of, Debt of the Company of the type to be evidenced by
the Notes except as set forth in the agreements listed in
Schedule 8G attached hereto (as such Schedule 8G may have been
modified from time to time by written supplements thereto
delivered by the Company to Prudential).
8H. Offering of Notes8H.Offering of Notes. Neither
the Company nor any agent acting on its behalf has, directly or
indirectly, offered the Notes or any similar security of the
Company for sale to, or solicited any offers to buy the Notes or
any similar security of the Company from, or otherwise approached
or negotiated with respect thereto with, any Person other than
institutional investors, and neither the Company nor any agent
acting on its behalf has taken or will take any action which
would subject the issuance or sale of the Notes to the provisions
of Section 5 of the Securities Act or to the provisions of any
securities or Blue Sky law of any applicable jurisdiction.
8I. Use of Proceeds8I. Use of Proceeds. The
proceeds of the Series A Notes and Series B Notes will be used to
fund non-hostile acquisitions and for general corporate
purposes. None of the proceeds of the sale of any Notes will be
used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any "margin
stock" as defined in Regulation U (12 CFR Part 221) of the Board
of Governors of the Federal Reserve System (herein called "margin
stock") or for the purpose of maintaining, reducing or retiring
any indebtedness which was originally incurred to purchase or
carry any stock that is then currently a margin stock or for any
other purpose which might constitute the purchase of such Notes a
"purpose credit" within the meaning of such Regulation U, unless
the Company shall have delivered to the Purchaser which is
purchasing such Notes, on the Closing Day for such Notes, an
opinion of counsel satisfactory to such Purchaser stating that
the purchase of such Notes does not constitute a violation of
such Regulation U. Neither the Company nor any agent acting on
its behalf has taken or will take any action which might cause
this Agreement or the Notes to violate Regulation U, Regulation T
or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Exchange Act, in each case as in
effect now or as the same may hereafter be in effect.
93
8J. ERISA8J. ERISA. No accumulated funding
deficiency (as defined in section 302 of ERISA and section 412 of
the Code), whether or not waived, exists with respect to any Plan
(other than a Multiemployer Plan). No liability to the PBGC has
been or is expected by the Company or any ERISA Affiliate to be
incurred with respect to any Plan (other than a Multiemployer
Plan) by the Company, any Subsidiary or any ERISA Affiliate which
is or would be materially adverse to the business, property or
assets, condition (financial or otherwise) or operations of the
Company and its Subsidiaries taken as a whole. Neither the
Company, any Subsidiary nor any ERISA Affiliate has incurred or
presently expects to incur any withdrawal liability under Title
IV of ERISA with respect to any Multiemployer Plan which is or
would be materially adverse to the business, property or assets,
condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole. The execution and
delivery of this Agreement and the issuance and sale of the Notes
will be exempt from or will not involve any transaction which is
subject to the prohibitions of section 406 of ERISA and will not
involve any transaction in connection with which a penalty could
be imposed under section 502(i) of ERISA or a tax could be
imposed pursuant to section 4975 of the Code. The representation
by the Company in the next preceding sentence is made in reliance
upon and subject to the accuracy of the representation of each
Purchaser in paragraph 9B as to the source of funds to be used by
it to purchase any Notes.
8K. Governmental Consent8K. Governmental Consent.
Neither the nature of the Company or of any Subsidiary, nor any
of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other
Person, nor any circumstance in connection with the offering,
issuance, sale or delivery of the Notes or execution and delivery
of the Subsidiary Guaranty is such as to require any
authorization, consent, approval, exemption or any action by or
notice to or filing with any court or administrative or
governmental body (other than routine filings after the Closing
Day for any Notes with the Securities and Exchange Commission
and/or state Blue Sky authorities) in connection with the
execution and delivery of this Agreement or the Subsidiary
Guaranty, the offering, issuance, sale or delivery of the Notes
or fulfillment of or compliance with the terms and provisions
hereof or of the Notes or of the Subsidiary Guaranty.
8L. Environmental Compliance8L. Environmental
Compliance. The Company and its Subsidiaries and all of their
respective properties and facilities have complied at all times
and in all respects with all foreign, federal, state, local and
regional statutes, laws, ordinances and judicial or
administrative orders, judgments, rulings and regulations
relating to protection of the environment except, in any such
case, where failure to comply would not result in a material
adverse effect on the business, condition (financial or
otherwise) or operations of the Company and its Subsidiaries
taken as a whole.
8M. Disclosure8M. Disclosure. Neither this Agreement
nor any other document, certificate or statement furnished to any
Purchaser by or on behalf of the Company in connection herewith
contains any untrue statement of a material fact or omits to
state a material fact
94
necessary in order to make the statements contained herein and
therein not misleading. There is no fact peculiar to the Company
or any of its Subsidiaries which materially adversely affects or
in the future may (so far as the Company can now foresee)
materially adversely affect the business, property or assets,
condition (financial or otherwise) or operations of the Company
or any of its Subsidiaries and which has not been set forth in
this Agreement. The financial projections delivered to
Prudential by the Company are reasonable based upon the
assumptions contained therein and the best information available
to the Company.
8N. Hostile Tender OffersN. Hostile Tender Offers.
None of the proceeds of the sale of any Notes will be used to
finance a Hostile Tender Offer.
9. REPRESENTATIONS OF THE PURCHASERS9.
REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of PurchaseA.Nature of Purchase. Such
Purchaser is not acquiring the Notes purchased by it hereunder
with a view to or for sale in connection with any distribution
thereof within the meaning of the Securities Act, provided that
the disposition of such Purchaser's property shall at all times
be and remain within its control.
9B. Source of FundsB. Source of Funds. No part of
the funds used by such Purchaser to pay the purchase price of the
Notes purchased by such Purchaser hereunder constitutes assets
allocated to any separate account maintained by such Purchaser in
which any employee benefit plan, other than employee benefit
plans identified on a list which has been furnished by such
Purchaser to the Company, participates to the extent of 10% or
more. For the purpose of this paragraph 9B, the terms "separate
account" and "employee benefit plan" shall have the respective
meanings specified in section 3 of ERISA.
10. DEFINITIONS; ACCOUNTING 10. DEFINITIONS;
ACCOUNTING MATTERS. For the purpose of this Agreement, the terms
defined in paragraphs 10A and 10B (or within the text of any
other paragraph) shall have the respective meanings specified
therein and all accounting matters shall be subject to
determination as provided in paragraph 10C.
10A. Yield-Maintenance Terms10A. Yield-Maintenance
Terms.
"Called Principal" shall mean, with respect to any
Note, the principal of such Note that is to be prepaid pursuant
to paragraph 4C or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
"Discounted Value" shall mean, with respect to the
Called Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a
95
discount factor (as converted to reflect the periodic basis on
which interest on such Note is payable, if payable other than on
a semi-annual basis) equal to the Reinvestment Yield with respect
to such Called Principal.
"Implied Dollar Yield" shall mean, with respect to the
Called Principal of any Note, the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City local
time) on the Business Day next preceding the Settlement Date with
respect to such Called Principal, on the display designated as
"Page 678" on the Bridge\Telerate Service (or such other display
as may replace page 678 on the Bridge\Telerate Service) for
actively traded U.S. Treasury securities having a maturity equal
to the Remaining Average Life of such Called Principal as of such
Settlement Date, or if such yields shall not be reported as of
such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury Constant Maturity Series yields
reported, for the latest day for which such yields shall have
been so reported as of the Business Day next preceding the
Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement
Date. Such implied yield shall be determined, if necessary, by
(a) converting U.S. Treasury xxxx quotations to bond-equivalent
yields in accordance with accepted financial practice and (b)
interpolating linearly between (1) the actively traded U.S.
Treasury security with the maturity closest to and greater than
the Remaining Average Life of such Called Principal and (2) the
actively traded U.S. Treasury security with the maturity closest
to and less than the Remaining Average Life of such Called
Principal.
"Implied Euro Yield" shall mean, with respect to the
Called Principal of any Note, the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York time) on the
second Business Day preceding the Settlement Date with respect to
such Called Principal, on the display designated as "Page
0#DEBMK" on the Reuters Screen (or such other display as may
replace "Page 0#DEBMK" on the Reuters Screen) for the benchmark
German Bund having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (ii) if
such rate is not reported as of such time or the rate reported is
not ascertainable, the average of the rates as determined by
Recognized DM Market Makers. Such implied yield will be
determined, if necessary, by (a) converting quotations to
bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the benchmark
German Bund with the maturity closest to and greater than the
Remaining Average Life of such Called Principal and (2) the
benchmark German Bund with the maturity closest to and less than
the Remaining Average Life of such Called Principal.
"Implied Swiss Franc Yield" shall mean, with respect to
the Called Principal of any Note, the yield to maturity implied
by (i) the yields reported, as of 10:00 A.M. (New York time) on
the second Business Day preceding the Settlement Date with
respect to such Called Principal, on the display designated "Page
0#CHBMK" on the Reuters Screen (or such other display as may
replace "Page 0#CHBMK" on the Reuters Screen) for the benchmark
96
Swiss Government Bond having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date,
or (ii) if such rate is not reported as of such time or the rate
reported is not ascertainable, the average of the rates as
determined by Recognized Swiss Government Bond Market Makers.
Such implied yield will be determined, if necessary, by (a)
converting quotations to bond-equivalent yields in accordance
with accepted financial practice and (b) interpolating linearly
between (1) the actively traded benchmark Swiss Government Bond
with the maturity closest to and greater than the Remaining
Average Life of such Called Principal and (2) the actively traded
benchmark Swiss Government Bond with the maturity closest to and
less than the Remaining Average Life of such Called Principal.
"Reinvestment Yield" shall mean, with respect to the
Called Principal of (i) any Note denominated in Dollars, 50 basis
points plus the Implied Dollar Yield (ii) in the case of any Note
denominated in Swiss Francs, the Implied Swiss Franc Yield, (iii)
in the case of any Note denominated in Euros, the Implied Euro
Yield. The Reinvestment Yield will be rounded to that number of
decimals as appears in the coupon for the applicable Note.
"Remaining Average Life" shall mean, with respect to
the Called Principal of any Note, the number of years (calculated
to the nearest one-twelfth year) obtained by dividing (i) such
Called Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" shall mean, with respect
to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due on or after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled
due date.
"Settlement Date" shall mean, with respect to the
Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to paragraph 4C or is
declared to be immediately due and payable pursuant to paragraph
7A, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to
any Note, an amount equal to the excess, if any, of the
Discounted Value of the Called Principal of such Note over the
sum of (i) such Called Principal plus (ii) interest accrued
thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance
Amount shall in no event be less than zero.
10B. Other TermsB. Other Terms.
"Acceptance" shall have the meaning specified in
paragraph 2B(5).
97
"Acceptance Day" shall have the meaning specified in
paragraph 2B(5).
"Accepted Note" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Window" shall mean, with respect to any
Quotation, the time period designated by Prudential during which
the Company and Prudential shall be in live communication and the
Company may elect to accept such Quotation.
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such first
Person except, in the case of the Company, a Subsidiary. A
Person shall be deemed to control another Person if such first
Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Annual Percentage of Assets Transferred" shall mean,
with respect to any fiscal year of the Company, the sum of the
Percentages of Assets Transferred for each asset of the Company
and its Subsidiaries that is Transferred during such fiscal year.
"Annual Percentage of Earnings Capacity Transferred"
shall mean, with respect to any fiscal year of the Company, the
sum of the Percentages of Earnings Capacity Transferred for each
asset of the Company and its Subsidiaries that is Transferred
during such fiscal year.
"Authorized Officer" shall mean (i) in the case of the
Company, its chief executive officer, its chief financial
officer, any vice president of the Company designated as an
"Authorized Officer" of the Company in the Information Schedule
attached hereto or any vice president of the Company designated
as an "Authorized Officer" of the Company for the purpose of this
Agreement in an Officer's Certificate executed by the Company's
chief executive officer or chief financial officer and delivered
to Prudential, and (ii) in the case of Prudential, any officer of
Prudential designated as its "Authorized Officer" in the
Information Schedule or any officer of Prudential designated as
its "Authorized Officer" for the purpose of this Agreement in a
certificate executed by one of its Authorized Officers. Any
action taken under this Agreement on behalf of the Company by any
individual who on or after the date of this Agreement shall have
been an Authorized Officer of the Company and whom Prudential in
good faith believes to be an Authorized Officer of the Company at
the time of such action shall be binding on the Company even
though such individual shall have ceased to be an Authorized
Officer of the Company, and any action taken under this Agreement
on behalf of Prudential by any individual who on or after the
date of this Agreement shall have been an Authorized Officer of
Prudential and whom the Company in good faith believes to be an
Authorized Officer of Prudential at the time of such action shall
be binding on Prudential even though such individual shall have
ceased to be an Authorized Officer of Prudential.
98
"Available Currencies" shall mean the Dollar, the Euro,
and the Swiss Franc.
"Available Facility Amount" shall have the meaning
specified in paragraph 2B(1).
"Bank Agreements" shall mean (i) the $125,000,000 364
Day Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of October 23, 1997, among the Company and the other
Persons named as parties thereto, as amended or otherwise
modified from time to time, (ii) the $175,000,000 5 Year
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of October 23, 1997 among the Company and the other
Persons named as parties thereto, as amended or otherwise
modified from time to time and (iii) the Revolving Credit
Agreement dated September 9, 1994, among the Company and the
other Persons named as party thereto, as amended otherwise
modified from time to time.
"Bankruptcy Law" shall have the meaning specified in
clause (viii) of paragraph 7A.
"Brazilian Receivables Program" shall mean the sale by
Subsidiaries to Brazilian banks of Dollar denominated receivables
from the Company and Subsidiaries arising in the ordinary course
of business, the aggregate outstanding face amount of which shall
at no time exceed $1,000,000.
"Business Day" shall mean (i) for purposes of paragraph
10A only, any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to be closed in
New York City or (a) if with respect to Notes denominated in
Euros, Frankfurt and Brussels or (b) if with respect to Notes
denominated in Swiss Francs, Zurich (ii) for purposes of
paragraph 2B(3) only, any day which is both a New York Business
Day and a day on which Prudential is open for business and (iii)
for all other purposes, a New York Business Day.
"Cancellation Date" shall have the meaning specified in
paragraph 2B(8)(iv).
"Cancellation Fee" shall have the meaning specified in
paragraph 2B(8)(iv).
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles,
is or will be required to be capitalized on the books of the
lessee thereunder, taken at the amount thereof accounted for as
indebtedness (net of interest expenses) in accordance with such
principles.
"Closing Day" shall mean, with respect to the Series A
Notes and the Series B Notes, the Series A Closing Day and, with
respect to any Accepted Note, the Business Day specified for the
closing of the purchase and sale of such Accepted Note in the
Request for Purchase of such Accepted Note, provided that (i) if
the Company and the Purchaser which is
99
obligated to purchase such Accepted Note agree on an earlier
Business Day for such closing, the "Closing Day" for such
Accepted Note shall be such earlier Business Day, and (ii) if the
closing of the purchase and sale of such Accepted Note is
rescheduled pursuant to paragraph 2B(7), the Closing Day for such
Accepted Note, for all purposes of this Agreement except
references to "original Closing Day" in paragraph 2B(8)(iii),
shall mean the Rescheduled Closing Day with respect to such
Accepted Note.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Confirmation of Acceptance" shall have the meaning
specified in paragraph 2B(5).
"Consolidated Capitalization" shall mean, at any time
of determination thereof, the sum of Consolidated Net Worth and
Consolidated Debt.
"Consolidated Debt" shall mean, at any time of
determination thereof, all Debt of the Company and Subsidiaries
on a consolidated basis.
"Consolidated EBITDA" shall mean, for any period,
income (or loss) from operations of the Company and Subsidiaries
on a consolidated basis plus, to the extent deducted in the
calculation thereof, depreciation and amortization; provided that
there shall be excluded:
(i) the income (or loss) from operations of any Person
for any period prior to the date it becomes a Subsidiary or
is merged into or consolidated with the Company or a
Subsidiary, and
(ii) the income from operations of any Person (other
than a Subsidiary) in which the Company or any Subsidiary
has an ownership interest, except to the extent that any
such income has actually been received by the Company or any
Subsidiary in the form of cash dividends or similar
distributions.
"Consolidated Interest Expense" shall mean, for any
period, for the Company and Subsidiaries on a consolidated
basis, (i) interest expense, plus (ii) all amortization of debt
discount and expense, less (iii) interest income.
"Consolidated Net Income" shall mean, for any period,
the net income (or net loss) of the Company and its Subsidiaries
on a consolidated basis, calculated without giving effect to:
(i) the net income (or net loss) of any Person
for any period prior to the date it becomes a Subsidiary or
is merged into or consolidated with the Company or a
Subsidiary,
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(ii) the net income of any Person (other than a
Subsidiary) in which the Company or any Subsidiary has an
ownership interest, except to the extent that any such
income has actually been received by the Company or any
Subsidiary in the form of cash dividends or similar
distributions.
"Consolidated Net Worth" shall mean, at any time of
determination thereof, the sum of (i) capital stock (less
treasury stock), (ii) additional paid-in capital and (iii)
retained earnings (or accumulated deficit) of the Company and
Subsidiaries on a consolidated basis.
"Debt" shall mean with respect to any Person (without
duplication):
(i) all obligations of such Person for borrowed
money and mandatorily redeemable preferred stock;
(ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;
(iii)all obligations of such Person upon which
interest charges are customarily paid;
(iv) all obligations of such Person under
conditional sale or other title retention agreements
relating to property or assets purchased by such Person;
(v) all obligations of such Person issued or
assumed as the deferred and unpaid purchase price of
property or services (excluding trade accounts payable and
accrued obligations incurred in the ordinary course of
business that are not more than 90 days past due);
(vi) all obligations secured by any Lien or other
charge upon property or assets owned by such Person, whether
or not such Person has assumed or become liable for the
payment of such obligations,
(vii)Capitalized Lease Obligations of such Person;
(viii) all obligations of such Person in
respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange
rate hedging arrangements;
(ix) all obligations of such Person as an account
party in respect of letters of credit, bankers' acceptances
or instruments serving a similar function issued or accepted
for its account by banks and other financial institutions
(whether or not representing obligations for borrowed
money); and
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(x) all Guarantees of such Person with respect to
Debt of another Person.
"Delayed Delivery Fee" shall have the meaning specified
in paragraph 2B(8)(iii).
"Designated Country" shall mean the United States of
America and member states of the European Union.
"Dollar Delayed Delivery Fee" shall have the meaning
provided in paragraph 2B(8)(iii)(a).
"Dollars" and "$" shall mean lawful currency of the
United States of America.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean any corporation which is a
member of the same controlled group of corporations as the
Company within the meaning of section 414(b) of the Code, or any
trade or business which is under common control with the Company
within the meaning of section 414(c) of the Code.
"Euros" shall mean the single currency of participating
member states of the European Union.
"Event of Default" shall mean any of the events
specified in paragraph 7A, provided that there has been satisfied
any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further
condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Facility" shall have the meaning specified in
paragraph 2B(1).
"Good Faith Contest" shall mean an active challenge or
contest initiated in good faith for which adequate reserves have
been established in accordance with generally accepted accounting
principles.
"Guarantee" shall mean, as applied to any obligation,
(a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business),
directly or indirectly, in a manner, of any part (to the extent
of such part) or all of such
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obligation and (b) an agreement, direct or indirect, contingent
or otherwise, and whether or not constituting a guaranty, the
intention or practical effect of which is to assure the payment
or performance (or payment of damages or compensation in the
event of nonperformance) of any part (to the extent of such part)
or all of such obligation whether by (i) the purchase of
securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services
primarily for the purpose of enabling the obligor with respect to
such obligation to make any payment or performance (or payment of
damages or compensation in the event of nonperformance) of or on
account of any part or all of such obligation, or to assure the
owner of such obligation against loss, (iii) the supplying of
funds to or in any other manner investing in the obligor or any
other Person with respect to or on account of such obligation,
(iv) repayment of amounts drawn down by beneficiaries of letters
of credit or arising out of the import of goods or (v) the
indemnifying or holding harmless, in any way, of a Person against
any part (to the extent of such part) or all of such Person's
obligation under a Guarantee except for hold harmless agreements
with vendors with respect to product liability and warranties to
customers.
"Guarantor" shall mean each Subsidiary which is party
to the Subsidiary Guaranty from time to time.
"Hedge Treasury Note(s)" shall mean, with respect to
any Accepted Note, the United States Treasury Note or Notes whose
duration (as determined by Prudential) most closely matches the
duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to the
use of proceeds of any Note, any offer to purchase, or any
purchase of, shares of capital stock of any corporation or equity
interests in any other entity, or securities convertible into or
representing the beneficial ownership of, or rights to acquire,
any such shares or equity interests, if such shares, equity
interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter
market, other than purchases of such shares, equity interests,
securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other
entity for portfolio investment purposes, and such offer or
purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other
entity prior to the date on which the Company makes the Request
for Purchase of such Note.
"including" shall mean, unless the context clearly
requires otherwise, "including without limitation".
"InfoSoft Sale" shall mean the sale on or before July
31, 2001 of all equity interests and Debt of InfoSoft, LLC, held
by the Company and all Subsidiaries for a consideration which
represents the fair value thereof (as determined in good faith by
the Company's Board of Directors), so long as no assets have been
Transferred to InfoSoft LLC by the Company and Subsidiaries
subsequent to December 31, 2000, other than (i) in the
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ordinary course of business or (ii) the aggregate fair market
value of which is not in excess of $2,000,000 (if other than in
the ordinary course).
"Intercreditor Agreement" shall have the meaning
provided in paragraph 5H.
"Issuance Period" shall have the meaning specified in
paragraph 2B(2).
"Issuance Fee" shall have the meaning provided in
paragraph 2B(8)(ii).
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien (statutory or otherwise) or charge of
any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to
give any financing statement (exclusive of precautionary filings)
under the Uniform Commercial Code of any jurisdiction) or any
other type of preferential arrangement for the purpose, or having
the effect, of protecting a creditor against loss or securing the
payment or performance of an obligation.
"Material Subsidiary" shall mean any Subsidiary (i)
which provided 5% or more of Consolidated Net Income during the
fiscal year of the Company most recently ended at any time of
determination, (ii) whose tangible assets represented 5% or more
of the tangible assets of the Company and Subsidiaries on a
consolidated basis as of the last day of the fiscal year of the
Company most recently ended at any time of determination, or
(iii) whose net worth represented 5% or more of Consolidated Net
Worth as of the last day of the fiscal year of the Company most
recently ended at any time of determination; provided that, if at
any time the aggregate amount of net income, tangible assets or
net worth of all Subsidiaries incorporated or otherwise organized
in the United States that are not Material Subsidiaries exceeds
15% of Consolidated Net Income for any such fiscal year, 15% of
the consolidated tangible assets of the Company and Subsidiaries
as of the end of any such fiscal year or 15% of Consolidated Net
Worth as of the end of any such fiscal year (as applicable), the
Company shall designate as "Material Subsidiaries" Subsidiaries
incorporated or otherwise organized in the United States
sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of this Agreement constitute Material Subsidiaries.
"Multiemployer Plan" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA.
"New York Business Day" means any day other than a
Saturday, a Sunday or a day on which commercial banks in New York
are required or authorized to be closed.
"Non-Dollar Delayed Delivery Fee" shall have the
meaning provided in paragraph 2B(8)(iii)(b).
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"Notes" shall have the meaning specified in paragraph
1B.
"Officer's Certificate" shall mean a certificate signed
in the name of the Company by an Authorized Officer of the
Company.
"Overnight Interest Rate" means (a) with respect to an
Accepted Note denominated in a currency other than Dollars, the
actual rate of interest, if any, received by the Purchaser which
intends to purchase such Accepted Note on the overnight deposit
of the funds intended to be used for the purchase of such
Accepted Note, it being understood that reasonable efforts will
be made by or on behalf of the Purchaser to make any such deposit
in an interest bearing account.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation.
"Percentage of Assets Transferred" shall mean, with
respect to each asset Transferred pursuant to clause (ii) of
paragraph 6B(3) and paragraph 6B(4), the ratio (expressed as a
percentage) of (i) the greater of such asset's fair market value
or book value on the date of such Transfer to (ii) the
consolidated total assets of the Company and Subsidiaries on the
last day of the fiscal year most recently ended as of the date of
such Transfer.
"Percentage of Earnings Capacity Transferred" shall
mean, with respect to each asset Transferred pursuant to clause
(ii) of paragraph 6B(3) or paragraph 6B(4), the percentage of
Consolidated EBITDA produced by, or attributable to, such asset
during the fiscal year most recently ended prior to the date of
such Transfer.
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Plan" shall mean any employee pension benefit plan (as
such term is defined in section 3 of ERISA) which is or has been
established or maintained, or to which contributions are or have
been made, by the Company or any ERISA Affiliate.
"Priority Debt" shall mean, at any time of
determination thereof, without duplication, (i) Debt of the
Company secured by Liens not otherwise permitted by clauses (i)
through (ix) of paragraph 6B(1), plus (ii) Debt of Subsidiaries
(other than (a) Debt of any Subsidiary owed to the Company or any
Wholly-Owned Subsidiary, (b) prior to September 30, 2001, Debt of
a Guarantor evidenced by a Guarantee of Debt of the Company under
a Bank Agreement and (c) on or subsequent to September 30, 2001,
Debt of a Guarantor evidenced by a Guarantee of Debt of the
Company each beneficiary of which is a party to the Intercreditor
Agreement) plus (iii) the book value (at the time of sale) of all
assets sold by the Company and Subsidiaries subsequent to March
1, 2001 which were the subject of a Sale and Leaseback
Transaction (other than a Sale-Leaseback Transaction permitted by
paragraph 6B(8)(i)).
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"Prudential" shall mean The Prudential Insurance
Company of America.
"Prudential Affiliate" shall mean (i) any corporation
or other entity controlling, controlled by, or under common
control with, Prudential and (ii) any managed account or
investment fund which is managed by Prudential or a Prudential
Affiliate described in clause (i) of this definition. For
purposes of this definition the terms "control", "controlling"
and "controlled" shall mean the ownership, directly or through
subsidiaries, of a majority of a corporation's or other Person's
Voting Stock or equivalent voting securities or interests.
"Purchasers" shall mean Prudential with respect to the
Series A Notes and Series B Notes and, with respect to any
Accepted Notes, Prudential and/or the Prudential Affiliate(s),
which are purchasing such Accepted Notes.
"Quotation" shall have the meaning provided in
paragraph 2B(4).
"Recognized DM Market Makers" shall mean two
internationally recognized dealers of German Government treasury
securities reasonably selected by Prudential.
"Recognized Swiss Franc Market Makers" shall mean two
internationally recognized dealers of Swiss Government treasury
securities reasonably selected by Prudential.
"Related Party" shall mean (i) any Person (other than
the Company or a Subsidiary) owning 10% or more of the
outstanding capital stock of the Company or any Subsidiary
thereof, (ii) all Persons to whom any Person described in clause
(i) is related by blood, adoption or marriage and (iii) all
Affiliates of the foregoing Persons.
"Request for Purchase" shall have the meaning specified
in paragraph 2B(3).
"Required Holder(s)" shall mean the holder or holders
of at least 51% of the aggregate principal amount of the Notes or
of a Series of Notes, as the context may require, from time to
time outstanding.
"Rescheduled Closing Day" shall have the meaning
specified in paragraph 2B(7).
"Responsible Officer" shall mean the chief executive
officer, chief operating officer, chief financial officer or
chief accounting officer of the Company, general counsel of the
Company or any other officer of the Company involved principally
in its financial administration or its controllership function.
"Sale and Leaseback Transaction" shall have the meaning
provided in paragraph 6B(8) hereof.
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"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series" shall have the meaning specified in paragraph
1B.
"Series A Closing Day" shall have the meaning specified
in paragraph 2A.
"Series A Note(s)" shall have the meaning specified in
paragraph 1A.
"Significant Holder" shall mean (i) Prudential, so long
as Prudential or any Prudential Affiliate shall hold (or be
committed under this Agreement to purchase) any Note, or (ii) any
other holder of at least 5% of the aggregate principal amount of
the Notes of any Series from time to time outstanding.
"Structuring Fee" shall have the meaning provided in
paragraph 2B(8)(i).
"Subsidiary" shall mean, with respect to any Person
(herein referred to as the "Parent"), any other Person (i) which
is required or permitted to be consolidated with the Parent in
accordance with generally accepted accounting principles and (ii)
of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, owned
by the Parent or one or more Subsidiaries of the Parent or by the
Parent and one or more Subsidiaries of the Parent. Unless the
context clearly requires otherwise, a reference to "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Guaranty" shall mean a subsidiary guaranty
in the form attached hereto as Exhibit F.
"Swiss Francs" shall mean lawful currency of
Switzerland.
"Transfer" shall mean, with respect to any item, the
sale, exchange, conveyance, lease, transfer or other disposition
of such item.
"Transferee" shall mean any direct or indirect
transferee of all or any part of any Note purchased by any
Purchaser under this Agreement.
"Voting Stock" shall mean, with respect to any
corporation, any shares of stock of such corporation whose
holders are entitled under ordinary circumstances to vote for the
election of directors of such corporation (irrespective of
whether 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).
"Wholly-Owned Subsidiary" shall mean, at any time, any
Subsidiary one hundred percent (100%) of the equity interests and
voting interests (except shares required as
107
directors' qualifying shares) of which are owned by any one or
more of the Company and the Company's other Wholly-Owned
Subsidiaries at such time.
10C. Accounting Principles, Terms and
Determinations10C.Accounting Principles, Terms and
Determinations. All references in this Agreement to "generally
accepted accounting principles" shall be deemed to refer to
generally accepted accounting principles in effect in the United
States at the time of application thereof. Unless otherwise
specified herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting
matters hereunder shall be made, and all unaudited financial
statements and certificates and reports as to financial matters
required to be furnished hereunder shall be prepared, in
accordance with generally accepted accounting principles applied
on a basis consistent with the most recent audited financial
statements delivered pursuant to clause (ii) of paragraph 5A or,
if no such statements have been so delivered, the most recent
audited financial statements referred to in clause (i) of
paragraph 8B.
11. MISCELLANEOUS11. MISCELLANEOUS.
11A. Note Payments11A. Note Payments. The Company
agrees that, so long as any Purchaser shall hold any Note, it
will make payments of principal of, interest on, and any
Yield-Maintenance Amount payable with respect to, such Note,
which comply with the terms of this Agreement, by wire transfer
of immediately available funds for credit (not later than 12:00
noon, New York City local time, on the date due) to (i) the
account or accounts of such Purchaser specified in the Purchaser
Schedule attached hereto in the case of any Series A Note or
Series B Note, (ii) the account or accounts of such Purchaser
specified in the Confirmation of Acceptance with respect to such
Note in the case of any Shelf Note or (iii) such other account or
accounts in the United States as such Purchaser may from time to
time designate in writing, notwithstanding any contrary provision
herein or in any Note with respect to the place of payment. Each
Purchaser agrees that, before disposing of any Note, it will make
a notation thereon (or on a schedule attached thereto) of all
principal payments previously made thereon and of the date to
which interest thereon has been paid. The Company agrees to
afford the benefits of this paragraph 11A to any Transferee which
shall have made the same agreement as the Purchasers have made in
this paragraph 11A.
11B. Expenses11B. Expenses. The Company agrees,
whether or not the transactions contemplated hereby shall be
consummated, to pay, and save Prudential, each Purchaser and any
Transferee harmless against liability for the payment of, all
out-of-pocket expenses arising in connection with such
transactions, including (i) all document production and
duplication charges and the fees and expenses of any special
counsel engaged by the Purchasers or any Transferee in connection
with this Agreement, the Intercreditor Agreement or the
Subsidiary Guaranty, the transactions contemplated hereby or
thereby and any subsequent proposed modification of, or proposed
consent under, this Agreement, the Intercreditor Agreement or the
Subsidiary Guaranty, whether or not such proposed modification
shall be effected or proposed consent granted, and (ii) the costs
and expenses, including reasonable attorneys' fees, incurred by
any Purchaser or any Transferee in enforcing (or determining
whether or how to
108
enforce) any rights under this Agreement, the Intercreditor
Agreement, the Subsidiary Guaranty or the Notes or in responding
to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the
Intercreditor Agreement or the Subsidiary Guaranty or the
transactions contemplated hereby or thereby or by reason of any
Purchaser's or any Transferee's having acquired any Note,
including without limitation costs and expenses incurred in any
bankruptcy case. The obligations of the Company under this
paragraph 11B shall survive the transfer of any Note or portion
thereof or interest therein by any Purchaser or any Transferee
and the payment of any Note.
11C. Consent to Amendments11C. Consent to Amendments.
This Agreement may be amended, and the Company may take any
action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Company shall obtain the
written consent to such amendment, action or omission to act, of
the Required Holder(s) of the Notes of each Series except that,
(i) with the written consent of the holders of all Notes of a
particular Series, and if an Event of Default shall have occurred
and be continuing, of the holders of all Notes of all Series, at
the time outstanding (and not without such written consents), the
Notes of such Series may be amended or the provisions thereof
waived to change the maturity thereof, to change or affect the
principal thereof, or to change or affect the rate or time of
payment of interest on or any Yield-Maintenance Amount payable
with respect to the Notes of such Series, (ii) without the
written consent of the holder or holders of all Notes at the time
outstanding, no amendment to or waiver of the provisions of this
Agreement shall change or affect the provisions of paragraph 7A
or this paragraph 11C insofar as such provisions relate to
proportions of the principal amount of the Notes of any Series,
or the rights of any individual holder of Notes, required with
respect to any declaration of Notes to be due and payable or with
respect to any consent, amendment, waiver or declaration,
(iii) with the written consent of Prudential (and not without the
written consent of Prudential) the provisions of paragraph 2B may
be amended or waived (except insofar as any such amendment or
waiver would affect any rights or obligations with respect to the
purchase and sale of Notes which shall have become Accepted Notes
prior to such amendment or waiver), and (iv) with the written
consent of all of the Purchasers which shall have become
obligated to purchase Accepted Notes of any Series (and not
without the written consent of all such Purchasers), any of the
provisions of paragraphs 2B and 3 may be amended or waived
insofar as such amendment or waiver would affect only rights or
obligations with respect to the purchase and sale of the Accepted
Notes of such Series or the terms and provisions of such Accepted
Notes. Each holder of any Note at the time or thereafter
outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to
indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing
between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate
as a waiver of any rights of any holder of such Note. As used
herein and in the Notes, the term "this Agreement" and references
thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
11D. Form, Registration, Transfer and Exchange of
Notes; Lost Notes
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11D. Form, Registration, Transfer and Exchange of Notes; Lost
Notes. The Notes are issuable as registered notes without
coupons in denominations of at least $1,000,000, except as may be
necessary to reflect any principal amount not evenly divisible by
$1,000,000. The Company shall keep at its principal office a
register in which the Company shall provide for the registration
of Notes and of transfers of Notes. Upon surrender for
registration of transfer of any Note at the principal office of
the Company, the Company shall, at its expense, execute and
deliver one or more new Notes of like tenor and of a like
aggregate principal amount, registered in the name of such
transferee or transferees. At the option of the holder of any
Note, such Note may be exchanged for other Notes of like tenor
and of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Note to be exchanged at
the principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the holder making the
exchange is entitled to receive. Each prepayment of principal
payable on each prepayment date upon each new Note issued upon
any such transfer or exchange shall be in the same proportion to
the unpaid principal amount of such new Note as the prepayment of
principal payable on such date on the Note surrendered for
registration of transfer or exchange bore to the unpaid principal
amount of such Note. No reference need be made in any such new
Note to any prepayment or prepayments of principal previously due
and paid upon the Note surrendered for registration of transfer
or exchange. Every Note surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer duly executed, by the holder of
such Note or such holder's attorney duly authorized in writing.
Any Note or Notes issued in exchange for any Note or upon
transfer thereof shall carry the rights to unpaid interest and
interest to accrue which were carried by the Note so exchanged or
transferred, so that neither gain nor loss of interest shall
result from any such transfer or exchange. Upon receipt of
written notice from the holder of any Note of the loss, theft,
destruction or mutilation of such Note and, in the case of any
such loss, theft or destruction, upon receipt of such holder's
unsecured indemnity agreement, or in the case of any such
mutilation upon surrender and cancellation of such Note, the
Company will make and deliver a new Note, of like tenor, in lieu
of the lost, stolen, destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations11E.Persons
Deemed Owners; Participations. Prior to due presentment for
registration of transfer, the Company may treat the Person in
whose name any Note is registered as the owner and holder of such
Note for the purpose of receiving payment of principal of and
interest on, and any Yield-Maintenance Amount payable with
respect to, such Note and for all other purposes whatsoever,
whether or not such Note shall be overdue, and the Company shall
not be affected by notice to the contrary. Subject to the
preceding sentence, the holder of any Note may from time to time
grant participations in all or any part of such Note to any
Person on such terms and conditions as may be determined by such
holder in its sole and absolute discretion.
11F. Survival of Representations and Warranties; Entire
Agreement11F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein
or made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this
Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein
110
and the payment of any Note, and may be relied upon by any
Transferee, regardless of any investigation made at any time by
or on behalf of any Purchaser or any Transferee. Subject to the
preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter.
11G. Successors and Assigns11G. Successors and
Assigns. All covenants and other agreements in this Agreement
contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns
of the parties hereto (including, without limitation, any
Transferee) whether so expressed or not.
11H. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a
particular action or condition is prohibited by any one of such
covenants, the fact that it would be permitted by an exception
to, or otherwise be in compliance within the limitations of,
another covenant shall not avoid the occurrence of a Default or
Event of Default if such action is taken or such condition exists.
11I. Notices11I. Notices. All written
communications provided for hereunder (other than communications
provided for under paragraph 2) shall be sent by first class mail
or nationwide overnight delivery service (with charges prepaid)
and (i) if to any Purchaser, addressed as specified for such
communications in the Purchaser Schedule attached hereto (in the
case of the Series A Notes and the Series B Notes) or the
Purchaser Schedule attached to the applicable Confirmation of
Acceptance (in the case of any Shelf Notes) or at such other
address as any such Purchaser shall have specified to the Company
in writing, (ii) if to any other holder of any Note, addressed to
it at such address as it shall have specified in writing to the
Company or, if any such holder shall not have so specified an
address, then addressed to such holder in care of the last holder
of such Note which shall have so specified an address to the
Company and (iii) if to the Company, addressed to it at 000 Xxxx
Xxxxxxx Xxxxxx, Xxxx, XX 00000-0000, attention: Treasurer (with
a copy to the same address to the attention of the Company's
secretary), provided, however, that any such communication to the
Company may also, at the option of the Person sending such
communication, be delivered by any other means either to the
Company at its address specified above or to any Authorized
Officer of the Company. Any communication pursuant to
paragraph 2 shall be made by the method specified for such
communication in paragraph 2, and shall be effective to create
any rights or obligations under this Agreement only if, in the
case of a telephone communication, an Authorized Officer of the
party conveying the information and of the party receiving the
information are parties to the telephone call, and in the case of
a telecopier communication, the communication is signed by an
Authorized Officer of the party conveying the information,
addressed to the attention of an Authorized Officer of the party
receiving the information, and in fact received at the telecopier
terminal the number of which is listed for the party receiving
the communication in the Information Schedule or at such other
telecopier terminal as the party receiving the information shall
have specified in writing to the party sending such information.
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11J. Payments Due on Non-Business Days11J. Payments
Due on Non-Business Days. Anything in this Agreement or the
Notes to the contrary notwithstanding, any payment of principal
of or interest on, or Yield-Maintenance Amount payable with
respect to, any Note that is due on a date other than a New York
Business Day shall be made on the next succeeding New York
Business Day. If the date for any payment is extended to the
next succeeding New York Business Day by reason of the preceding
sentence, the period of such extension shall not be included in
the computation of the interest payable on such New York Business
Day.
11K. Severability11K. Severability. Any provision
of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
11L. Descriptive Headings11L. Descriptive Headings.
The descriptive headings of the several paragraphs of this
Agreement are inserted for convenience only and do not constitute
a part of this Agreement.
11M. Satisfaction Requirement11M. Satisfaction
Requirement. If any agreement, certificate or other writing, or
any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any Purchaser, to any
holder of Notes or to the Required Holder(s), the determination
of such satisfaction shall be made by such Purchaser, such holder
or the Required Holder(s), as the case may be, in the sole and
exclusive judgment (exercised in good faith) of the Person or
Persons making such determination.
11N. Governing Law11N. Governing Law. IN ACCORDANCE
WITH THE PROVISIONS OF ss.5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE INTERNAL LAW OF THE STATE OF NEW YORK.
11O. Payment Currency. All payments on account of the
Series A Notes, Series B Notes and any Shelf Notes denominated in
Swiss Francs (including principal, interest and Yield-Maintenance
Amounts) shall be made in Swiss Francs. All payments on account
of any Shelf Notes denominated in any other Available Currency
(including principal, interest and Yield-Maintenance Amounts)
shall be made in such Available Currency.
11P. Judgment Currency. Any payment on account of an
amount that is payable hereunder or under the Notes in a
specified currency (the "Specified Currency") which,
notwithstanding the requirement of paragraph 11O, is made to or
for the account of any holder of a Note in lawful currency of any
other jurisdiction (the "Other Currency"), whether as a result of
any judgment or order or the enforcement thereof or the
realization of any security or the liquidation of the Company,
shall constitute a discharge of the Company's
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obligation under this Agreement and such Notes only to the extent
of the amount of the Specified Currency which such holder could
purchase in New York foreign exchange markets with the amount of
the Other Currency in accordance with normal banking procedures
at the rate of exchange prevailing at 10:00 A.M. on the first New
York Business Day following receipt of the payment first referred
to above. If the amount of the Specified Currency that could be
so purchased is less than the amount of Specified Currency
originally due to such holder, the Company shall indemnify and
save harmless such holder from and against all loss or damage
arising out of or as a result of such deficiency. This indemnity
shall constitute an obligation separate and independent from the
other obligations contained in this Agreement, shall give rise to
a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any holder of a Note
from time to time and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in
respect of an amount due hereunder or under any judgment or order.
11Q. Payments Free and Clear of Taxes. The Company
will pay all amounts of principal of, Yield Maintenance Amount,
if any, and interest on the Notes, and all other amounts payable
hereunder or under the Notes, without set-off or counterclaim and
free and clear of, and without deduction or withholding for or on
account of, all present and future income, stamp, documentary and
other taxes and duties, and all other levies, imposts, charges,
fees, deductions and withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any governmental
authority (except net income taxes and franchise taxes in lieu of
net income taxes imposed on any holder of any Note by its
jurisdiction of incorporation or the jurisdiction in which its
applicable lending office is located) (all such non-excluded
taxes, duties, levies, imposts, duties, charges, fees, deductions
and withholdings being hereinafter called "Taxes"). If any Taxes
are required to be withheld from any amounts payable to a holder
of any Notes, the amounts so payable to such holder shall be
increased to the extent necessary to yield such holder (after
payment of all Taxes) interest on any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Taxes are payable by the
Company, as promptly as possible thereafter, the Company shall
send to each holder of the Notes, a certified copy of an original
official receipt received by the Company showing payment
thereof. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to each holder of
the Notes the required receipts or other required documentary
evidence, the Company shall indemnify each holder of the Notes
for any Taxes (including interest or penalties) that may become
payable by such holder as a result of any such failure. The
obligations of the Company under this paragraph 11Q shall survive
the payment and performance of the Notes and the termination of
this Agreement.
11R. Severalty of Obligations. The sales of Notes to
the Purchasers are to be several sales, and the obligations of
Prudential and the Purchasers under this Agreement are several
obligations. No failure by Prudential or any Purchaser to
perform its obligations under this Agreement shall relieve any
other Purchaser or the Company of any of its obligations
hereunder, and neither Prudential nor any Purchaser shall be
responsible for the obligations of,
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or any action taken or omitted by, any other such Person
hereunder.
11S. Counterparts11P. Counterparts. This Agreement
may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute
one instrument.
11T. Binding AgreementQ. Binding Agreement. When this
Agreement is executed and delivered by the Company and
Prudential, it shall become a binding agreement between the
Company and Prudential. This Agreement shall also inure to the
benefit of each Purchaser which shall have executed and delivered
a Confirmation of Acceptance, and each such Purchaser shall be
bound by this Agreement to the extent provided in such
Confirmation of Acceptance.
[Balance of Page Intentionally Left Blank]
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R. Maximum Interest Payable
Very truly yours,
Dentsply International Inc.
By:
Name:
Title:
By:
Name:
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
The Prudential Insurance Company
of America
By:
Name:
Title: Vice President
[Signature Page For Note Purchase Agreement]
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