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EXHIBIT 4.13
Supplemental Indenture No. 1
This Supplemental Indenture No. 1, dated as of March 6, 1998 (the
"Supplemental Indenture"), between Xxxxxxx Instruments, Inc. (together with its
successors and assigns, the "Company") and The First National Bank of Chicago
(the "Trustee"), as Trustee under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Company and the Trustee have heretofore become
parties to an Indenture, dated as of May 15, 1996 (as amended, supplemented,
waived or otherwise modified, the "Indenture");
WHEREAS, pursuant to an officer's certificate dated May 30, 1996
(the "Officer's Certificate"), the Company established a series of securities
providing for the issuance of an aggregate principal amount of $100,000,000 of
7.05% Debentures due June 1, 2026 (the "Debentures");
WHEREAS, pursuant to the Debentures, the Company is required, at
the option of the Holder, to repay all or any part of such Holder's Debentures
on June 1, 2006;
WHEREAS, pursuant to Section 901 of the Indenture, the parties
hereto are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company and the Trustee mutually covenant and agree for the benefit of the
Holders of the Securities as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Indenture. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
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ARTICLE II.
AMENDMENTS TO CERTAIN PROVISIONS OF THE INDENTURE
SECTION 2.1. AMENDMENT OF THE DEBENTURES.
The second full paragraph on page 3 of the face of the Debentures
is hereby deleted in its entirety and replaced with the following paragraph:
"Subject to and upon compliance with the provisions set forth
herein, each Holder shall have the right, at such Holder's option, to
require the Company to repay, and if such right is exercised the Company
shall repay, all or any part of such Holder's Securities on June 1, 2006
(the Repayment Date") at a price (the "Repayment Price") equal to
103.900% of the principal amount thereof, together with accrued interest
to June 1, 2006."
SECTION 2.2. AMENDMENT OF SECTION 101 OF THE INDENTURE.
Section 101 of the Indenture is hereby amended to add the
following definitions:
"`Bank Indebtedness' means any and all Indebtedness or other
amounts, whether outstanding on the Issue Date or thereafter incurred,
payable under or in respect of the Credit Facility or any refundings,
refinancings, restructurings, replacements, renewals, increases or
extensions in respect thereof, including in each case (without
limitation) principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Subsidiary whether or not
a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, Guarantees, other monetary
obligations of any nature and all other amounts payable under or in
respect of any of the foregoing."
"`Capital Lease Obligation' of any Person means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease for property leased by such Person that would
at such time be required to be capitalized on the balance sheet of such
Person in accordance with GAAP."
"`Capital Stock' of any Person means (i) in the case of a
corporation, corporate stock, (ii) in the case of an association,
limited liability company or business entity, any and all Equity
Interests, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person, including any Preferred Stock."
"`Commodity Price Protection Agreement' means any forward
contract, commodity swap, commodity option or other similar financial
agreement or
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arrangement relating to, or the value which is dependent upon,
fluctuations in commodity prices."
"`Credit Agreement' means the credit agreement dated as of
October 31, 1997, among the Company, the banks and other financial
institutions party thereto from time to time, Citicorp USA, Inc., as
agent, Citicorp Securities, Inc., as arranger, and Xxxxxxx Xxxxx & Co.,
as syndication agent, as such agreement may be amended, supplemented,
waived or otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from time
to time (whether in whole or in part, whether with the original agents
and lenders or other agents and lenders or otherwise, and whether
provided under the original Credit Agreement or otherwise)."
"`Credit Facility' means the collective reference to the Credit
Agreement, any notes and letters of credit issued pursuant thereto and
any guarantees, security agreements, pledges, mortgages, letter of
credit applications and other collateral documents, and other
instruments and documents, executed and delivered pursuant to or in
connection with any of the foregoing, in each case as the same may be
amended, supplemented, waived or otherwise modified from time to time,
or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part,
whether with the original agents and lenders or other agents and lenders
or otherwise, and whether provided under the original Credit Agreement
or otherwise)."
"`Currency Hedging Arrangements' means one or more of the
following agreements which shall be entered into by one or more
financial institutions: foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to
protect against the fluctuations in currency values."
"`Debenture Guarantee' means each Guarantee of the Debentures by
the Debenture Guarantors and any Guarantee of the Debentures that may
from time to time be executed and delivered pursuant to the terms of the
Indenture. Each such Debenture Guarantee shall be in the form prescribed
by the Indenture."
"`Debenture Guarantors' means each of Xxxxxxx Corporation,
Xxxxxxx Instruments (Naguabo) Inc., Hybritech Incorporated, SmithKline
Diagnostics, Inc. and Xxxxxxx Leasing Corporation and any Subsidiary
that has issued a Debenture Guarantee."
"`Disqualified Stock' means (i) any Preferred Stock of any
Subsidiary and (ii) any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
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otherwise, or is redeemable at the option of the holder thereof (other
than upon a change of control of the Company in circumstances where the
holders of the Debentures would have similar rights), in whole or in
part on or prior to the stated maturity of any Debentures."
"`Equity Interest' in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate
stock or other equity participations, including limited liability
company interests, in such Person."
"`GAAP' means, with respect to any series of Securities,
generally accepted accounting principles in the United States of America
as in effect on the date of original issuance of such series of
Securities, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statement by such
other entity as approved by a significant segment of the United States
accounting profession."
"`Guarantee' means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person, and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such Person (whether arising by
virtue of partnership arrangements, or by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part),
provided, however, that the term `Guarantee' shall not include
endorsements for collection or deposit in the ordinary course of
business. The term `Guarantee' used as a verb has a corresponding
meaning."
"`Indebtedness' means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such
Person for borrowed money or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all obligations of such Person to
pay the deferred or unpaid purchase price of property or services, which
purchase price is due more than one year after the date of placing such
property in service or taking delivery and title thereto or the
completion of such service, (iii) all Capital Lease Obligations of such
Person, (iv) all obligations of such Person in respect of letters of
credit or bankers' acceptances issued or created for the account of such
Person, (v) to the extent not otherwise included in this definition, all
net obligations of such Person under all Interest Rate Agreement,
Currency Hedging Arrangements or Commodity Price Protection Agreements
of such Person, (vi) all liabilities of others of
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the kind described in the preceding clause (i), (ii) or (iii) secured by
any Lien on any property owned by such Person even if such Person has
not assumed or otherwise become liable for the payment thereof, to the
extent of the value of the property subject to such Lien, (vii) all
Disqualified Stock issued by such Person, and (viii) to the extent not
otherwise included, any Guarantee by such Person of any other Person's
indebtedness or other obligations described in clauses (i) through (vii)
above. `Indebtedness' of the Company and its Subsidiaries shall not
include (i) current trade payables incurred in the ordinary course of
business and payable in accordance with customary practices and (ii)
non-interest bearing installment obligations and accrued liabilities
incurred in the ordinary course of business which are not more than 90
days past due."
"`Indenture Obligations' means the obligations of the Company and
any other obligor under this Indenture or under the Securities, to pay
principal of, premium, if any, and interest on the Securities when due
and payable, whether at maturity, by acceleration, call for redemption
or repurchase or otherwise , and all other amounts due or to become due
under or in connection with this Indenture, the Securities or the
Debenture Guarantees and the performance of all other obligations to the
Trustee (including, but not limited to, payment of all amounts due the
Trustee under Section 607 of the Indenture) and the Holders of the
Securities of either series under this Indenture, the Securities and the
Debenture Guarantees, according to the terms thereof."
"`Interest Rate Agreements' means one or more of the following
agreements which shall be entered into by one or more financial
institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar
agreements) and/or other types of interest rate hedging agreements from
time to time."
"`Issue Date' means, with respect to the Company's 7.05%
Debentures due 2026, March 6, 1998, and means, with respect to any other
series of Securities, the date of original issuance of such series of
Securities."
"`Preferred Stock' as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to
the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such Person, over Capital Stock of any other class of
such Person."
"`Stated Maturity' means, when used in any supplemental indenture
executed pursuant to Section 1011, the date specified in such security
as the fixed date on which the payment of principal of such security is
due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the
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purchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless
such contingency has occurred). `Stated Maturity' shall otherwise have
the meaning set forth in the Indenture."
"`Subsidiary' of a Person means, for purposes of Section 1011 and
when used in any supplemental indenture executed pursuant thereto, a
Person more than 50% of the outstanding voting stock or other Equity
Interests of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting" stock
or other Equity Interests means stock or other Equity Interests which
ordinarily has voting power for the election of directors, trustees or
similar managers, whether at all times or only so long as no senior
class of stock or other Equity Interests has such voting power by reason
of any contingency. `Subsidiary,' shall otherwise have the meaning set
forth in the Indenture."
SECTION 2.3. AMENDMENT OF ARTICLE TEN OF THE INDENTURE.
Article Ten of the Indenture is hereby amended to add the
following paragraph in its entirety immediately following the text of SECTION
1010:
"SECTION 1011.Future Debenture Guarantors."
"The Company may elect, at its option at any time, to have this
Section 1011 apply to any Securities or any series of Securities, in
accordance with the requirements set forth below in this Section. The
Company hereby elects to have this Section 1011 apply to the
Debentures."
"The Company will cause each Subsidiary that Guarantees any Bank
Indebtedness promptly to execute and deliver to the Trustee a
supplemental indenture substantially in the form set forth in Exhibit A
to this Indenture pursuant to which such Subsidiary will guarantee the
Company's obligations under the Indenture and the Securities of each
series, in accordance with and as further provided in such supplemental
indenture. Concurrently therewith, the Company shall deliver to the
Trustee an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such
Subsidiary and that, subject to the applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium
and other laws now or hereafter in effect affecting creditors' rights or
remedies generally and the general principles of equity, such
supplemental indenture is a valid and binding agreement of such
Subsidiary, enforceable against such Subsidiary in accordance with its
terms."
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SECTION 2.4. AMENDMENT OF THE INDENTURE ADDING EXHIBIT A.
The Indenture is hereby amended to add Exhibit A hereto in its
entirety, as the form of Exhibit A to the Indenture.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. PARTIES.
Nothing in this Supplemental Indenture is intended or shall be
construed to give any Person, other than the Holders and the Trustee, any legal
or equitable right, remedy or claim under any provision contained herein.
SECTION 3.2. GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF
SUCH LAWS).
SECTION 3.3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE.
Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.4. COUNTERPARTS.
The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute
one and the same agreement.
SECTION 3.5. HEADINGS.
The section headings herein are for convenience of reference only
and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
XXXXXXX INSTRUMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Finance and
Attest: Chief Financial Officer
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Attest: Title: Assistant Vice President
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Exhibit A
Form of Supplemental Indenture in Respect of Debenture Guarantee
This Supplemental Indenture, dated as of [___________] (this
"Supplemental Indenture.), among [name of Debenture Guarantor(s)] (the
"Debenture Guarantor(s)"), [Company] (together with its successors and assigns,
the "Company"), each other then existing Subsidiary Guarantor under the
Indenture referred to below, and [Trustee], as Trustee under the Indenture
referred to below.
W I T N E S S E T H
WHEREAS, the Company and the Trustee have heretofore become
parties to an Indenture, dated as of May 15, 1996 (as amended, supplemented,
waived or otherwise modified, the "Indenture");
WHEREAS, Section 1011 of the Indenture provides that under
certain circumstances the Company is required to cause a Debenture Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Debenture Guarantor shall guarantee the Company's obligations under the a
series of Securities pursuant to a Debenture Guarantee on the terms and
conditions set forth herein; and
WHEREAS, the Debenture Guarantors are executing this Supplemental
Indenture pursuant to which the Debenture Guarantors will guarantee the
Company's obligations under [name of series of Securities] (the "Securities") on
the terms and conditions set forth herein;
WHEREAS, pursuant to Sections 901 and 1011 of the Indenture, the
parties hereto are authorized to execute and deliver this Supplemental Indenture
to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Debenture Guarantor, the Company, the other Debenture Guarantors, if any,
and the Trustee mutually covenant and agree for the benefit of the Holders of
the Securities as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Indenture. The words "herein,"
"hereof" and "hereby" and
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other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II.
AGREEMENT TO GUARANTEE
SECTION 2.1. AGREEMENT TO GUARANTEE.
The Debenture Guarantor hereby agrees to be bound by all
applicable provisions of the Indenture as a Debenture Guarantor and to guarantee
the Company's obligations under the Indenture and the Securities on the terms
and subject to the conditions set forth below:
SECTION 2.1.1 UNCONDITIONAL GUARANTEE.
(a) Each Debenture Guarantor hereby jointly and severally
and fully and unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee and its successors and
assigns that: (1) the principal of, and premium, if any, and interest
on, the Securities of each series will be duly and punctually paid in
full when due, whether at maturity, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law)
interest, if any, on the Securities of each series and all other
obligations of the Company or the Debenture Guarantors to the Holders or
the Trustee hereunder and thereunder (including fees, expenses or other)
and all other Indenture Obligations will be promptly paid in full or
performed, all in accordance with the terms hereof; and (2) in case of
any extension of time of payment or renewal of any Securities of either
series or any of such other Indenture Obligations with respect to the
Securities of either series, the same will be promptly paid in full when
due in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due
of any amount so guaranteed, or failing performance of any other
obligation of the Company to the Holders of Securities of either series,
for whatever reason, each Debenture Guarantor will be obligated to pay
or cause the payment of, or to perform or cause the performance of, the
same immediately. An Event of Default under this Indenture or the
Securities of either series shall constitute an event of default under
this Debenture Guarantee, and shall entitle the Holders of Securities of
such series to accelerate the obligations of the Debenture Guarantor
hereunder in the same manner and to the same extent as the obligations
of the Company.
Each Debenture Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of this Indenture, the Securities
of either series or the obligations of the Company or any other
Debenture Guarantor to the Holders or the Trustee hereunder or
thereunder, the absence of any action to enforce the same, any waiver or
consent by any Holder of Securities with respect to any provisions
hereof or thereof, any release of any other Debenture Guarantor, the
recovery of any judgment against the Company, any action to
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enforce the same, whether or not a Debenture Guarantee is affixed to any
particular Security, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
Each Debenture Guarantor hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that (except as otherwise provided in
Section 2.1.2) its Debenture Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities,
this Indenture and this Debenture Guarantee. This Debenture Guarantee is
a guarantee of payment and not of collection. Each Debenture Guarantor
further agrees that, as between it, on the one hand, and the Holders of
Securities and the Trustee, on the other hand (1) subject to this
Section 2.1, the maturity of the obligations guaranteed hereby may be
accelerated as and to the extent provided in Article Five of the
Indenture for the purposes of this Debenture Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (2) in the event of
any acceleration of such obligations as provided in Article Five of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Debenture Guarantor for the
purpose of this Debenture Guarantee. Neither the Trustee nor any other
Person shall have any obligation to enforce or exhaust any rights or
remedies or to take any other steps under any security for the Indenture
Obligations or against the Company or any other Person or any property
of the Company or any other Person before the Trustee is entitled to
demand payment and performance by any or all Debenture Guarantors of
their liabilities and obligations under their respective Debenture
Guarantees or under this Indenture.
Until terminated in accordance with Section 2.1.2, this
Debenture Guarantee shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver
or trustee be appointed for all or any significant part of the Company's
assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time
payment and performance of the Securities of either series are, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on such Securities, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though
such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities of the relevant series shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
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(b) Each Debenture Guarantor that makes a payment or
distribution under this Debenture Guarantee shall have the right to seek
contribution from any non-paying Debenture Guarantor so long as the
exercise of such right does not impair the rights of the Holders under
this Debenture Guarantee.
(c) Notwithstanding any of the foregoing, each Debenture
Guarantor's liability under this Debenture Guarantee shall be limited to
the maximum amount that would not result in this Debenture Guarantee
constituting a fraudulent conveyance or fraudulent transfer under
applicable law.
(d) Each Debenture Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that its Debenture Guarantee, and the
waiver set forth in Section 2.1.3, is knowingly made in contemplation of
such benefits.
SECTION 2.1.2. RELEASE OF A DEBENTURE GUARANTEE.
(a) Any Debenture Guarantor shall be automatically and
unconditionally released and discharged from all of its obligations
under its Debenture Guarantee, and such Debenture Guarantee shall
terminate, at any such time that such Debenture Guarantor is released
and discharged from all of its obligations under all of its Guarantees
in respect of Bank Indebtedness, unless such release results from
payment under such Guarantee. Upon the delivery by the Company to the
Trustee of an Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel to the effect that the transaction giving rise to
such release of such Debenture Guarantee was made by the Company in
accordance with the provisions of this Indenture and the Securities, the
Trustee shall execute any documents reasonably required in order to
evidence such release and discharge of such Debenture Guarantor from its
obligations under and termination of its Debenture Guarantee.
(b) Upon the sale, exchange or transfer to any Person not
an Affiliate of the Company of all of the Capital Stock held by the
Company and its Subsidiaries in, or all or substantially all the assets
of, a Debenture Guarantor (which sale, exchange or transfer is not
prohibited by this Indenture), such Debenture Guarantor shall be
automatically and unconditionally released and discharged from all its
obligations under its Debenture Guarantee, and such Debenture Guarantee
shall terminate. Upon such occurrence, the Trustee shall execute any
documents reasonably required in order to evidence such release,
discharge and termination in respect of such Debenture Guarantee.
(c) Upon the release of any Debenture Guarantor from its
Debenture Guarantee pursuant to the provisions of the Indenture, each
other Debenture Guarantor
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not so released shall remain liable for the full amount of principal of,
and premium, if any, and interest on, the Securities as and to the
extent provided in this Section 2.1.
(d) Each Debenture Guarantee shall terminate and cease to
be of further effect upon (i) defeasance of the Company's obligations in
accordance with Section 1402 of the Indenture and (ii) satisfaction and
discharge of this Indenture in accordance with Section 401 of the
Indenture.
SECTION 2.1.3. WAIVER OF SUBROGATION.
Each Debenture Guarantor hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or
enforcement of the Company's obligations under the Securities of either
series and this Indenture or such Debenture Guarantor's obligations
under its Debenture Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of
any Holder of Securities of either series against the Company, whether
or not such claim, remedy or right arises in equity, or under contract,
statute or common law, until this Indenture is discharged and all of the
Securities of both series are discharged and paid in full. If any amount
shall be paid to any Debenture Guarantor in violation of the preceding
sentence and the Securities of the relevant series shall not have been
paid in full, such amount shall have been deemed to have been paid to
such Debenture Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities of such series, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon such Securities, whether matured or unmatured,
in accordance with the terms of this Indenture.
SECTION 2.1.4. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT REGARDING DISSOLUTION, ETC.
Upon any payment or distribution of assets of any
Debenture Guarantor referred to in this Section 2.1, the Trustee,
subject to the provisions of Section 601 of the Indenture, and the
Holders of Securities of either series shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to
the Trustee or to such Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the
holders of other Indebtedness of such Debenture Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Section 2.1;
provided that the foregoing shall apply only if such court has been
fully apprised of the provisions of this Section 2.1.
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SECTION 2.1.5. SECTION 2.1 APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting
hereunder, the term `Trustee' as used in this Section 2.1 shall in such
case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Section
2.1 in addition to or in place of the Trustee.
SECTION 2.1.6. NO SUSPENSION OF REMEDIES.
Nothing contained in this Section 2.1 shall limit the
right of the Trustee or the Holders of Securities of either series to
take any action to accelerate the maturity of such Securities pursuant
to Article Five of the Indenture or to pursue any rights or remedies
hereunder or under applicable law.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. TERMINATION.
The Debenture Guarantor's Debenture Guarantee shall terminate and
be of no further force or effect, and the Debenture Guarantor shall be released
and discharged from all obligations in respect of such Debenture Guarantee, as
and when provided in Section 2.1.2.
SECTION 3.2. PARTIES.
Nothing in this Supplemental Indenture is intended or shall be
construed to give any Person, other than the Holders and the Trustee, any legal
or equitable right, remedy or claim under or in respect of the Debenture
Guarantor's Debenture Guarantee or any provision contained herein or in Section
2.1.
SECTION 3.3. GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF
SUCH LAWS).
SECTION 3.4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE.
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Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.5. COUNTERPARTS.
The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute
one and the same agreement.
SECTION 3.6. HEADINGS.
The section headings herein are for convenience of reference only
and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
[THE COMPANY]
By:
-----------------------------------
Name:
Attest: Title:
--------------------------
[THE TRUSTEE]
By:
-----------------------------------
Name:
Attest: Title:
--------------------------
[NAME OF GUARANTOR]
By:
-----------------------------------
Name:
Attest: Title:
--------------------------
[Add signature block for any other
existing Debenture Xxxxxxxxx]
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