EXHIBIT 4.1
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INDENTURE
Dated as of June 20, 2002
Among
ADVANCED MEDICAL OPTICS, INC.,
each of the Guarantors named herein
and
THE BANK OF NEW YORK, as Trustee
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$200,000,000
9 1/4% Senior Subordinated Notes due 2010, Series A
9 1/4% Senior Subordinated Notes due 2010, Series B
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CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
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(S).310(a)(1).......................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10.
(b)............................................. 7.03, 7.10
(c)............................................. N.A.
(S).311(a)............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
(S).312(a)............................................. 2.05
(b)............................................. 13.03
(c)............................................. 13.03
(S).313(a)............................................. 7.06
(b)(1).......................................... 7.06
(b)(2).......................................... 7.06
(c)............................................. 7.06; 13.02
(d)............................................. 7.06
(S).314(a)............................................. 4.11; 4.12; 13.02
(b)............................................. N.A.
(c)(1).......................................... 13.04; 13.05
(c)(2).......................................... 13.04; 13.05
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 13.05
(f)............................................. N.A.
(S).315(a)............................................. 7.01(b)
(b)............................................. 7.05; 13.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
(S).316(a)(last sentence).............................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... 10.02
(b)............................................. 6.07
(c)............................................. 10.04
(S).317(a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
(S).318(a)............................................. 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
END
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...........................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act....................................30
SECTION 1.03. Rules of Construction................................................................30
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating......................................................................31
SECTION 2.02. Execution and Authentication.........................................................32
SECTION 2.03. Registrar and Paying Agent...........................................................33
SECTION 2.04. Paying Agent To Hold Assets in Trust.................................................33
SECTION 2.05. Holder Lists.........................................................................34
SECTION 2.06. Transfer and Exchange................................................................34
SECTION 2.07. Replacement Notes....................................................................35
SECTION 2.08. Outstanding Notes....................................................................35
SECTION 2.09. Treasury Notes.......................................................................36
SECTION 2.10. Temporary Notes......................................................................36
SECTION 2.11. Cancellation.........................................................................36
SECTION 2.12. Defaulted Interest...................................................................37
SECTION 2.13. CUSIP Number.........................................................................37
SECTION 2.14. Deposit of Moneys....................................................................38
SECTION 2.15. Book-Entry Provisions for Global Notes...............................................38
SECTION 2.16. Registration of Transfers and Exchanges..............................................39
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...................................................................44
SECTION 3.02. Selection of Notes To Be Redeemed....................................................44
SECTION 3.03. Notice of Redemption.................................................................45
SECTION 3.04. Effect of Notice of Redemption.......................................................46
SECTION 3.05. Deposit of Redemption Price..........................................................46
SECTION 3.06. Notes Redeemed in Part...............................................................47
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SECTION 3.07. Special Mandatory Redemption.........................................................47
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.....................................................................47
SECTION 4.02. Maintenance of Office or Agency......................................................48
SECTION 4.03. Transactions with Affiliates.........................................................48
SECTION 4.04. Limitation on Indebtedness...........................................................49
SECTION 4.05. Disposition of Proceeds of Asset Sales...............................................53
SECTION 4.06. Limitation on Restricted Payments....................................................54
SECTION 4.07. Corporate Existence..................................................................58
SECTION 4.08. Payment of Taxes and Other Claims....................................................58
SECTION 4.09. Notice of Defaults...................................................................59
SECTION 4.10. Maintenance of Properties............................................................59
SECTION 4.11. Compliance Certificate...............................................................59
SECTION 4.12. Provision of Financial Information...................................................60
SECTION 4.13. Waiver of Stay, Extension or Usury Laws..............................................60
SECTION 4.14. Offer to Purchase upon Change of Control.............................................61
SECTION 4.15. Limitation on Layering...............................................................62
SECTION 4.16. Limitations on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries......................................................................62
SECTION 4.17. Designation of Unrestricted Subsidiaries.............................................64
SECTION 4.18. Limitation on Liens..................................................................65
SECTION 4.19. Subsidiary Guarantees................................................................65
SECTION 4.20. Limitation on Activities of Allergan.................................................66
SECTION 4.21. Limitation on Use of Proceeds........................................................66
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.........................................................66
SECTION 5.02. Successor Corporation Substituted....................................................68
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default....................................................................68
SECTION 6.02. Acceleration.........................................................................70
SECTION 6.03. Other Remedies.......................................................................70
SECTION 6.04. Waiver of Past Default...............................................................71
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END
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SECTION 6.05. Control by Majority..................................................................71
SECTION 6.06. Limitation on Suits..................................................................72
SECTION 6.07. Rights of Holders To Receive Payment.................................................72
SECTION 6.08. Collection Suit by Trustee...........................................................72
SECTION 6.09. Trustee May File Proofs of Claim.....................................................73
SECTION 6.10. Priorities...........................................................................73
SECTION 6.11. Undertaking for Costs................................................................74
SECTION 6.12. Restoration of Rights and Remedies...................................................74
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee....................................................................74
SECTION 7.02. Rights of Trustee....................................................................76
SECTION 7.03. Individual Rights of Trustee.........................................................77
SECTION 7.04. Trustee's Disclaimer.................................................................78
SECTION 7.05. Notice of Defaults...................................................................78
SECTION 7.06. Reports by Trustee to Holders........................................................78
SECTION 7.07. Compensation and Indemnity...........................................................78
SECTION 7.08. Replacement of Trustee...............................................................80
SECTION 7.09. Successor Trustee by Merger, etc.....................................................81
SECTION 7.10. Eligibility; Disqualification........................................................81
SECTION 7.11. Preferential Collection of Claims Against Company....................................82
ARTICLE EIGHT
SUBORDINATION OF NOTES
SECTION 8.01. Notes Subordinated to Senior Indebtedness............................................82
SECTION 8.02. No Payment on Notes in Certain Circumstances.........................................82
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.......................................84
SECTION 8.04. Subrogation..........................................................................85
SECTION 8.05. Obligations of Company Unconditional.................................................85
SECTION 8.06. Notice to Trustee....................................................................86
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.......................87
SECTION 8.08. Trustee's Relation to Senior Indebtedness............................................87
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness....................................................88
SECTION 8.10. Holders Authorize Trustee To Effectuate Subordination of Notes.......................88
SECTION 8.11. This Article Not To Prevent Events of Default........................................88
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SECTION 8.12. Trustee's Compensation and Rights to Indemnification Not Prejudiced..................88
SECTION 8.13. No Waiver of Subordination Provisions................................................89
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for Holders;
Payments May Be Paid Prior to Dissolution.........................................89
SECTION 8.15. Acceleration of Notes................................................................89
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Company's and Guarantors' Obligations.............................90
SECTION 9.02. Application of Trust Money...........................................................91
SECTION 9.03. Repayment to Company.................................................................92
SECTION 9.04. Reinstatement........................................................................92
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders...........................................................93
SECTION 10.02. With Consent of Holders..............................................................93
SECTION 10.03. Compliance with Trust Indenture Act..................................................95
SECTION 10.04. Revocation and Effect of Consents....................................................95
SECTION 10.05. Notation on or Exchange of Notes.....................................................95
SECTION 10.06. Trustee To Sign Amendments, etc......................................................96
ARTICLE ELEVEN
GUARANTY
SECTION 11.01. Unconditional Guaranty...............................................................96
SECTION 11.02. Severability.........................................................................97
SECTION 11.03. Release of a Subsidiary Guarantor....................................................97
SECTION 11.04. Limitation of Subsidiary Guarantors' Liability.......................................98
SECTION 11.05. Contribution.........................................................................99
SECTION 11.06. Execution of Note Guarantee..........................................................99
SECTION 11.07. Subordination of Subrogation and Other Rights........................................99
SECTION 11.08. Release of the Note Guarantee of Allergan............................................99
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END
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Release of the Note Guarantee of Allergan
ARTICLE TWELVE
SUBORDINATION OF GUARANTY
SECTION 12.01. Guaranty Obligations Subordinated to Guarantor Senior Indebtedness..................100
SECTION 12.02. Payment Over of Proceeds upon Dissolution, etc......................................100
SECTION 12.03. Subrogation.........................................................................101
SECTION 12.04. Obligations of Guarantors Unconditional.............................................102
SECTION 12.05. Notice to Trustee...................................................................103
SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent......................104
SECTION 12.07. Trustee's Relation to Guarantor Senior Indebtedness.................................104
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or
Holders of Guarantor Senior Indebtedness.........................................104
SECTION 12.09. Holders Authorize Trustee To Effectuate Subordination of Guaranty...................105
SECTION 12.10. This Article Not To Prevent Events of Default.......................................105
SECTION 12.11. Trustee's Compensation Not Prejudiced...............................................105
SECTION 12.12. No Waiver of Guaranty Subordination Provisions......................................105
SECTION 12.13. Payments May Be Paid Prior to Dissolution...........................................106
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls........................................................106
SECTION 13.02. Notices.............................................................................106
SECTION 13.03. Communications by Holders with Other Holders........................................107
SECTION 13.04. Certificate and Opinion as to Conditions Precedent..................................107
SECTION 13.05. Statements Required in Certificate or Opinion.......................................108
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar...........................................108
SECTION 13.07. Governing Law, Submission to Jurisdiction and Time..................................108
SECTION 13.08. Agent for Service; Waiver of Immunities.............................................109
SECTION 13.09. No Recourse Against Others..........................................................110
SECTION 13.10. Successors..........................................................................110
SECTION 13.11. Counterpart Originals...............................................................110
SECTION 13.12. Severability........................................................................110
SECTION 13.13. No Adverse Interpretation of Other Agreements.......................................110
SECTION 13.14. Legal Holidays......................................................................111
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END
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SIGNATURES....................................................S-1
EXHIBIT A Form of Series A Note............................A-1
EXHIBIT B Form of Series B Note............................B-1
EXHIBIT C Form of Legends..................................C-1
EXHIBIT D Form of Transfer Certificate.....................D-1
EXHIBIT E Form of Certificate for Regulation S Transfers...E-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE dated as of June 20, 2002, between ADVANCED MEDICAL OPTICS,
INC., a Delaware corporation (the "Company"), each of the Guarantors named
herein, and The Bank of New York, a New York banking corporation, as trustee
(the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Business" has the meaning set forth in the definition of
"Related Business" below.
"Acquired Indebtedness" means Indebtedness of a Person (1) assumed in
connection with an Acquisition from such Person or (2) existing at the time such
Person becomes a Restricted Subsidiary or is consolidated with or merged into
the Company or any Restricted Subsidiary.
"Acquired Person" means, with respect to any specified Person, any
other Person which merges with or into or becomes a Subsidiary of such specified
Person.
"Acquisition" means (1) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated or amalgamated with or merged
into the Company or any Restricted Subsidiary or (2) any acquisition by the
Company or any Restricted Subsidiary of the assets of any Person which
constitute substantially all of an operating unit or line of business of such
Person or which is otherwise outside of the ordinary course of business.
"Additional Notes" has the meaning set forth in Section 2.02.
"Affiliate" of any specified person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect
to any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Affiliate Transaction" has the meaning set forth in Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Allergan" means Allergan, Inc., a Delaware corporation.
"Allergan Credit Facility" means the credit agreement dated as of May
10, 1996 and amended and restated as of March 24, 1998 and further amended prior
to the Issue Date by and among Allergan, as borrower and guarantor, the
subsidiaries of Allergan named therein as borrowers, the lenders party thereto
from time to time, Xxxxxx Guaranty Trust Company of New York, as Agent, and Bank
of America National Trust and Savings Association, as Co-Agent, as in effect on
the Issue Date.
"Alternate Offer" has the meaning set forth in Section 4.14.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease (that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale-leaseback transaction) to
any Person other than the Company or a Restricted Subsidiary, in one transaction
or a series of related transactions, of:
(1) any Equity Interest of any Restricted Subsidiary (other than
directors' qualifying shares);
(2) any material license, franchise or other authorization of the
Company or any Restricted Subsidiary;
(3) any assets of the Company or any Restricted Subsidiary which
constitute substantially all of an operating unit or line of business of
the Company or any Restricted Subsidiary; or
(4) any other property (including without limitation intellectual
property) or asset of the Company or any Restricted Subsidiary outside of
the ordinary course of business (including the receipt of proceeds paid on
account of the loss of or damage to any property or asset and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceedings but excluding the Equity Interests or other Investment in an
Unrestricted Subsidiary that was designated as an Unrestricted Subsidiary
after the Issue Date).
For the purposes of this definition, the term "Asset Sale" shall not
include:
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(A) any transaction consummated in compliance with Section 5.01 and the
creation of any Lien not prohibited by Section 4.18;
(B) sales of property or equipment that has become worn out, obsolete or
damaged or otherwise unsuitable for use in connection with the
business of the Company or any Restricted Subsidiary;
(C) any transaction consummated in compliance with Section 4.06;
(D) any transaction or series of related transactions involving assets
with a Fair Market Value not in excess of $5.0 million; and
(E) sales or other dispositions of Cash Equivalents, inventory,
receivables and other current assets in the ordinary course of
business.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code or any
similar United States federal or state law relating to, bankruptcy, insolvency,
receivership, winding up, liquidation, reorganization or relief of debtors or
the law of any other jurisdiction relating to bankruptcy, insolvency,
receivership, winding up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
"Board of Directors" of any Person means the board of directors,
managers, management committee or other body governing the management and
affairs of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person, or any duly authorized
committee thereof.
"Business Day" means a day that is not a Saturday, a Sunday or a day
on which (i) commercial banking institutions in New York, New York are
authorized or required by law to be closed or (ii) the New York Stock Exchange
is not open for trading.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a lease that
would at such time be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
"Cash Equivalents" means (1) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States or Canadian government or
issued by any agency or instrumentality thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date
of acquisition thereof; (2) marketable direct obligations issued by any state of
the United States of America or by, the District of Columbia maturing within one
year from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either S&P or Moody's;
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(3) commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1 from
S&P or a rating of at least P-1 from Moody's; (4) investments in time deposit
accounts, term deposit accounts, money market deposit accounts, certificates of
deposit or bankers' acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia having at the
date of acquisition thereof combined capital and surplus of not less than $500.0
million; (5) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered into
with any bank meeting the qualifications specified in clause (4) above; and (6)
investments in money market funds which invest substantially all their assets in
securities of the types described in any of clauses (1) through (5) above.
"Change of Control" means the occurrence of any of the following
events (whether or not approved by the Board of Directors of the Company):
(1) any Person beneficially owns (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, more than 35% of the total voting
power of the then outstanding Voting Equity Interests of the Company;
(2) the Company consolidates with, or merges with or into, another
Person (other than a Guarantor which is a Wholly Owned Restricted
Subsidiary) or the Company or the Restricted Subsidiaries sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of
the assets of the Company and the Restricted Subsidiaries (determined on a
consolidated basis) to any Person (other than the Company or a Wholly Owned
Restricted Subsidiary), other than any such transaction where immediately
after such transaction the Person or Persons that "beneficially owned" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) immediately
prior to such transaction, directly or indirectly, the then outstanding
Voting Equity Interests of the Company, "beneficially own or owns" (as so
determined), directly or indirectly, a majority of the total voting power
of the then outstanding Voting Equity Interests of the surviving or
transferee Person;
(3) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the shareholders of the Company was
approved by a vote of a ma-
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jority of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors of the Company then in office; or
(4) the adoption of a plan of liquidation or dissolution of the
Company.
"Change of Control Date" has the meaning set forth in Section 4.14.
"Clearstream" means Clearstream Bank, S.A.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Executive Chair of the Board, its Vice
Chair of the Board, its President, its Chief Financial Officer, a Vice President
or its Treasurer, and by its Controller, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of Consolidated EBITDA for the four
quarter period of the most recent four consecutive fiscal quarters for which
financial statements are available ending prior to the date of such
determination (the "Four Quarter Period") to (ii) Consolidated Interest Expense
for such Four Quarter Period; provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness or issued any Disqualified Equity Interests since the
beginning of such Four Quarter Period that remain outstanding on such date
of determination or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an
issuance of Disqualified Equity Interests, Consolidated EBITDA and
Consolidated Interest Expense for such Four Quarter Period shall be
calculated after giving effect on a pro forma basis to such Indebtedness or
such Disqualified Equity Interests as if such Indebtedness or such
Disqualified Equity Interests had been Incurred on the first day of such
Four Quarter Period and the discharge of any other Indebtedness or
Disqualified Equity Interests repaid, repurchased or otherwise discharged
with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such Four Quarter Period,
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased, retired or otherwise discharged (a "Discharge") any
Indebtedness or Dis-
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qualified Equity Interests since the beginning of such Four Quarter Period
that no longer remain outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio involves a Discharge of Indebtedness or Disqualified Equity
Interests, Consolidated EBITDA and Consolidated Interest Expense for such
Four Quarter Period shall be calculated after giving effect on a pro forma
basis to such Discharge of Indebtedness or Disqualified Equity Interests,
including with the proceeds of any new Indebtedness, as if such Discharge
(and Incurrence of new Indebtedness or Disqualified Equity Interests, if
any) had occurred on the first day of such Four Quarter Period,
(3) if since the beginning of such Four Quarter Period the Company or
any Restricted Subsidiary shall have disposed of any business or group of
assets in any asset sale (including by way of merger or otherwise), the
Consolidated EBITDA and Consolidated Interest Expense for such Four Quarter
Period shall be calculated after giving effect on a pro forma basis to such
disposition, including application of the proceeds therefrom, as if such
disposition had occurred on the first day of such Four Quarter Period,
(4) if since the beginning of such Four Quarter Period the Company or
any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person that becomes a
Restricted Subsidiary) or an Acquisition, including any Acquisition of
assets occurring in connection with a transaction causing a calculation to
be made hereunder, Consolidated EBITDA and Consolidated Interest Expense
for such Four Quarter Period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or Acquisition occurred on the first day of such Four Quarter
Period,
(5) if since the beginning of such Four Quarter Period any Person
(that subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning of such
Four Quarter Period) shall have engaged in any transaction that would have
required an adjustment pursuant to clause (1), (2), (3) or (4) above if
made by the Company or a Restricted Subsidiary during such Four Quarter
Period, Consolidated EBITDA and Consolidated Interest Expense for such Four
Quarter Period shall be calculated after giving pro forma effect thereto as
if such transaction occurred on the first day of such Four Quarter Period,
and
(6) for any Four Quarter Period including a fiscal quarter or quarters
ended prior to the Issue Date, the amount of Consolidated EBITDA for any
such fiscal quarter or quarters shall be calculated in a manner not
inconsistent in any material respect with the calculation of pro forma
amounts shown herein.
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For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting officer of
the Company (and such calculations may include such pro forma adjustments for
non-recurring items that the Company considers reasonable in order to reflect
the ongoing impact of any such transaction on the Company's results of
operations). If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any agreement under
which Hedging Obligations relating to interest are outstanding applicable to
such Indebtedness if such agreement under which such Hedging Obligations are
outstanding has a remaining term as at the date of determination in excess of 12
months). In making any determination of compliance with the Consolidated
Coverage Ratio under the Indenture, pro forma effect shall be given to the
provisions of clause (2) of the definition of "Consolidated Net Income" when
giving effect to the Incurrence of any Indebtedness and the application of the
proceeds therefrom.
"Consolidated EBITDA" means, for any period, the Consolidated Net
Income for such period, minus any non-cash item increasing Consolidated Net
Income during such period, plus the following to the extent deducted in
calculating such Consolidated Net Income:
(1) Consolidated Income Tax Expense for such period;
(2) Consolidated Interest Expense for such period;
(3) depreciation expense for such period;
(4) amortization expense for such period; and
(5) all other non-cash items reducing Consolidated Net Income for such
period (other than any non-cash item requiring an accrual or a reserve for
cash disbursements in any future period).
"Consolidated Income Tax Expense" means, with respect to the Company
for any period, the provision for federal, provincial, state, local and foreign
income taxes payable by the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the Company for
any period, without duplication, the sum of:
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(1) the interest expense of the Company and the Restricted
Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (a) the net cost under
Hedging Obligations relating to interest (including any amortizations of
discounts, but excluding any xxxx-to-market adjustments), (b) the interest
portion of any deferred payment obligation, (c) all commissions, discounts
and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (d) all capitalized interest and all accrued
interest and (e) any original issue discount on any Indebtedness; and
(2) the interest component of Capital Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Company and the Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP; and
(3) the product of (x) the amount of dividends and distributions paid
or accrued in respect of Disqualified Equity Interests of the Company
(other than dividends or distributions consisting solely of Qualified
Equity Interests) during such period as determined on a consolidated basis
in accordance with GAAP and (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated federal, provincial, state and local tax rate of the Company,
expressed as a decimal;
excluding, however, (i) any premiums, fees and expenses (and any amortization
thereof) payable in connection with the offering of the Notes or entering into
the Senior Credit Facility and (ii) the portion of interest expense at non
Wholly Owned Restricted Subsidiaries equal to the percentage of outstanding
Voting Equity Interests of such Restricted Subsidiary held by Persons other than
the Company, any Subsidiary of the Company or Affiliates of the Company or any
of its Subsidiaries.
"Consolidated Net Income" means, for any period, the consolidated net
income (loss) of the Company and the Restricted Subsidiaries for such period
determined in accordance with GAAP; provided, however, that there shall not be
included in calculating such Consolidated Net Income:
(1) any net income (loss) of any Person other than the Company or a
Restricted Subsidiary, except to the extent of the amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution;
(2) any net income (but not loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or indirectly,
precluding the pay-
-8-
ment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company to the extent of such
limitations or restrictions;
(3) any gain or loss realized upon the sale or other disposition of
any asset of the Company or the Restricted Subsidiaries (including pursuant
to any sale/leaseback transaction) that is not sold or otherwise disposed
of in the ordinary course of business and any gain or loss realized upon
the sale or other disposition of any Equity Interests of any Person;
(4) any extraordinary gain or loss;
(5) the cumulative effect of a change in accounting principles; or
(6) unrealized gains or losses in respect of Hedging Obligations
permitted by clause (6) of Section 4.04 as recorded on the statement of
operations in accordance with GAAP;
provided, however, that in the case of clauses (3), (4) and (6) such amount or
charge shall be net of any tax or tax benefit to the Company or any of its
consolidated Subsidiaries resulting therefrom.
"Contribution and Distribution Agreement" means the agreement between
Allergan and the Company governing the principal corporate transactions required
to effect Allergan's contribution of the optical medical device business to the
Company, the subsequent distribution of the Company's shares to Allergan's
stockholders and other agreements governing the relationship between Allergan
and the Company.
"Corporate Trust Office of the Trustee" means the office of the
Trustee at which at any particular time its corporate trust business will be
principally administered, which office as of the date hereof is located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Corporate Trust
Division-Corporate Finance Unit.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Defeasance Trust Payment" has the meaning set forth in Section 8.02.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Deposi-
-9-
tory by the Company, and their respective nominees and successors, which must be
a clearing agency registered under the Exchange Act.
"Designated Senior Indebtedness" means (1) any Indebtedness
outstanding under the Senior Credit Facility and any Hedging Obligations under
hedge agreements entered into with lenders or former lenders thereunder and (2)
any other Senior Indebtedness which, at the time of determination, has an
aggregate principal amount outstanding, together with any commitments to lend
additional amounts, of at least $25.0 million, if the instrument governing such
Senior Indebtedness expressly states that such Indebtedness is "Designated
Senior Indebtedness" for purposes of this Indenture and a Board Resolution
setting forth such designation by the Company has been filed with the Trustee.
"Designation" has the meaning set forth in Section 4.17.
"Designation Amount" has the meaning set forth in the definition of
"Investment" below.
"Discharge" has the meaning set forth in the definition of
"Consolidated Coverage Ratio" above.
"Disposition" means, with respect to any Person, any merger,
consolidation, amalgamation or other business combination involving such Person
(whether or not such Person is the Surviving Person) or the sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
such Person's assets.
"Disqualified Equity Interest" means any Equity Interest which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable, at the option of the holder thereof, in
whole or in part, or exchangeable into Indebtedness on or prior to the maturity
date of the Notes; provided, however, that any Equity Interest that would not
constitute Disqualified Equity Interests but for provisions thereof giving
holders thereof the right to require the issuer to purchase or redeem such
Equity Interests upon the occurrence of an "asset sale" or "change of control"
occurring prior to the maturity date of the Notes shall not constitute
Disqualified Equity Interests if (1) the "asset sale" or "change of control"
provisions applicable to such Equity Interest are not more favorable in any
material respect to the holders of such Equity Interests than the terms
applicable to the Notes and described in Sections 4.05 and 4.14 and (2) any such
requirement only becomes operative after compliance with such terms applicable
to the Notes, including the purchase of any Notes tendered in respect of any
Offer.
-10-
"Distribution" means the distribution of stock certificates
representing the common stock of the Company to holders of the common stock of
Allergan in accordance with the Spin-Off Documents.
"Distribution Date" means the date on or prior to July 31, 2002 on
which the Trustee has received an Officers' Certificate certifying that (i) the
Distribution has been consummated substantially in accordance with the Spin-Off
Documents and (ii) none of the Spin-Off Documents has been modified in a manner
materially adverse to the holders of the Notes since the date on which forms of
such documents were last provided to the Initial Purchasers prior to the Issue
Date.
"Domestic Subsidiary" means a direct or indirect Restricted Subsidiary
that is incorporated under the laws of any State of the United States or Puerto
Rico or the District of Columbia other than any such Subsidiary that is a direct
or indirect Subsidiary of a Foreign Subsidiary.
"Employee Matters Agreement" means the agreement between Allergan and
the Company pursuant to which the liabilities and responsibilities relating to
employee compensation, benefit plans and programs and other related matters
shall be allocated between Allergan and the Company.
"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 partnership interests, whether general or limited, in
such Person, including any Preferred Equity Interests and any right or interest
which is classified as equity in accordance with GAAP.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning set forth in Section 6.01.
"Event of Failure" has the meaning set forth in Section 3.07.
"Excess" has the meaning set forth in Section 4.05. "Exchange Act"
means the United States Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Exchange Notes" means the 9 1/4% Senior Subordinated Notes due 2010,
Series B to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement.
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"Existing Indebtedness" means any Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Distribution Date and shown on the
Company's pro forma balance sheet as of March 29, 2002, or incurred thereafter
in the ordinary course of business, until such amounts are repaid; provided,
however, that Existing Indebtedness shall not include Indebtedness repurchased
or repaid with the proceeds of the offering of the Notes and shall not include
Indebtedness for money borrowed.
"Expiration Date" has the meaning set forth in the definition of
"Offer to Purchase" below.
"Fair Market Value" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; provided, however, that the Fair Market
Value of any such asset or assets shall be determined conclusively by the Board
of Directors of the Company acting in good faith, and shall be evidenced by a
Board Resolution delivered to the Trustee.
"Foreign Subsidiary" means a direct or indirect Subsidiary of the
Company that is not a Domestic Subsidiary.
"Four Quarter Period" has the meaning set forth in the definition of
"Consolidated Coverage Ratio" above.
"Funding Guarantor" shall have the meaning set forth in Section 11.05.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States at such time and which are
consistently applied.
"Global Notes" means one or more Regulation S Global Notes and 144A
Global Notes.
"guarantee" means, as applied to any obligation, (1) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (2) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
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"Guaranteed Indebtedness" has the meaning set forth in Section 4.19.
"Guarantors" means each of :
(1) AMO Holdings, LLC, a Delaware limited liability company;
(2) any other Subsidiary of the Company that executes a Note Guarantee
in accordance with the provisions of this Indenture; and
(3) Allergan (but only until the Distribution Date);
and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (1) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (2) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates and (3) foreign currency or commodity hedge, swap, exchange or similar
protection agreements (agreements referred to in this definition being referred
to herein as "Hedging Agreements").
"Holder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Acquired Person or any of its
Subsidiaries existing at the time such Acquired Person becomes a Restricted
Subsidiary (or is merged into or consolidated with the Company or any Restricted
Subsidiary), whether or not such Indebtedness was Incurred in connection with,
as a result of, or in contemplation of, such Acquired Person becoming a
Restricted Subsidiary (or being merged into or consolidated or amalgamated with
the Company or any Restricted Subsidiary), shall be deemed Incurred at the time
any such Acquired Person becomes a Restricted Subsidiary or merges into or
consolidates or amalgamates with the Company or any Restricted Subsidiary. The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Equity Interests in the form of additional shares of the same class of
Disqualified Equity Interests, will not be deemed to be an Incurrence of
Indebtedness or an issuance of Disqualified Equity Interests; provided, however,
in each such case, that the amount thereof is included in the Consolidated
Interest Expense as accrued.
-13-
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses by such
Person;
(3) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person;
(4) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding (A) earnout or other
similar obligations until such time as the amount of such obligation is
capable of being determined and its payment is probable, (B) trade accounts
payable incurred in the ordinary course of business and payable in
accordance with industry practices, or (C) other accrued liabilities
arising in the ordinary course of business which are not overdue or which
are being contested in good faith);
(5) every Capital Lease Obligation of such Person, including, without
limitation, from sale-leaseback transactions;
(6) every net obligation payable under Hedging Agreements of such
Person;
(7) every obligation of the type referred to in clauses (1) through
(6) above of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible or
liable for, directly or indirectly, as obligor, guarantor or otherwise; and
(8) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (1) through (7) above.
Indebtedness:
(A) shall never be calculated taking into account any cash and cash
equivalents held by such Person;
(B) shall not include obligations of any Person (1) arising from the
honoring by a bank or other financial institution of a check, draft or
similar instrument inad-
-14-
vertently drawn against insufficient funds in the ordinary course of
business, provided that such obligations are extinguished within 30
days of their Incurrence, (2) resulting from the endorsement of
negotiable instruments for collection in the ordinary course of
business and consistent with past business practices and (3) under
stand-by letters of credit to the extent collateralized by cash or
Cash Equivalents;
(C) shall include the liquidation preference and any mandatory redemption
payment obligations in respect of any Disqualified Equity Interests of
the Company or any Preferred Equity Interest of any Restricted
Subsidiary;
(D) shall not include any liability for federal, provincial, state, local
or other taxes; and
(E) shall not include obligations under performance bonds, performance
guarantees, surety bonds and appeal bonds, letters of credit or
similar obligations, incurred in the ordinary course of business.
In addition, for the purpose of avoiding duplication in calculating
the outstanding principal amount of Indebtedness for purposes of Section 4.04,
Indebtedness arising solely by reason of the existence of a Lien permitted under
Section 4.18 to secure other Indebtedness permitted to be Incurred under Section
4.04 will not be considered to be incremental Indebtedness.
"Indemnitees" has the meaning set forth in Section 7.07.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto), as amended or supplemented from time to time
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Independent Financial Advisor" means a nationally recognized
accounting, appraisal, investment banking firm or consultant in the United
States that is, in the judgment of the Company's Board of Directors, independent
and qualified to perform the task for which it is to be engaged.
"Initial Notes" means the 9 1/4% Senior Subordinated Notes due 2010,
of the Company.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Banc of America Securities LLC, ABN AMRO Incorporated and Banc One
Capital Markets, Inc.
-15-
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"interest" means, with respect to the Notes, the sum of any cash
interest and any Liquidated Damages on the Notes.
"Interest Payment Date" means each semiannual interest payment date on
January 15 and July 15 of each year, commencing January 15, 2003.
"Interest Record Date" for the interest payable on any Interest
Payment Date (except a date for payment of defaulted interest) means the January
or July 1, (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Investment" means, with respect to any Person, any direct or indirect
loan, advance, guarantee or other extension of credit (in each case other than
in connection with an acquisition of property or assets that does not otherwise
constitute an Investment) or capital contribution to (by means of transfers of
cash or other property or assets to others or payments for property or services
for the account or use of others, or otherwise), or purchase or acquisition of
capital stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other Person. The amount of any Investment shall be
the original cost of such Investment, plus the cost of all additions thereto,
and minus the amount of any portion of such Investment repaid to such Person in
cash as a repayment of principal or a return of capital, as the case may be, but
without any other adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. In determining the
amount of any Investment involving a transfer of any property or asset other
than cash, such property shall be valued at its Fair Market Value at the time of
such transfer. For purposes of Sections 4.06 and 4.17, Investments shall be
deemed to be made in an amount (the "Designation Amount") equal to the Fair
Market Value of assets (net of liabilities) of a Restricted Subsidiary at the
time of Designation. If the Company or any Restricted Subsidiary sells or
otherwise disposes of any Voting Equity Interests of any direct or indirect
Restricted Subsidiary such that, after giving effect to such sale or
disposition, the Company no longer owns, directly or indirectly, a majority of
the outstanding Voting Equity Interests of such Restricted Subsidiary, the
Company will be deemed to have made an Investment on the date of such sale or
disposition equal to the Fair Market Value of the Equity Interest of such
Restricted Subsidiary that after giving effect to such sale or disposition is
owned, directly or indirectly, by the Company.
"Issue Date" means the original issue date of the Notes.
-16-
"Lien" means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, and any
agreement to give any security interest but excluding any lease which does not
secure Indebtedness).
"Liquidated Damages" has the meaning provided in the Registration
Rights Agreement.
"Losses" has the meaning set forth in Section 7.07.
"Manufacturing Agreement" means the agreement between Allergan and the
Company pursuant to which Allergan will manufacture contact lens care products
and one of the Company's ophthalmic surgical products.
"Maturity Date" means July 15, 2010.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
such rating agency business thereof.
"Net Cash Proceeds" means the aggregate proceeds in the form of cash
or Cash Equivalents received by the Company or any Restricted Subsidiary in
respect of any Asset Sale, including all cash or Cash Equivalents received upon
any sale, liquidation or other exchange of proceeds of Asset Sales received in a
form other than cash or Cash Equivalents, net of:
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof;
(2) taxes paid or payable as a result thereof;
(3) amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that were the subject of such
Asset Sale; and
(4) amounts deemed, in good faith, appropriate by the Board of
Directors of the Company to be provided as a reserve, in accordance with
GAAP, against any liabilities associated with such assets which are the
subject of such Asset Sale (provided that the amount of any such reserves
shall be deemed to constitute Net Cash Proceeds at the time such reserves
shall have been released or are not otherwise required to be retained as a
reserve).
"Net Proceeds Offer" has the meaning set forth in Section 4.05.
-17-
"Note Guarantee" means the subordinated guarantee by each Guarantor of
the Company's payment obligations under this Indenture and the Notes, executed
pursuant to this Indenture.
"Notes" means, collectively, the Initial Notes, the Additional Notes,
the Private Exchange Notes and the Unrestricted Notes treated as a single class
of securities, as amended or supplemented from time to time in accordance with
the terms of this Indenture.
"Obligations" means any principal, interest (including, in the case of
Senior Indebtedness, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Offer" has the meaning set forth in the definition of "Offer to
Purchase" below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Company by first-class mail, postage prepaid, to each Holder at
his address appearing in the register for the Notes on the date of the Offer
offering to purchase up to the principal amount of Notes specified in such Offer
at the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase, which shall
be not less than 20 Business Days nor more than 60 days after the date of such
Offer, and a settlement date (the "Purchase Date") for purchase of Notes to
occur no later than five Business Days after the Expiration Date. The Company
shall notify the Trustee at least 5 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain all the information required by
applicable law to be included therein. The Offer shall also contain or
incorporate by reference information concerning the business of the Company and
its Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to Purchase,
which at a minimum will include:
(1) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the
Trustee pursuant to this Indenture (which requirements may be satisfied by
delivery of such documents together with the Offer);
(2) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred
to in clause (1)
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(including a description of the events requiring the Company to make the
Offer to Purchase);
(3) if applicable, appropriate pro forma financial information
concerning the Offer to Purchase and the events requiring the Company to
make the Offer to Purchase; and
(4) any other information required by applicable law to be included
therein.
The Offer shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer
shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Notes offered to
be purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such amount has been determined
pursuant to the Section of this Indenture requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note being accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender all or any portion of a Note
pursuant to the Offer to Purchase will be required to surrender such Note
at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Note
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being, if the Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing with signature guaranteed);
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder tendered, the certificate number of
the Note the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and (b)
if Notes in an aggregate principal amount in excess of the Purchase Amount
are tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in denominations of $1,000 principal
amount or integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means the Chairman, any Vice Chairman, the President, any
Vice President, the Chief Financial Officer, the Treasurer or the Secretary of
the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by one Officer and any Assistant Treasurer or Assistant Secretary of the Company
and which complies with the provisions of this Indenture.
"144A Global Note" means a permanent global Note in registered form
representing the aggregate principal amount of Notes sold in reliance on Rule
144A.
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"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Optional Redemption" has the meaning set forth in Section 3.01(a).
"Other Business" has the meaning set forth in the definition of
"Related Business" below.
"Pari Passu Debt" means Indebtedness of the Company that neither
constitutes Senior Indebtedness nor Subordinated Indebtedness.
"Participants" has the meaning set forth in Section 2.15.
"Paying Agent" has the meaning set forth in Section 2.03.
"Payment Blockage Notice" has the meaning set forth in Section
8.02(a).
"Payment Blockage Period" has the meaning set forth in Section
8.02(a).
"Permitted Indebtedness" has the meaning set forth in the second
paragraph of Section 4.04.
"Permitted Investments" means:
(1) Investments in Cash Equivalents;
(2) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and workers' compensation, performance and
other similar deposits;
(3) loans and advances to employees made in the ordinary course of
business not to exceed $2.5 million in the aggregate at any one time
outstanding;
(4) Hedging Obligations; provided, however, that such Hedging
Obligations are entered into for genuine hedging purposes to protect the
Company and/or the Restricted Subsidiaries against interest rate, currency
exchange rate, commodity prices or similar fluctuations and not for
speculative purposes;
(5) any non-cash consideration received as a result of Asset Sales in
compliance with Section 4.05 or in satisfaction of judgments or claims and
any "earn out" or similar right permitted under Section 4.05;
-21-
(6) any Investment to the extent that the consideration therefor
consists of Qualified Equity Interests of the Company;
(7) accounts receivable acquired in the ordinary course of business or
Investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(8) Investments in the Notes;
(9) an Investment in an Unrestricted Subsidiary consisting solely of
an Investment in another Unrestricted Subsidiary;
(10) an Investment that replaces, refinances or refunds an Investment
existing on the Issue Date, provided that such Investment is in an amount
that does not exceed the amount replaced, refinanced or refunded and is
made in the same Person as the Investment replaced, refinanced or refunded;
and
(11) other Investments not to exceed $15.0 million at any one time
outstanding.
"Permitted Junior Securities" means any securities of the Company or
any other Person that are:
(1) equity securities without special covenants; or
(2) subordinated in right of payment to all Senior Indebtedness that
may at the time be outstanding, to substantially the same extent as, or to
a greater extent than, the Notes are subordinated as provided in this
Indenture, and as to which (a) the rate of interest on such securities
shall not exceed the effective rate of interest on the Notes on the date of
this Indenture, (b) such securities shall not be entitled to the benefits
of covenants or defaults materially more beneficial to the holders of such
securities than those in effect with respect to the Notes on the date of
this Indenture and (c) such securities shall not provide for amortization
(including sinking fund and mandatory prepayment provisions) commencing
prior to the date six months following the final scheduled maturity date of
the Senior Indebtedness (as modified by the plan of reorganization or
readjustment pursuant to which such securities are issued).
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"Permitted Liens" means:
(1) Liens on property of a Person existing at the time such Person is
merged into or consolidated or amalgamated with the Company or any
Restricted Subsidiary; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
attach to any property or assets of the Company or any Restricted
Subsidiary other than the property or assets subject to the Liens prior to
such merger or consolidation and the proceeds thereof;
(2) Liens existing on the Issue Date;
(3) Liens securing the Notes;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens to secure any refinancings, renewals, extensions,
modifications or replacements (collectively, "refinancing") (or successive
refinancings), in whole or in part, of any Indebtedness secured by Liens
referred to in the clauses (1) through (4) above so long as such Lien does
not extend to any other property (other than improvements thereto);
(6) Liens securing performance bonds, performance guarantees, surety
bonds and appeal bonds, letters of credit or similar obligations entered
into in the ordinary course of business and consistent with past business
practice; and
(7) Liens on and pledges of the Equity Interests of any Unrestricted
Subsidiary securing any Indebtedness of such Unrestricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, limited
liability limited partnership, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Physical Notes" means one or more certificated Notes in registered
form.
"Post-Petition Interest" means, with respect to any Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding.
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"Preferred Equity Interest," in any Person, means an Equity Interest
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
Equity Interests of any other class in such Person.
"Private Exchange Notes" has the meaning set forth in Section 1 of the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Initial Notes in the form of either the legend set forth on Exhibit C under the
heading "Form of Legend for 144A Notes" or the legend set forth on Exhibit C
under the heading "Form of Legend for Regulation S Notes."
"Process Agent" has the meaning set forth in Section 13.08.
"Public Equity Offering" means any primary public offering of common
stock of the Company pursuant to an effective registration statement under the
Securities Act and resulting in net proceeds to the Company of at least $35.0
million.
"Purchase Agreement" means the Purchase Agreement dated as of February
28, 2002 by and among the Company and the Initial Purchasers.
"Purchase Amount" has the meaning set forth in the definition of
"Offer to Purchase" above.
"Purchase Date" has the meaning set forth in the definition of "Offer
to Purchase" above.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property;
provided, however, that the aggregate principal amount of such Indebtedness does
not exceed the lesser of the Fair Market Value of such property or such purchase
price or cost, including any refinancing of such Indebtedness that does not
increase the aggregate principal amount (or accreted amount, if less) thereof as
of the date of refinancing.
"Purchase Price" has the meaning set forth in the definition of "Offer
to Purchase" above.
"Qualified Equity Interest" in any Person means any Equity Interest in
such Person other than any Disqualified Equity Interest.
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"QIB" means a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"redemption price" when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Note annexed hereto as Exhibit A.
"refinancing" has the meaning set forth in Section 4.04.
"Registrar" has the meaning set forth in Section 2.03.
"Registration" means a registered exchange offer for the Notes by the
Company or other registration of the Notes under the Securities Act pursuant to
and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement to be dated as of the Issue Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Regulation S.
"Related Business" means (1) those businesses in which the Company or
any of the Restricted Subsidiaries is engaged on the date of this Indenture, or
that are reasonably related, ancillary, incidental or complementary thereto and
(2) any business (the "Other Business") which forms a part of a business (the
"Acquired Business") which is acquired by the Company or any of the Restricted
Subsidiaries if the primary intent of the Company or such Restricted Subsidiary
was to acquire that portion of the Acquired Business which meets the
requirements of clause (1) of this definition.
"Restricted Global Note" means a Global Note that is a Restricted
Note.
"Restricted Note" has the meaning set forth in Rule 144(a)(3) under
the Securities Act for the term "restricted securities"; provided, however, that
the Trustee shall be entitled to request and conclusively rely upon an Opinion
of Counsel with respect to whether any Note is a Restricted Note.
"Restricted Payment" has the meaning set forth in Section 4.06.
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"Restricted Subsidiary" means any Subsidiary of the Company other than
(i) a Subsidiary of the Company that is designated as an Unrestricted Subsidiary
on the Issue Date and (ii) any Subsidiary of the Company that has been
designated by the Board of Directors of the Company subsequent to the Issue
Date, by a resolution of the Board of Directors of the Company delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to Section 4.17. Any designation
of a Subsidiary of the Company as an Unrestricted Subsidiary may be revoked by a
resolution of the Board of Directors of the Company delivered to the Trustee,
subject to the provisions of Section 4.17.
"Revocation" has the meaning set forth in Section 4.17.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc. or any successor to such rating agency business thereof.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facility" means the Credit Agreement, dated on or about
June 21, 2002 by and among the Company, as borrower, the guarantors party
thereto from time to time, the lenders party thereto from time to time, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as Lead Arranger and Banc of America
Securities LLC as Lead Arranger, including any deferrals, renewals, extensions,
replacements (which need not be in lieu of a corresponding reduction in
commitments under the aforementioned credit agreement), refinancings or
refundings thereof, or amendments, modifications or supplements thereto and any
agreement providing therefor (including any restatements thereof and any
increases in the amount of commitments thereunder), whether by or with the same
or any other lender, creditor, or any one or more group of lenders or group of
creditors (whether or not including any or all of the financial institutions
party to the aforementioned credit agreements), and including related notes,
guarantee and note agreements and other instruments and agreements executed in
connection therewith.
"Senior Indebtedness" means, with respect to any Person at any date,
(1) all Obligations of such Person under the Senior Credit Facility;
(2) all Hedging Obligations of such Person; and
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(3) Obligations of such Person, in connection with all other
Indebtedness of the Company unless the instrument under which such
Indebtedness is Incurred expressly provides that such Indebtedness is not
senior or superior in right of payment to the Notes, and all renewals,
extensions, modifications, amendments or refinancings thereof.
Notwithstanding the foregoing, Senior Indebtedness shall not include
(a) to the extent that it may constitute Indebtedness, any obligation for
federal, state, local or other taxes; (b) any Indebtedness among or between the
Company and any Subsidiary of the Company, unless and for so long as such
Indebtedness has been pledged to secure Obligations to a third party; (c) to the
extent that it may constitute Indebtedness, any Obligation in respect of any
trade payable Incurred for the purchase of goods or materials, or for services
obtained, in the ordinary course of business; (d) Indebtedness evidenced by the
Notes; (e) Indebtedness of such Person that is expressly subordinate or junior
in right of payment to any other Indebtedness of such Person; (f) to the extent
that it may constitute Indebtedness, any Obligation owing under leases (other
than Capital Lease Obligations) or management agreements; and (g) any obligation
that by operation of law is subordinate to any general unsecured obligations of
such Person.
"Significant Restricted Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its Subsidiaries,
(i) for the most recent fiscal year of the Company, accounted for more than 10%
of the consolidated revenues of the Company and its Restricted Subsidiaries or
(ii) as of the end of such fiscal year, owned more than 10% of the consolidated
assets of the Company and its Restricted Subsidiaries, all as set forth on the
most recently available consolidated financial statements of the Company for
such fiscal year.
"Special Mandatory Redemption" has the meaning set forth in Section
3.07.
"Specified Indebtedness" means any Indebtedness of the Company and its
Restricted Subsidiaries other than any Indebtedness constituting Senior
Indebtedness or constituting Indebtedness of a Restricted Subsidiary that is not
a Guarantor.
"Spin-Off Documents" means the Contribution and Distribution
Agreement, the Transitional Services Agreement, the Manufacturing Agreement, the
Employee Matters Agreement and the Tax Sharing Agreement, in each case entered
into as of the Distribution Date between the Company and Allergan.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
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"Subordinated Indebtedness" means any Indebtedness of the Company
which is expressly subordinated in right of payment to the Notes.
"Subsidiary" means, with respect to any Person, (a) any corporation of
which the outstanding Voting Equity Interests having at least a majority of the
votes entitled to be cast in the election of directors shall at the time be
owned, directly or indirectly, by such Person, or (b) any other Person of which
at least a majority of Voting Equity Interests are at the time, directly or
indirectly, owned by such first named Person.
"Subsidiary Guarantor" means any Guarantor other than Holdings.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Tax Sharing Agreement" means the agreement between Allergan and the
Company governing the respective rights, responsibilities and obligations of
Allergan and the Company after the Distribution with respect to taxes for any
tax period ending before, on or after the Distribution.
"TIA" means the United States Trust Indenture Act of 1939 (15 U.S.
Code (S)(S) 77aaa-77bbbb), as amended, as in effect on the date of this
Indenture (except as provided in Section 10.03), until such time as this
Indenture is qualified under such act, and thereafter as in effect on the date
which this Indenture is qualified under such act.
"Total Assets" means, with respect to any Person, as of any date, the
consolidated total assets of such Person, as determined in accordance with GAAP.
"Transitional Services Agreement" means the agreement between Allergan
and the Company pursuant to which Allergan and the Company will provide each
other certain transitional services.
"Trust Officer" means any officer of the Trustee within the Corporate
Trust Division - Corporate Finance Unit of the Trustee (or any similar successor
unit or department of the Trustee) located at the Corporate Trust Office of the
Trustee who has direct responsibility for the administration of this Indenture
and, for the purposes of Section 7.01(c)(2) and Section 7.05 shall also include
any officer of the Trustee to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
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"United States Government Obligations" means direct non-callable
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged.
"Unrestricted Global Note" means a Global Note that is an Unrestricted
Note.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the legends set forth in Exhibit C hereto under the heading
"Form of Legend for 144A Notes" and "Form of Legend for Regulation S Notes,"
including, without limitation, the Exchange Notes and any Notes registered under
the Securities Act pursuant to and in accordance with the Registration Rights
Agreement.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 4.17, in each case
until such time as any such designation may be revoked by a resolution of the
Board of Directors of the Company delivered to the Trustee, subject to the
provisions of such Section.
"Unutilized Net Cash Proceeds" has the meaning set forth in Section
4.05.
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Equity Interests" means Equity Interests in a corporation or
other Person with voting power under ordinary circumstances entitling the
holders thereof to elect the Board of Directors or other governing body of such
corporation or Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness (including Disqualified Equity Interests) at any date, the number
of years obtained by dividing (1) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment, sinking fund,
serial maturity or other required scheduled payment of principal, dividends,
including payment at final maturity, in respect thereof, by (B) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment, by (2) the then outstanding aggregate principal
amount of such Indebtedness (including Disqualified Equity Interests).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
all of the outstanding Voting Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
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SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, a Guarantor
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to "dollars," and "$" are to United States dollars; and
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(8) the words "include," "included" and "including" as used herein are
deemed in each case to be followed by the phrase "without limitation."
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted hereby, which is hereby incorporated in and expressly made
a part of this Indenture. The Exchange Notes and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit B hereto,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted hereby, which is hereby incorporated in and
expressly made a part of this Indenture. The Notes may have notations, legends
or endorsements (including the Note Guarantee) required by law, stock exchange
rule or usage, any organizational document or governing instrument, or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. The Company shall approve the form of
the Notes and any notation, legend or endorsement (including the Note Guarantee)
on them. Each Note shall be dated the date of its authentication.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more Rule 144A Global Notes bearing the legends
set forth on Exhibit C hereto under the heading "Form of Legend for 144A Notes"
and "Form of Legend for Global Notes" and Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of one or more Regulation S
Global Notes bearing the legends set forth as on Exhibit C hereto under the
heading "Form of Legend for Regulation S Notes" and "Form of Legend for Global
Notes," each substantially in the form set forth in Exhibit A hereto, deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided with the Guarantees of
the Guarantors endorsed thereon. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream (or any
successor document setting forth the procedures, terms and/or conditions of such
Euroclear and Clearstream, as ap-
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plicable) shall be applicable to transfers of beneficial interests in the
Regulation S Global Note that are held by participants through Euroclear or
Clearstream, as applicable.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign the
Notes for the Company by manual or facsimile signature, or one Officer shall
sign the Notes for the Company by manual or facsimile signature and one Officer
or an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Officer's
signature.
If an Officer or an Assistant Secretary whose signature is on a Note
was an Officer or an Assistant Secretary, as the case may be, at the time of
such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue in
an aggregate principal amount not to exceed $200,000,000, (ii) Private Exchange
Notes from time to time only in exchange for a like principal amount of Initial
Notes and (iii) Unrestricted Notes from time to time in exchange for (A) a like
principal amount of Initial Notes or (B) a like principal amount of Private
Exchange Notes, in each case upon a written order of the Company in the form of
an Officers' Certificate, which Officers' Certificate shall comply with Section
13.04. In addition, each such Officers' Certificate shall include the statements
in Section 13.05. Each such written order shall specify the amount of Notes to
be authenticated and the date on which the Notes are to be authenticated,
whether the Notes are to be Initial Notes, Private Exchange Notes or
Unrestricted Notes and whether the Notes are to be issued as Physical Notes or
Global Notes and such other information as the Trustee may reasonably request.
Additional amounts may be issued in one or more series from time to time (the
"Additional Notes"), subject to Section 4.04, which Additional Notes shall be
authenticated by the Trustee upon receipt of a Company Order.
All Notes issued under this Indenture, whether issued on the Issue
Date or subsequent to the Issue Date, shall vote and consent together on all
matters (as to which any of such Notes may vote or consent) as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Notes. Unless otherwise provided in the
appointment, an authenti-
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cating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent shall have the same rights
as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. No service charge
will be made for any registration of transfer or exchange of the Notes;
provided, however, that the Company may require payment of a sum sufficient to
cover any transfer tax or other similar governmental charges payable in
connection therewith.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Notes may be presented or surrendered
for registration of transfer or for exchange (the "Registrar"), (b) Notes may be
presented or surrendered for payment (the "Paying Agent") and (c) notices and
demands in respect of the Notes and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company, upon notice to the Trustee, may appoint one or more co-Registrars and
one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. Except as provided herein, the Company or any Guarantor
may act as Paying Agent, Registrar or co-Registrar.
If the Company shall enter into an agency agreement with any Agent not
a party to this Indenture, such agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or premium, if any, or interest on, the Notes, and shall notify
the Trustee of any Default by the Company in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent,
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require such Paying Agent to distribute forthwith all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent (if other than the Company), the Paying Agent shall have no further
liability for such assets. If the Company, any Guarantor or any of its
Affiliates acts as Paying Agent, it shall, on or before each due date of the
principal of or interest on the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may reasonably request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Notes are
presented to the Registrar or a co-Registrar with a request from a Holder of
such Notes to register the transfer of such Notes or to exchange such Notes for
an equal principal amount of Notes of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate and deliver Notes at
the Registrar's or co-Registrar's written request. No service charge shall be
made for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
other governmental charge payable upon exchanges or transfers pursuant to
Sections 2.10, 3.06, 4.05, 4.14, or 10.05, in which events the Company shall be
responsible for the payment of such transfer taxes or other governmental
charges, as applicable). The Registrar or co-Registrar shall not be required to
register the transfer or exchange of any Note (i) during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Notes and ending at the close of business on the day of such mail-
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ing and (ii) selected for redemption in whole or in part pursuant to Article
Three hereof, except the unredeemed portion of any Note being redeemed in part.
Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee and any Agent of the Company shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and none of the Company, the
Trustee or any such Agent shall be affected by notice to the contrary. Any
Holder of a beneficial interest in a Global Note shall, by acceptance of such
beneficial interest in a Global Note, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry system
maintained by the Depository (or its agent), and that ownership of a beneficial
interest in a Global Note shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements for replacement of Notes are met. If required by the
Company or the Trustee, such Holder must provide an indemnity bond or other
indemnity sufficient to protect the Company, the Trustee and any Agent from any
loss which any of them may suffer if a Note is replaced. The Company may charge
such Holder for its reasonable out-of-pocket expenses in replacing a Note,
including reasonable fees and expenses of counsel.
Every replacement Note is an additional obligation of the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Note does not cease to be outstanding because the
Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity Date the
Paying Agent holds money sufficient to pay all of the principal and interest due
on the Notes payable on that date, and is not prohibited from paying such money
to the Holders pursuant to the
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terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, the Guarantors or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be fully protected in relying on any such direction, waiver or consent,
only Notes that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
The Company shall promptly notify the Trustee in writing when it, any
Guarantor or any of its or their respective Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes so repurchased
or otherwise acquired.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate and deliver temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate upon receipt of a written order of the Company pursuant to
Section 2.02 definitive Notes in exchange for temporary Notes. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes to the Registrar or
co-Registrar without charge to the Holder. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel, and at the written direction of the
Company, dispose of and deliver evidence of such disposal of all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for
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cancellation; provided, however, that the Trustee shall not be required to
destroy certificates. If the Company or any Guarantor shall acquire any of the
Notes, such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11. All canceled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its then customary practice or as otherwise directed by the Company in a Company
Order; provided, however, that the Trustee shall not be required to destroy
certificates. The Trustee shall provide the Company a list of all Notes that
have been canceled from time to time as requested by the Company.
SECTION 2.12. Defaulted Interest.
The Company shall pay interest on overdue principal from time to time
on demand at the rate of interest then borne by the Notes. The Company shall, to
the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Notes.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(2) shall be paid to
Holders as of the Interest Record Date for the Interest Payment Date for which
interest has not been paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes will use a "CUSIP" number and/or
other similar numbers (if then generally in use), and, if so, the Trustee shall
use the "CUSIP" and/or other number in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of such number
printed in the notice or on the Notes, and that reliance may be placed only on
such other identification numbers printed on the Notes, and any such redemption
or exchange shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee of any changes in "CUSIP" and/or
other numbers.
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SECTION 2.14. Deposit of Moneys.
Not less than one Business Day prior to each Interest Payment Date,
Redemption Date, Purchase Date and the Maturity Date, the Company shall deposit
with the Paying Agent in immediately available funds money sufficient to make
cash payments, if any, due on such Interest Payment Date, Redemption Date,
Purchase Date or Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends set forth on
Exhibit C hereto under the heading "Form of Legend for Global Notes."
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.16; provided, however, that Physical
Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in Global Notes only if (i) the Company notifies the
Trustee in writing that the Depository is no longer willing or able to act as a
depositary or the Depository ceases to be registered as a clearing agency under
the Exchange Act and a successor depositary is not appointed within 90 days of
such notice or cessation or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to issue
Physical Notes.
(c) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Notes shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial
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owner identified by the Depository in exchange for its beneficial interest in
the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(d) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (c) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear a Private
Placement Legend.
(e) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Notes. When Physical Notes are
presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Notes; or
(ii) to exchange such Physical Notes for an equal principal amount of
Physical Notes of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the Physical
Notes presented or surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Notes the offer and sale of which have
not been registered under the Securities Act, shall be accompanied, in the
sole discretion of the Company, by the following additional information and
documents, as applicable:
(A) if such Physical Note is being delivered to the Registrar or
co-Registrar by a Holder in connection with a Registration
pursuant to which such Holder will exchange an Initial Note for
an Unrestricted Note, a certification from such Holder to that
effect (substantially in the form of Exhibit D hereto); or
(B) if such Physical Note is being transferred to a QIB in accordance
with Rule 144A, a certification to that effect (substantially in
the form of Exhibit D hereto); or
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(C) if such Physical Note is being transferred in reliance on
Regulation S, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a transferor
certificate for Regulation S transfer substantially in the form
of Exhibit E hereto and, if the Company in its sole discretion
shall so require, an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance
with the Securities Act; or
(D) if such Physical Note is being transferred in reliance on Rule
144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit D hereto) and, if
the Company in its sole discretion shall so require, an Opinion
of Counsel reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act; or
(E) if such Physical Note is being transferred in reliance on another
exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of
Exhibit D hereto) and, if the Company in its sole discretion
shall so require, an Opinion of Counsel reasonably acceptable to
the Company to the effect that such transfer is in compliance
with the Securities Act.
(b) Restrictions on Transfer of a Physical Note for a Beneficial
Interest in a Global Note. A Physical Note the offer and sale of which has not
been registered under the Securities Act may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth
below. Upon receipt by the Registrar or co-Registrar of a Physical Note, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Registrar or co-Registrar, together with:
(A) certification, substantially in the form of Exhibit D hereto, that
such Physical Note is being transferred (I) to a QIB, (II) in an
offshore transaction in reliance on Regulation S and, with respect to
(II), certification substantially in the form of Exhibit E, hereto
and, if the Company in its sole discretion shall so require, an
Opinion of Counsel reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act or (III)
without transfer, in an exchange of a Physical Note for a beneficial
interest in a Global Note; and
(B) written instructions directing the Registrar or co-Registrar to make,
or to direct the Depository to make, an endorsement on the applicable
Global Note to reflect an increase in the aggregate amount of the
Notes represented by the Global Note,
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then the Registrar or co-Registrar shall cancel such Physical Note and cause, or
direct the Depository to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Registrar or co-Registrar,
the principal amount of Notes represented by the applicable Global Note to be
increased accordingly. If no 144A Global Note or Regulation S Global Note, as
the case may be, is then outstanding, the Company shall, unless either of the
events in the proviso to Section 2.15(b) have occurred and are continuing, issue
and the Trustee shall, upon written instructions from the Company in accordance
with Section 2.02, authenticate such a Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of Global Notes.
(I) Transfer and Exchange of Beneficial Interests between Global
Notes. The transfer and exchange of Global Notes or beneficial interests
therein shall be effected through the Depository in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depository therefor. Such transfers shall be effected
upon receipt by the Registrar or Co-Registrar of (a) written instructions,
or such other instruction as is customary for the Depository, from the
Depository or its nominee, requesting the Registration of transfer of an
interest in a 144A Global Note or a Regulation S Global Note, as the case
may be, and (b) a certificate substantially in the form of Exhibit D hereto
and, with respect to a transfer of an interest in the Notes to a transferee
who takes delivery thereof in the form of an interest in the Regulation S
Global Note, a certificate substantially in the form of Exhibit E hereto.
In the case of a transfer of such interest from a Global Note to a
different Global Note, the Registrar or Co-Registrar shall endorse the
schedule identified as Schedule A to the relevant Global Note(s) to reflect
the relevant increase or decrease, as applicable, in the principal amount
of such Global Note and provide the Depository with all such information as
is necessary for the Depository to appropriately credit and debit the
relevant Participant accounts. If the applicable type of Global Note
required to represent the interest as requested to be transferred is not
outstanding at the time of such request, the Company shall issue and the
Trustee shall, upon written instructions from the Company in accordance
with Section 2.02, authenticate a new Global Note of such type in principal
amount equal to the principal amount of the interest requested to be
transferred.
(II) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for a Beneficial Interest in an Unrestricted Global
Note. An interest in a Restricted Global Note may be exchanged by any
Holder thereof for an interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of an
interest in an Unrestricted Global Note if (i) such exchange or transfer
(i) complies with the requirements of Section 2.16(c)(I) above and (ii) the
provisions of the second sentence of Section 2.16(f) hereof would not
prohibit the Registrar or co-
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Registrar from delivering Notes that do not bear a Private Placement
Legend. Upon satisfaction of the conditions set forth in the immediately
preceding sentence, the Registrar or co-Registrar shall endorse the
schedule identified as Schedule A to the relevant Global Note(s) to reflect
the relevant increase or decrease in the principal amount of such Global
Note resulting from the applicable transfer and provide the Depository with
all such information as is necessary for the Depository to appropriately
credit and debit the relevant Participant accounts.
(d) Transfer of a Beneficial Interest in a Global Note for a Physical
Note. Subject to Section 2.15(b):
(i) Any Person having a beneficial interest in a Global Note may upon
request exchange such beneficial interest for a Physical Note; provided,
however, that prior to the Registration, a transferee that is a QIB may not
exchange a beneficial interest in Global Note for a Physical Note. Upon
receipt by the Registrar or co-Registrar of written instructions, or such
other form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person (subject to the previous
sentence) having a beneficial interest in a Global Note and upon receipt by
the Trustee of a written order or such other form of instructions as is
customary for the Depository or the Person designated by the Depository as
having such a beneficial interest containing registration instructions and,
in the case of any such transfer or exchange of a beneficial interest in
Notes the offer and sale of which have not been registered under the
Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to
that effect (substantially in the form of Exhibit D hereto) and,
if the Company in its sole discretion shall so require, an
Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities
Act; or
(B) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the
Securities Act, a certification to that effect (substantially in
the form of Exhibit D hereto) and, with respect to a transfer or
exchange of a beneficial interest in a Regulation S Global Note,
a certification substantially in the form of Exhibit E hereto
and, if the Company in its sole discretion shall so require, an
Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities
Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co-
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Registrar, the aggregate principal amount of the applicable Global Note to
be reduced and endorse the schedule identified as Schedule A to such Global
Note to reflect such decrease in the aggregate principal amount of such
Global Note and, following such reduction, the Company will execute and,
upon receipt of an authentication order in the form of an Officers'
Certificate in accordance with Section 2.02, the Trustee will authenticate
and deliver to the transferee a Physical Note in the appropriate principal
amount.
(ii) Notes issued in exchange for a beneficial interest in a Global
Note pursuant to this Section 2.16(d) shall be registered in such names and
in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar or co-Registrar in writing. The Registrar or
co-Registrar shall deliver such Physical Notes to the Persons in whose
names such Physical Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Private Placement Legend. Upon the registration of the transfer,
exchange or replacement of Notes not bearing a Private Placement Legend, the
Registrar or co-Registrar shall deliver Notes that do not bear a Private
Placement Legend. Upon the registration of the transfer, exchange or replacement
of Notes bearing a Private Placement Legend, the Registrar or co-Registrar shall
deliver only Notes that bear a Private Placement Legend unless, and the Trustee
is hereby authorized to deliver Notes without a Private Placement Legend if, (i)
there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory
to the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act; (ii) such Note has been sold pursuant
to an effective registration statement under the Securities Act (including
pursuant to a Registration); or (iii) the date of such transfer, exchange or
replacement is two years after the later of (x) the Issue Date and (y) the last
date that the Company or any affiliate (as defined in Rule 144 under the
Securities Act) of the Company was the owner of such Notes (or any predecessor
thereto).
(g) General. By its acceptance of any Note bearing a Private Placement
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in such Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture.
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The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Participants or beneficial
owners of interest in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
(a) If the Company wants to redeem Notes pursuant to paragraph 5 or 6
of the Notes (an "Optional Redemption") at the applicable redemption price set
forth thereon, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Notes to be redeemed. The Company shall give such notice
to the Trustee at least 30 days before the Redemption Date (unless a shorter
notice shall be agreed to by the Trustee in writing), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein and in the Notes.
(b) If the Company is required to redeem the Notes pursuant to Section
3.07 hereof and paragraph 7 of the Notes at the stated redemption price, it
shall notify the Trustee in writing of the Redemption Date, which shall be no
later than 20 days after the Event of Failure. The Company shall give such
notice to the Trustee promptly upon the occurrence of the Event of Failure,
together with an Officers' Certificate stating that such redemption will comply
with the conditions contained herein and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
In the event that less than all of the Notes are to be redeemed at any
time pursuant to an Optional Redemption, selection of such Notes for redemption
will be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if
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any, on which the Notes are listed or, if the Notes are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; provided,
further, however, that if a partial redemption is made with the net cash
proceeds of a Public Equity Offering, selection of the Notes or portions thereof
for redemption shall be made by the Trustee only on a pro rata basis or on as
nearly a pro rata basis as is practicable (subject to the procedures of the
Depository), unless such method is otherwise prohibited. The Trustee shall make
the selection from the Notes then outstanding subject to redemption and not
previously called for redemption.
The Trustee may select for redemption pursuant to an Optional
Redemption portions of the principal amount of Notes that have denominations
equal to or larger than $1,000 principal amount. Notes and portions of them the
Trustee so selects shall be in amounts of $1,000 principal amount or integral
multiples thereof. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date
relating to an Optional Redemption, the Company shall mail a notice of
redemption by first-class mail to each Holder whose Notes are to be redeemed at
such Holder's registered address. As promptly as possible following an Event of
Failure, the Company shall mail a notice of redemption by first-class mail to
each Holder at such Holder's registered address.
Each notice of redemption shall identify the Notes to be redeemed
(including the CUSIP number thereon, if any) in the case of an Optional
Redemption and shall state in any case:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Notes are to
be surrendered for redemption;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) that, unless the Company defaults in making payment of the
redemption price, interest on Notes called for redemption ceases to accrue
on and after the Re-
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demption Date and the only remaining right of the Holders is to receive
payment of the redemption price plus accrued interest, if any, upon
surrender to the Paying Agent;
(6) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion thereof will be issued; and
(7) the CUSIP and/or other similar number as contemplated by Section
213.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Notes designated for redemption as a whole or in
part shall not affect the validity of the procedures for the redemption of any
other Note.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price,
plus accrued interest thereon, if any, to the Redemption Date, but interest
installments whose maturity is on or prior to such Redemption Date shall be
payable to the Holders of record at the close of business on the relevant
Interest Record Date and after such date such Notes shall cease to bear
interest.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 a.m. on the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company is its own Paying Agent, shall,
on or before the Redemption Date, segregate and hold in trust) money sufficient
to pay the redemption price of, and accrued interest, if any, on, all Notes or
portions thereof to be redeemed on that date other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation. All money, if any, earned on funds held
in trust by the Paying Agent shall be remitted to the Company.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption Date due to the failure of the
Company to deposit with the Paying Agent money sufficient to pay the redemption
price thereof, the principal and ac-
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crued and unpaid interest, if any, thereon shall, until paid or duly provided
for, bear interest as provided in Sections 2.12 and 4.01 with respect to any
payment default.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such redemption price, interest on the Notes
to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment, and the Holders of such
Notes shall have no further rights with respect to such Notes except for the
right to receive the redemption price plus unpaid interest on the Notes through
the Redemption Date, upon surrender of such Notes. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal, premium, if any, and, to the extent lawful, accrued interest thereon
shall, until paid, bear interest from the Redemption Date at the rate provided
in the Notes.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for the Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. Special Mandatory Redemption.
If the Distribution Date has not occurred on or prior to July 31, 2002
(an "Event of Failure"), the Company shall redeem all of the Notes (a "Special
Mandatory Redemption") at a redemption price in cash equal to 101% of the
aggregate principal amount of the Notes plus accrued and unpaid interest
thereon, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), which will be no later than 10 days after an Event of
Failure.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of (and premium, if any) and
interest and all Liquidated Damages, if applicable, on the Notes on the dates
and in the manner provided in the Notes and the Registration Rights Agreement
and this Indenture. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the Company, a
Guarantor or any of their respective Affiliates) holds on that date money
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designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders of the Notes pursuant to the
terms of this Indenture.
The Company shall pay cash interest on overdue principal at the same
rate per annum borne by the Notes. The Company shall pay cash interest on
overdue installments of interest at the same rate per annum borne by the Notes,
to the extent lawful, as provided in Section 2.12.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the addresses of the Trustee set forth in Section
13.02. The Company hereby initially designates the Trustee at its address set
forth in Section 13.02 as its office or agency in The Borough of Manhattan, The
City of New York, for such purposes.
SECTION 4.03. Transactions with Affiliates.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into any
transaction (or series of related transactions) with or for the benefit of any
of their respective Affiliates (each an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction, taken as a whole, is on terms which
are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than would be available in a comparable transaction on an
arm's-length basis with an unaffiliated third party; and
(2) if such Affiliate Transaction or series of related Affiliate
Transactions involves aggregate payments or other consideration having a
Fair Market Value in excess of $2.5 million, such Affiliate Transaction is
in writing and a majority of the disinterested members of the Board of
Directors of the Company shall have approved such Affiliate Transaction and
determined that such Affiliate Transaction complies with the foregoing
provisions, or, in the event that there are no disinterested directors, the
Trustee has received a written opinion from an Independent Financial
Advisor stating that the terms of such Affiliate Transaction are fair, from
a financial point of view, to the Company or the Restricted Subsidiary
involved in such Affiliate Transaction, as the case may be.
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In addition, any Affiliate Transaction involving aggregate payments or
other consideration having a Fair Market Value in excess of $10.0 million will
also require a written opinion from an Independent Financial Advisor (filed with
the Trustee) stating that the terms of such Affiliate Transaction are fair, from
a financial point of view, to the Company or the Restricted Subsidiary involved
in such Affiliate Transaction, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this
Section 4.03 shall not apply to:
(1) transactions with or among the Company and any Restricted
Subsidiary or between or among Restricted Subsidiaries;
(2) customary directors' fees, indemnification and similar
arrangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary entered into in the ordinary course of business
(including customary benefits thereunder) and payments under any
indemnification arrangements permitted by applicable law;
(3) the Spin-Off Documents as in effect on the Distribution Date;
(4) loans and advances to officers, directors and employees of the
Company or any Restricted Subsidiary for travel, entertainment, moving and
other relocation expenses, in each case made in the ordinary course of
business;
(5) the pledge of Equity Interests of Unrestricted Subsidiaries to
support the Indebtedness thereof;
(6) any transaction consummated in compliance with Section 4.06;
(7) issuances and sales to Affiliates of Qualified Equity Interests of
the Company; and
(8) transactions with any Person that is an Affiliate of the Company
or any Restricted Subsidiary solely because the Company or any Restricted
Subsidiary owns Equity Interests in, or otherwise control, such Person.
SECTION 4.04. Limitation on Indebtedness.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness) or issue any Disqualified Equity Interests, except in
each case for Permitted Indebtedness; provided, however, that (i) the Company
and any Guarantor may Incur Indebtedness or issue Disquali-
-49-
fied Equity Interests if, in any such case, at the time of and immediately after
giving pro forma effect to such Incurrence of Indebtedness or issuance of
Disqualified Equity Interests and the application of the proceeds therefrom, no
Default or Event of Default shall have occurred and be continuing and the
Consolidated Coverage Ratio of the Company would be greater than 2.25 to 1.0;
and (ii) any Restricted Subsidiary that is not a Guarantor may Incur
Indebtedness or issue Disqualified Equity Interests if, in any such case, at the
time of and immediately after giving pro forma effect to such Incurrence of
Indebtedness or issuance of Disqualified Equity Interests and the application of
the proceeds therefrom, no Default or Event of Default shall have occurred and
be continuing and the Consolidated Coverage Ratio of the Company would be
greater than 2.75 to 1.0.
The foregoing limitations will not apply to the Incurrence or issuance
of any of the following (collectively, "Permitted Indebtedness"), each of which
shall be given independent effect:
(1) Indebtedness under the Notes issued on the Issue Date, the Note
Guarantees and this Indenture with respect to obligations resulting from
the Notes issued on the Issue Date and the Note Guarantees;
(2) Existing Indebtedness;
(3) Indebtedness of the Company and its Restricted Subsidiaries
pursuant to the Senior Credit Facility in an amount not to exceed the
greater of (a)(i) term loans in an aggregate principal amount at any one
time outstanding not to exceed $100.0 million, less the amount by which
such term loans are repaid (other than through refinancing Indebtedness),
plus (ii) revolving loan commitments and loans thereunder in an aggregate
principal amount at any time outstanding not to exceed $40.0 million, less
the amount by which commitments thereunder are permanently reduced and
(b)(i) 85% of accounts receivable of the Company and its Restricted
Subsidiaries as at the end of the most recently ended fiscal quarter for
which financial statements are available, plus (ii) 65% of inventory of the
Company and its Restricted Subsidiaries as at the end of the most recently
ended fiscal quarter for which financial statements are available;
(4) Indebtedness of any Restricted Subsidiary owed to and held by the
Company or any Restricted Subsidiary and Indebtedness of the Company owed
to and held by any Restricted Subsidiary, or Disqualified Equity Interests
of the Company or any of its Restricted Subsidiaries held by the Company or
any Restricted Subsidiary which Indebtedness is unsecured and subordinated
in right of payment to the payment and performance of the Company's or the
Restricted Subsidiary's obligations under any Senior Indebtedness, this
Indenture and the Notes; provided, however, that an Incurrence of
Indebtedness and issuance of Disqualified Equity Interests that is not
per-
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mitted by this clause (4) shall be deemed to have occurred upon (i) any
sale or other disposition of any Indebtedness or Disqualified Equity
Interests of the Company or any Restricted Subsidiary referred to in this
clause (4) to a Person (other than the Company or any Restricted
Subsidiary), and (ii) the designation of a Restricted Subsidiary which
holds Indebtedness or Disqualified Equity Interests of the Company or any
other Restricted Subsidiary incurred pursuant to this clause (4) as an
Unrestricted Subsidiary;
(5) guarantees by the Company or any Restricted Subsidiary of
Indebtedness permitted to be Incurred under this Section 4.04 and in
compliance with Section 4.19 hereof;
(6) Hedging Obligations of the Company and the Restricted
Subsidiaries; provided, however, that such Hedging Obligations are entered
into for genuine hedging purposes to protect the Company and/or the
Restricted Subsidiaries against interest rate, currency exchange rate,
commodity prices or similar fluctuations and not for speculative purposes;
(7) Indebtedness of the Company or any Restricted Subsidiary
consisting of Purchase Money Indebtedness and Capital Lease Obligations
(and refinancings thereof) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant to this clause (7), does not exceed $10.0
million;
(8) Indebtedness or Disqualified Equity Interests of the Company or a
Restricted Subsidiary to the extent representing a replacement, renewal,
refinancing or extension (collectively, a "refinancing") of outstanding
Indebtedness Incurred or Disqualified Equity Interests issued in compliance
with the Consolidated Coverage Ratio of the first paragraph of this Section
4.04 or any of clause (1), (2), (8) or (10) of this Section 4.04; provided,
however, that:
(A) any such refinancing shall not exceed the sum of the
principal amount (or accreted amount (determined in accordance with
GAAP), if less) of the Indebtedness or Disqualified Equity Interests
being refinanced, plus the amount of accrued interest or dividends
thereon, plus the amount of any reasonably determined prepayment
premium necessary to accomplish such refinancing and such reasonable
fees and expenses incurred in connection therewith,
(B) Indebtedness representing a refinancing of Indebtedness other
than Senior Indebtedness shall have a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being refinanced;
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(C) Indebtedness that is pari passu with the Notes may only be
refinanced with Indebtedness that is made pari passu with or
subordinate in right of payment to the Notes and Subordinated
Indebtedness may only be refinanced with Subordinated Indebtedness or
Disqualified Equity Interests and Disqualified Equity Interests may
only be refinanced with other Disqualified Equity Interests; and
(D) refinancing Indebtedness Incurred by a Restricted Subsidiary
may only be used to refinance Indebtedness of a Restricted Subsidiary
and not Indebtedness of the Company;
(9) Indebtedness of the Company or any Restricted Subsidiary
consisting of indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, Equity Interests; provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
(10) Acquired Indebtedness of any Restricted Subsidiary that is not a
Guarantor, other than Indebtedness Incurred in connection with, or in
contemplation of, such transaction; provided, however, that the Company on
a pro forma basis could Incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the Consolidated Coverage Ratio of the
first paragraph of this Section 4.04; and
(11) In addition to the items referred to in clauses (1) through (10)
above, Indebtedness (including any Indebtedness under the Senior Credit
Facility that utilizes this clause (11)) having an aggregate principal
amount not to exceed $20.0 million at any time outstanding.
For purposes of determining compliance with this Section 4.04, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (1) through (11) above
(other than Indebtedness under the Senior Credit Facility outstanding on the
Issue Date, which will be deemed to have been Incurred under clause (3)); or is
entitled to be Incurred pursuant to the first paragraph of this Section 4.04,
the Company may, in its sole discretion, classify or reclassify such item of
Indebtedness from time to time in any manner that results in compliance with
this Section 4.04 and such item of Indebtedness will be treated at any
particular time as having been Incurred pursuant to only one of such clauses or
pursuant to the first paragraph of this Section 4.04.
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SECTION 4.05. Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, make any Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the assets sold or otherwise disposed of, and
(2) at least 75% of such consideration consists of (A) cash or Cash
Equivalents or (B) properties and capital assets to be used in a Related
Business.
The amount of any (A) Indebtedness (other than any Subordinated
Indebtedness) of the Company or any Restricted Subsidiary that is actually
assumed by the transferee in such Asset Sale and from which the Company and the
Restricted Subsidiaries are fully released shall be deemed to be cash for
purposes of determining the percentage of the consideration received by the
Company or the Restricted Subsidiaries in cash or Cash Equivalents and (B)
notes, securities or other similar obligations received by the Company or the
Restricted Subsidiaries from such transferee that are immediately converted,
sold or exchanged (or are converted, sold or exchanged within thirty days of the
related Asset Sale) by the Company or the Restricted Subsidiaries into cash or
Cash Equivalents shall be deemed to be cash, in an amount equal to the net cash
proceeds or the Fair Market Value of the Cash Equivalents realized upon such
conversion, sale or exchange for purposes of determining the percentage of the
consideration received by the Company or the Restricted Subsidiaries in cash or
Cash Equivalents.
The Company or such Restricted Subsidiary, as the case may be, may
apply an amount equal to the Net Cash Proceeds of any Asset Sale within 365 days
of receipt thereof to:
(1) repay Senior Indebtedness; or
(2) make an investment in or expenditures for properties and capital
assets to be used in a Related Business that, as a result of or in
connection with such investment, becomes a Restricted Subsidiary.
To the extent all or part of the Net Cash Proceeds of any Asset Sale
are not applied within 365 days of such Asset Sale as described in clause (1) or
(2) of the immediately preceding paragraph (such Net Cash Proceeds, the
"Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such
365th day, make an Offer to Purchase all outstanding Notes and Pari Passu Debt
on a pro rata basis up to an aggregate maximum principal amount of Notes and
Pari Passu Debt equal to such Unutilized Net Cash Proceeds, at a pur-
-53-
chase price in cash equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon, if any, to the Purchase Date; provided, further,
however, that the Offer to Purchase may be deferred until there are aggregate
Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which
time the entire amount of such Unutilized Net Cash Proceeds, and not just the
amount in excess of $10.0 million, shall be applied as required pursuant to this
paragraph.
(b) With respect to any Offer to Purchase effected pursuant to this
Section 4.05 (a "Net Proceeds Offer"), among the Notes and the Pari Passu Debt,
to the extent the aggregate principal amount of Notes and the Pari Passu Debt
tendered pursuant to such Net Proceeds Offer exceeds the Unutilized Net Cash
Proceeds to be applied to the repurchase thereof, such Notes and Pari Passu Debt
shall be purchased pro rata based on the aggregate principal amount of such
Notes and Pari Passu Debt tendered by each holder thereof. To the extent the
Unutilized Net Cash Proceeds exceed the aggregate amount of Notes and Pari Passu
Debt tendered by the holders thereof pursuant to such Net Proceeds Offer (such
excess constituting an "Excess"), the Company may retain and utilize such Excess
for any general corporate purposes. Upon the completion of a Net Proceeds Offer,
the amount of Unutilized Net Cash Proceeds shall be reset to zero.
(c) In the event that the Company makes an Offer to Purchase the
Notes, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act, and any violation of the provisions of this
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
(d) Each Holder shall be entitled to tender all or any portion of the
Notes owned by such Holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a Note tendered must be tendered in an integral
multiple of $1,000 principal amount and subject to any probation among tendering
Holders as described above.
SECTION 4.06. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or any other distribution on any
Equity Interests of the Company or any Restricted Subsidiary or make any
payment or distribution to the direct or indirect holders (in their
capacities as such) of Equity Interests of the Company or any Restricted
Subsidiary (other than any dividends, distributions and payments made to
the Company or any Restricted Subsidiary and dividends or distributions
payable to any Person solely in the form of Qualified Equity Interests of
the
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Company or in options, warrants or other rights to purchase Qualified Equity
Interests of the Company);
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company (other than any such Equity Interests owned
by the Company or any Restricted Subsidiary);
(3) purchase, redeem, defease or retire for value, or make any
principal payment on, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment, any Subordinated Indebtedness (other
than any Subordinated Indebtedness held by the Company or any Restricted
Subsidiary); or
(4) make any Investment (other than Permitted Investments) in any
Person (other than in the Company, any Restricted Subsidiary or a Person
that becomes a Restricted Subsidiary, or is merged with or into or
consolidated or amalgamated with the Company or a Restricted Subsidiary
(provided the Company or a Restricted Subsidiary is the survivor), as a
result of or in connection with such Investment)
(any such payment or any other action (other than any exception thereto)
described in (1), (2), (3) or (4) above is each a "Restricted Payment"), unless:
(I) no Default or Event of Default shall have occurred and be
continuing at the time or immediately after giving effect to such
Restricted Payment;
(II) immediately after giving effect to such Restricted Payment, the
Company would be able to Incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the Consolidated Coverage Ratio of the first
paragraph of Section 4.04; and
(III) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after
the Issue Date does not exceed an amount equal to the sum of (without
duplication):
(A) 50% of cumulative Consolidated Net Income determined for the
period (taken as one period) from the beginning of the fiscal quarter
beginning on March 30, 2002 and ending on the last day of the most
recent fiscal quarter immediately preceding the date of such
Restricted Payment for which consolidated financial information of the
Company is available (or if such cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss), plus
(B) the aggregate net cash proceeds received by the Company
either (i) as capital contributions to the Company after the Issue
Date or (ii) from the
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issue and sale (other than to a Restricted Subsidiary) of its
Qualified Equity Interests after the Issue Date (excluding the net
proceeds from any issuance and sale of Qualified Equity Interests
financed, directly or indirectly, using funds borrowed from the
Company or any Restricted Subsidiary until and to the extent such
borrowing is repaid), plus
(C) the principal amount (or accreted amount (determined in
accordance with GAAP), if less) of any Indebtedness of the Company or
any Restricted Subsidiary Incurred after the Issue Date which has been
converted into or exchanged for Qualified Equity Interests of the
Company, plus
(D) in the case of the disposition or repayment of any Investment
or the release of a guarantee constituting a Restricted Payment made
after the Issue Date, an amount equal to the cash proceeds of such
disposition or repayment, less the cost of the disposition of such
Investment and net of taxes, and, in the case of guarantees, less any
amounts paid under such guarantee, plus
(E) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date in accordance with Section 4.17, the
Company's proportionate interest in an amount equal to the excess of
(i) the total assets of such Subsidiary, valued on an aggregate basis
at Fair Market Value, over (ii) the total liabilities of such
Subsidiary, determined in accordance with GAAP.
The foregoing provisions will not prevent:
(1) the payment of any dividend or distribution on, or redemption of,
Equity Interests within 60 days after the date of declaration of such
dividend or distribution or the giving of formal notice of such redemption,
if at the date of such declaration or giving of such formal notice such
payment or redemption would comply with the provisions of this Indenture;
(2) the payment of any dividend or distribution on a pro rata basis to
holders of minority Equity Interests in a Restricted Subsidiary;
(3) the purchase, redemption, retirement or other acquisition of any
Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent issue and sale (other than to a
Restricted Subsidiary) of, other Equity Interests of the Company (other
than Disqualified Equity Interests in the case of any such purchase,
redemption, retirement or other acquisition of Qualified Equity Interests);
provided, however, that any such net cash proceeds and the value of any
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Qualified Equity Interests issued in exchange for such retired Equity
Interests are excluded from clause (III)(B) of the preceding paragraph (and
were not included therein at any time);
(4) the purchase, redemption, retirement, defeasance or other
acquisition of Subordinated Indebtedness, or any other payment thereon,
made in exchange for, or out of the net cash proceeds of, a substantially
concurrent issue and sale (other than to a Restricted Subsidiary) of:
(A) Qualified Equity Interests of the Company; provided, however,
that any such net cash proceeds and the value of any Qualified
Equity Interests issued in exchange for Subordinated Indebtedness
are excluded from clauses (III)(B) and (III)(C) of the preceding
paragraph (and were not included therein at any time) or
(B) Disqualified Equity Interests of the Company or other
Subordinated Indebtedness having no stated maturity for the
payment of any portion of principal thereof prior to the final
stated maturity of the Subordinated Indebtedness being purchased,
redeemed, retired, defeased or acquired and having a Weighted
Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Subordinated Indebtedness being
purchased, redeemed, retired, defeased or acquired;
(5) repurchases of Equity Interests deemed to occur upon the exercise
of stock options;
(6) payments of dividends on, and the repurchase, redemption,
retirement or acquisition at the scheduled maturity, scheduled repayment or
scheduled sinking fund date, of Disqualified Equity Interests the
Incurrence of which was permitted by this Indenture;
(7) payments or distributions to dissenting stockholders pursuant to
applicable law, pursuant to or in connection with a consolidation, merger
or transfer of assets of the Company that complies with the provisions of
Section 5.01;
(8) payments on account of purchases of Equity Interests from
employees and directors of the Company in connection with employee stock
option plans in an aggregate amount in any calendar year not to exceed $3.0
million; and
(9) Restricted Payments not to exceed $7.5 million in the aggregate
since the Issue Date;
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provided, however, that in the case of each of clauses (6) and (8) no Default
shall have occurred and be continuing or would arise therefrom.
In determining the amount of Restricted Payments permissible under
clause III of this Section 4.06, amounts expended pursuant to clauses (7) and
(8) of the immediately preceding paragraph shall be included as Restricted
Payments and amounts expended pursuant to clauses (1) through (6) shall be
excluded. The amount of any non-cash Restricted Payment shall be deemed to be
equal to the Fair Market Value thereof at the date of the making of such
Restricted Payment.
SECTION 4.07. Corporate Existence.
Except as permitted by Article Five, the Company shall do or shall
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of each Restricted Subsidiary in accordance with the respective organizational
documents of each such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and the Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Restricted Subsidiary, if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and the Restricted Subsidiaries, taken as a whole and
that the loss thereof could not reasonably be expected to have a material
adverse effect on the ability of the Company to perform its obligations
hereunder; provided, further, however, that a determination of the Board of
Directors of the Company shall not be required in the event of a merger of one
or more Wholly Owned Restricted Subsidiaries of the Company with or into another
Wholly Owned Restricted Subsidiary of the Company or another Person, if the
surviving Person is a Wholly Owned Restricted Subsidiary of the Company
organized under the laws of the United States or any State thereof or of the
District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary if failure to pay or discharge the same could reasonably
be expected to have a material adverse effect on the ability of the Company or
any Restricted Subsidiary to perform its obligations hereunder and (2) all
lawful claims for labor, materials and supplies which, in each case, if unpaid,
might by law become a material liability, or Lien upon the property, of the
Company or any Restricted Subsidiary except for any Lien permitted to be
incurred under Section 4.18, if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the
Company or any Restricted Subsidiary to perform its obligations hereunder;
provided, however, that the
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Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 4.09. Notice of Defaults.
Upon becoming aware of any Default or Event of Default, the Company
shall promptly, and in any event within 30 days, deliver an Officers'
Certificate to the Trustee specifying the Default or Event of Default and what
action the Company proposes to take with respect thereto to the extent then
determined.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
it or any Restricted Subsidiary and used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in normal condition, repair and working order (ordinary wear and tear excepted)
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly conducted at all times;
provided, however, that nothing in this Section 4.10 shall prevent the Company
or any Restricted Subsidiary from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Company or such Restricted
Subsidiary, desirable in the reasonable conduct of the business of the Company
or any Restricted Subsidiary; provided, further, that the foregoing shall not
prohibit a sale, transfer or conveyance to a Restricted Subsidiary or any of its
properties or assets in compliance with the terms of this Indenture.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year a brief certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Company has been made under the
supervision of the signing officer with a view to determining whether a Default
or Event of Default has occurred and whether or not the signer knows of any
Default or Event of Default by the Company that occurred during such fiscal
year. If he or she does know of such a Default or Event of Default, the
certificate shall describe all such Defaults or Events of Default, their status
and the action the Company is taking or proposes to take with respect thereto.
The Company shall provide written notice to the Trustee of any change in its
fiscal year.
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SECTION 4.12. Provision of Financial Information.
Whether or not required by the SEC, so long as any Notes are
outstanding, the Company will furnish to the Trustee, and the Trustee will
deliver to the Holders within the time periods specified in the SEC's rules and
regulations (i) all annual and quarterly financial information that would be
required to be contained in a filing with the SEC on Forms 10-K and 10-Q if the
Company were required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with respect
to the annual information only, a report on the annual financial statements by
the Company's independent auditors; and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraph shall include or be accompanied by a reasonably detailed
presentation (which may be contained in the footnotes) of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company.
In addition, whether or not required by the SEC, the Company shall
file a copy of all of the information and reports referred to in the second
preceding paragraph with the SEC for public availability (unless the SEC will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company will also furnish
to Holders, securities analysts and prospective investors upon request the
information (if any) required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the Notes are not freely transferable under the
Securities Act. The Company shall also comply with the other provisions of
Section 314(a) of the TIA.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law, which would prohibit or forgive the
Company or such Guarantor from paying all or any portion of the principal of
and/or interest, if any, on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company and each Guarantor hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
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SECTION 4.14. Offer to Purchase upon Change of Control.
In the event of the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Company shall notify
the Holders of the Notes of such occurrence in the manner prescribed by this
Indenture and shall, within 30 days after the Change of Control Date (or, at the
Company's option, prior to such Change of Control Date), make an Offer to
Purchase all Notes then outstanding, and shall purchase all Notes validly
tendered, at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Purchase Date (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant Interest Payment Date).
The Company shall not be required to make an Offer to Purchase upon a
Change of Control if a third party makes the Offer to Purchase at the same
purchase price, at the same time and otherwise in compliance with the
requirements applicable to an Offer to Purchase made by the Company and
purchases all Notes validly tendered and not withdrawn under such Offer to
Purchase.
In addition, the Company shall not be required to make an Offer to
Purchase, as provided above, if, in connection with or in contemplation of any
Change of Control, the Company has made an offer to purchase (an "Alternate
Offer") any and all Notes validly tendered at a cash price equal to or higher
than the Purchase Price and has purchased all Notes properly tendered in
accordance with the terms of such Alternate Offer so long as the terms and
conditions of such contemplated Change of Control are described in reasonable
detail to the Holders in the notice delivered in connection with such Offer to
Purchase.
If a Change of Control occurs which also constitutes an event of
default under the Senior Credit Facility, the lenders under the Senior Credit
Facility would be entitled to exercise the remedies available to a secured
lender under applicable law and pursuant to the terms of the Senior Credit
Facility. Accordingly, any claims of such lenders with respect to the assets of
the Company and its Subsidiaries will be prior to any claim of the Holders of
the Notes with respect to such assets. In addition, the subordination provisions
of this Indenture prohibit the Company from complying with the Change of Control
provisions.
If an Offer to Purchase is made, the Company may not have available
funds sufficient to pay for all of the Notes that might be tendered by Holders
of Notes seeking to accept the Offer to Purchase. If the Company fails to
repurchase all of the Notes tendered for purchase, such failure will constitute
an Event of Default under the Indenture.
If the Company makes an Offer to Purchase, the Company will comply
with all applicable tender offer laws and regulations, including, to the extent
applicable, Section 14(e) of, and Rule 14e-1 under, the Exchange Act, and any
other applicable federal or state securi-
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ties laws and regulations and any applicable requirements of any securities
exchange on which the Notes are listed, and any violation of the provisions of
this Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that, with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
Except as described in this covenant with respect to a Change of
Control, this Indenture does not contain any provisions that permit the Holders
of the Notes to require that the Company repurchase or redeem the Notes in the
event of a takeover, recapitalization or similar transaction.
SECTION 4.15. Limitation on Layering.
The Company shall not, directly or indirectly, Incur any Indebtedness
that by its terms would expressly rank senior in right of payment to the Notes
and expressly rank subordinate in right of payment to any other Indebtedness of
the Company. No Guarantor shall, directly or indirectly, Incur any Indebtedness
that by its terms would expressly rank senior in right o payment to the Note
Guarantee of such Guarantor and expressly rank subordinate in right of payment
to any other Indebtedness of such Guarantor.
SECTION 4.16. Limitations on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to: (A) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Equity
Interests or with respect to any other interest or participation in, or measured
by, its profits, or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (B) make loans or advances to, or guarantee any
Indebtedness or other obligations of, the Company or any other Restricted
Subsidiary or (C) transfer any of its properties or assets to the Company or any
other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of:
(1) the Senior Credit Facility and Existing Indebtedness, as in effect
on the Distribution Date, and any amendments, restatements, renewals,
replacements or refinancings thereof; provided, however, that any such
amendment, restatement, renewal, replacement or refinancing is no more
restrictive in the aggregate with respect to such encumbrances or
restrictions than those contained in the agreement being amended, restated,
renewed, replaced or refinanced;
(2) any applicable law, rule, regulation or order;
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(3) any instrument of an Acquired Person acquired by the Company or
any Restricted Subsidiary as in effect at the time of such acquisition
(except to the extent such instrument was entered into by such Acquired
Person in connection with, as a result of or in contemplation of such
acquisition); provided, however, that such encumbrances and restrictions
are not applicable to any Restricted Subsidiary, or the properties or
assets of any Restricted Subsidiary, other than the Acquired Person or the
property or assets of the Acquired Person;
(4) customary non-assignment provisions in leases, licenses or
contracts;
(5) Purchase Money Indebtedness and Capitalized Lease Obligations for
property acquired in the ordinary course of business that only imposes
encumbrances and restrictions on the property so acquired;
(6) any agreement for the sale or disposition of the Equity Interests
or assets of any Restricted Subsidiary; provided, however, that such
encumbrances and restrictions described in this clause (6) are only
applicable to such Restricted Subsidiary or assets, as applicable, and any
such sale or disposition is made in compliance with Section 4.05 to the
extent applicable thereto;
(7) refinancing Indebtedness permitted under clause (8) of the second
paragraph of Section 4.04; provided, however, that such encumbrances and
restrictions contained in the agreements governing such Indebtedness are no
more restrictive in the aggregate than those contained in the agreements
governing the Indebtedness being refinanced immediately prior to such
refinancing;
(8) this Indenture;
(9) any other instrument governing Indebtedness of the Company that is
no more restrictive than those contained in this Indenture or the Senior
Credit Facility as in effect on the Issue Date;
(10) any security agreement or mortgage securing Indebtedness of the
Company or any Restricted Subsidiary to the extent such restriction
restricts the transfer of the property subject to such security agreement
or mortgage;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(12) any instrument (other than any instrument described in clause
(13)) governing Indebtedness Incurred by Foreign Subsidiaries in accordance
with the Indenture so long as (a) at the time of and immediately after
giving pro forma effect to
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such Incurrence and the application of the proceeds therefrom, the
Consolidated Coverage Ratio of the Company would be greater than 2.75 to
1.0, and (b) such encumbrance or restriction permits by its terms at all
times (other than during the occurrence and continuation of a payment
default under such Indebtedness) distributions or loans to the Company to
permit payments on the Notes when due as required by the terms of this
Indenture;
(13) any instrument (other than any instrument described in clause
(12)) governing Indebtedness Incurred by Foreign Subsidiaries in accordance
with the Indenture in an aggregate principal amount not to exceed $30.0
million at any one time outstanding; and
(14) customary restrictions imposed by the terms of shareholders',
partnership or joint venture agreements entered into in the ordinary course
of business; provided, however, that such restrictions do not apply to any
Restricted Subsidiaries other than the applicable company, partnership or
joint venture.
SECTION 4.17. Designation of Unrestricted Subsidiaries.
(a) The Company may designate after the Issue Date any Subsidiary of
the Company as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(1) no Default or Event of Default shall have occurred and be
continuing after giving effect to such Designation; and
(2) except in the case of a newly organized Subsidiary in which the
Company and the Restricted Subsidiaries have made an aggregate Investment
of $10,000 or less, and assuming the effectiveness of such Designation, an
Investment in an amount equal to the Designation Amount could be made in
compliance with the first paragraph of Section 4.06.
Neither the Company nor any Restricted Subsidiary shall at any time
(A) provide credit support for, subject any of its property or assets (other
than the Equity Interests of any Unrestricted Subsidiary) to the satisfaction
of, or guarantee, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (B) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (C) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary, except for any
non-recourse guarantee given solely to support the pledge by the Company or any
Restricted Subsidiary of the Equity Interests of any Unrestricted Subsidiary
and, assuming com-
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pliance with clauses (A) and (B) above, to the extent permitted under Section
4.06. All Subsidiaries of Unrestricted Subsidiaries shall be automatically
deemed to be Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(1) no Default or Event of Default shall have occurred and be
continuing after giving effect to such Revocation; and
(2) all Liens of such Unrestricted Subsidiary outstanding immediately
following such Revocation would, if Incurred at such time, have been
permitted to be Incurred for all purposes of this Indenture.
(c) All Designations and Revocations must be evidenced by filing with
the Trustee resolutions of the Board of Directors of the Company and an
Officers' Certificate certifying compliance with the foregoing provisions.
SECTION 4.18. Limitation on Liens.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur or suffer to exist any Liens (other
than Permitted Liens) against or upon any of their respective properties or
assets now owned or hereafter acquired, or any proceeds therefrom or any income
or profits therefrom, in each case to secure any Specified Indebtedness unless
contemporaneously therewith effective provision is made, in the case of the
Company, to secure the Notes and all other amounts due under this Indenture
equally and ratably with such Indebtedness (or, in the event that such
Indebtedness is Subordinated Indebtedness, prior to such Indebtedness) with a
Lien on the same properties and assets securing such Indebtedness for so long as
such Indebtedness is secured by such Lien.
SECTION 4.19. Subsidiary Guarantees.
If any Restricted Subsidiary that is a Domestic Subsidiary (including
any Restricted Subsidiary formed or acquired after the Issue Date) shall
guarantee any Indebtedness ("Guaranteed Indebtedness") of the Company pursuant
to the Senior Credit Facility), then such Restricted Subsidiary shall (i)
execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
this Indenture, (ii) execute and deliver to the Trustee a Note Guarantee in
accordance with Section 11.06 and (iii) deliver to the Trustee an Opinion of
Counsel that, subject to customary qualifications such supplemental indenture
has been duly authorized, executed and delivered by such Restricted Subsidiary
and constitutes a legal, valid, binding and enforceable obliga-
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tion of such Subsidiary. In addition, the Company may, at its option, cause any
Restricted Subsidiary to guarantee all of the Company's obligations under the
Notes and this Indenture.
Notwithstanding the foregoing, any guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale or other disposition
of all or substantially all of the assets of that Guarantor (including by way of
merger or consolidation or any sale of all of the capital stock of that
Guarantor) to a Person that is not the Company or a Subsidiary; provided that
the Company shall, if applicable, apply the Net Cash Proceeds of that sale or
other disposition in accordance with the applicable provisions of this
Indenture; (ii) if the Company designates such Guarantor as an Unrestricted
Subsidiary in accordance with this Indenture; and (iii) if such Guarantor's
guarantee of the Senior Credit Facility is released or discharged, or, at the
Company's option, if the Guarantor is not a guarantor of the Senior Credit
Facility.
SECTION 4.20. Limitation on Activities of Allergan.
Prior to the Distribution Date, Allergan shall not agree to amend or
modify or seek a waiver of any of the provisions of Sections 5.08 and 5.11 of
the Allergan Credit Facility or the defined terms used in such sections in a
manner materially adverse to the Holders, other than the adoption of Amendment
No. 2 to the Allergan Credit Facility in the form provided to the Initial
Purchasers, together with such modifications thereto that are not materially
adverse to the Holders.
SECTION 4.21. Limitation on Use of Proceeds.
The Company shall not, directly or indirectly, use the net proceeds
received from the issuance of the Notes for any purpose other than investing in
cash until the closing and initial funding under the Senior Credit Facility has
been consummated as contemplated in the offering memorandum related to the Notes
dated as of June 13, 2002.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.
The Company shall not consolidate with or merge with or into (whether
or not the Company is the Surviving Person) any other entity and the Company
shall not and shall not cause or permit any Restricted Subsidiary to, sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially all
of the Company's and the Restricted Subsidiaries'
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properties and assets (determined on a consolidated basis for the Company and
the Restricted Subsidiaries) to any entity in a single transaction or series of
related transactions, unless:
(1) either (A) the Company shall be the Surviving Person or (B) the
Surviving Person (if other than the Company) shall be a corporation,
partnership, company or trust organized and validly existing under the laws
of the United States of America or any State thereof or the District of
Columbia, and shall, in any such case, expressly assume by a supplemental
indenture, the due and punctual payment of the principal of, premium, if
any, and interest on all the Notes and the performance and observance of
every provision of this Indenture and the Registration Rights Agreement to
be performed or observed on the part of the Company;
(2) immediately thereafter, on a pro forma basis after giving effect
to such transaction, no Default or Event of Default shall have occurred and
be continuing;
(3) except in the case of any such transaction between the Company and
any Restricted Subsidiary, immediately after giving effect to any such
transaction including the Incurrence by the Company or any Restricted
Subsidiary, directly or indirectly, of additional Indebtedness (and
treating any Indebtedness not previously an obligation of the Company or
any Restricted Subsidiary in connection with or as a result of such
transaction as having been Incurred at the time of such transaction), the
Surviving Person could Incur, on a pro forma basis after giving effect to
such transaction, at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the Consolidated Coverage Ratio of the first
paragraph of Section 4.04; and
(4) the Company will have delivered to the Trustee an Officers'
Certificate stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all the properties and assets of one or more Restricted
Subsidiaries the Equity Interests of which constitute all or substantially all
the properties and assets of the Company shall be deemed to be the transfer of
all or substantially all the properties and assets of the Company.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraphs in
which the Company is not the Surviving Person and the Surviving Person is to
assume all the Obligations of the Company under the Notes, this Indenture and
the Registration Rights Agreement pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company and the Company shall be discharged from
its Obligations under this Indenture and the Notes.
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A Guarantor may not sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of its assets, or consolidate with or merge
with or into (whether or not such Guarantor is the Surviving Person), another
Person unless:
(1) immediately after giving effect to that transaction, no Default or
Event of Default exists; and
(2) either:
(a) the Person acquiring the property in any such sale or disposition
or the Person formed by or surviving any such consolidation or merger (if other
than the Guarantor) assumes all the obligations of that Guarantor pursuant to a
supplemental indenture reasonably satisfactory to the Trustee; or
(b) the Net Cash Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture.
SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Company or a
Guarantor, as the case may be, is not the Surviving Person and the Surviving
Person is to assume all the Obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement or of such Guarantor under its
Guaranty, this Indenture and the Registration Rights Agreement, as the case may
be, pursuant to a supplemental indenture, such Surviving Person shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company and the Company shall be discharged from its Obligations under this
Indenture and the Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
The occurrence of any of the following will be defined as an "Event of
Default" for purposes of this Indenture:
(1) failure to pay principal of (or premium, if any, on) any Note when
due (whether or not prohibited by the provisions of Article Eight hereof);
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(2) failure to pay any interest on any Note when due, continued for 30
days or more (whether or not prohibited by the provisions of Article Eight
hereof;);
(3) failure to pay on the Purchase Date the Purchase Price for any
Note validly tendered pursuant to any Offer to Purchase (whether or not
prohibited by the provisions of Article Eight hereof);
(4) failure to perform or comply with any of the provisions of Section
5.01;
(5) failure to perform or comply with any of the provisions of Section
3.07;
(6) failure to perform any other covenant, warranty or agreement of
the Company under this Indenture or in the Notes continued for 60 days or
more after written notice to the Company by the Trustee or to the Trustee
and the Company by Holders of at least 25% in aggregate principal amount of
the outstanding Notes;
(7) default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any of its Restricted
Subsidiaries having an outstanding principal amount of greater than $12.5
million individually or in the aggregate either (A) that have resulted in
the acceleration of the payment of such Indebtedness or (B) by the Company
or any of its Restricted Subsidiaries in the payment of principal when due
at the stated maturity of any such Indebtedness;
(8) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any of its Restricted Subsidiaries in an
amount of greater than $12.5 million which remain undischarged or unstayed
for a period of 60 days after the date on which the right to appeal has
expired;
(9) a Note Guarantee ceases to be in full force and effect or is
declared to be null and void and unenforceable or the Note Guarantee is
found to be invalid or a Guarantor denies its liability under its Note
Guarantee (other than by reason of release of the Guarantor in accordance
with the terms of this Indenture); or
(10) the Company or any Significant Restricted Subsidiary pursuant to
or within the meaning of any Bankruptcy Law: (i) admits in writing its
inability to pay its debts generally as they become due; (ii) commences a
voluntary case or proceeding; (iii) consents to the entry of an order for
relief against it in an involuntary case or proceeding; (iv) consents to
the institution of a bankruptcy or insolvency proceeding against it; (v)
consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (vi) makes a general assignment for
the benefit of its creditors, or any of them takes any action to authorize
or effect any of the foregoing; or
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(11) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company or any
Significant Restricted Subsidiary in an involuntary case or proceeding;
(ii) appoints a Custodian of the Company or any Significant Restricted
Subsidiary for all or substantially all of its property; or (iii) orders
the liquidation of the Company or any Significant Restricted Subsidiary;
and in each case the order or decree remains unstayed and in effect for 60
days; provided, however, that if the entry of such order or decree is
appealed and dismissed on appeal, then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to have been
cured.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Notes (other than an Event
of Default with respect to the Company described in clause (10) or (11) of
Section 6.01) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Notes, by notice in writing
to the Trustee and the Company, may declare the unpaid principal of (and
premium, if any) and accrued interest to the date of acceleration on all the
outstanding Notes to be due and payable (a) if there shall no longer be any
Senior Credit Facility, immediately or (b) if there shall be a Senior Credit
Facility, upon the first to occur of (i) the declaration of an acceleration of
Indebtedness outstanding under the Senior Credit Facility and (ii) the fifth
Business Day after receipt by the Company and the agents or trustees acting on
behalf of any Senior Credit Facility of such declaration given under this
Indenture and, upon any such declaration, such principal amount (and premium, if
any) and accrued interest, notwithstanding anything contained in this Indenture
or the Notes to the contrary will become immediately due and payable. If an
Event or Default specified in clause (10) or (11) of Section 6.01 occurs, the
Notes will automatically become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder of the Notes.
After a declaration of acceleration, but before a judgment or decree
of the money due in respect of the Notes has been obtained, the Holders of a
majority in aggregate principal amount of the Notes then outstanding by written
notice to the Trustee may rescind an acceleration and its consequences if all
existing Events of Default (other than the nonpayment of principal of and
interest on the Notes which has become due solely by virtue of such
acceleration) have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or
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interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy maturing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.02, 6.07 and 10.02, prior to the
declaration of acceleration of the Notes, the Holders of not less than a
majority in aggregate principal amount of the outstanding Notes, on behalf of
the Holders of all of the Notes, by written notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of and premium, if any, or interest on any Note as
specified in clauses (1), (2) and (3) of Section 6.01 or a default arising from
failure to purchase any Notes tendered pursuant to an Offer to Purchase or a
Default in respect of any term or provision of this Indenture that may not be
amended or modified without the consent of each Holder affected as provided in
Section 10.02. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This paragraph of this
Section 6.04 shall be in lieu of (S) 316(a)(1)(B) of the TIA and such (S)
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the
Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Notes, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of another Holder, or
that may involve the Trustee in personal liability; provided, however, that the
Trus-
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tee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused or expected to be caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA,
and such (S) 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
No Holder of any Note will have any right to institute any proceeding
with respect to this Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default thereunder and unless the Holders of at least 25% of the aggregate
principal amount of the outstanding Notes shall have made written request, and
offered reasonable indemnity or security, to the Trustee to institute such
proceeding as the Trustee shall require, and the Trustee shall have not have
received from the Holders of a majority in aggregate principal amount of such
outstanding Notes a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days. However, such limitations do
not apply to a suit instituted by a Holder of such a Note for enforcement of
payment of the principal of and premium, if any, or interest on such Note on or
after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any or interest on
a Note, on or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in Section 6.01(1), (2) or (3) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Notes for the whole amount of principal and accrued
interest remaining unpaid, together with interest overdue on principal and to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes
and such further amount as shall be sufficient to cover the costs and expenses
of collection, in-
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cluding the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, after reserving therefrom by the Trustee an amount sufficient, in the
determination of the Trustee, to cover the expenses, disbursements and advances
of the Trustee that may be incurred thereafter, it shall pay out the money or
property, subject to applicable law, in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
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SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Notes, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Notes on or after
the respective due dates expressed in the Note.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of a Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; however,
in the case of any such certificates or opinions furnished to the Trustee
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine such certificates
and opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own gross
negligence or bad faith in acting or failing to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive from such Holders an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction; provided, however, that under no circumstances shall the Trustee be
required to advance its own funds.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely on any document reasonably
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated
in any such document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
the provisions of Section 13.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection
and shall not be responsible for the misconduct or negligence of any agent
or attorney (other than an employee of the Trustee) appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers other than any liabilities arising out of the
gross negligence, bad faith or willful misconduct of the Trustee.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, security, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
rea-
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sonably see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at
the expense of the Company, and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(i) The Trustee shall not be deemed to have notice or be charged with
any knowledge of any Default or Event of Default unless a Trust Officer who
has direct responsibility for the administration of this Indenture has
actual knowledge thereof or unless the Trustee shall have received from the
Company, any Guarantor or any other obligor upon the Notes or by any Holder
written notice thereof at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture. Delivery of the
reports, information and documents to the Trustee pursuant to Section 4.12
hereof is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance or noncompliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers'
Certificate).
(j) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee, in each of its
capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any persons
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
(l) The permissive right of the Trustee to take any action under this
Indenture shall not be construed as a duty to so act.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee, subject to
Section 7.10 hereof. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default (as provided in Section
7.02(i) hereof), the Trustee shall mail to each Holder notice of the Default or
Event of Default within 30 days after the occurrence thereof. Except in the case
of a Default or an Event of Default in payment of principal of, premium, if any,
or interest on any Note or a Default or Event of Default in complying with
Section 5.01, the Trustee may withhold the notice if and so long as a committee
of its Trust Officers or its executive committee in good faith determines that
withholding the notice is in the interest of Holders. This Section 7.05 shall be
in lieu of the proviso to (S) 315(b) of the TIA and such proviso to (S)
315(b) of the TIA is hereby expressly excluded from this Indenture and the
Notes, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA (S) 313(a), within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder a report dated as of such May 15 that complies with
TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b), (c) and (d).
A copy of each such report at the time of its mailing to Holders shall
be filed with the SEC and each stock exchange, if any, on which the Notes are
listed.
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee from time to
time such compensation as the Company and the Guarantors and the Trustee shall
from time to time agree in writing for all its services rendered by it
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and the Guarantors
shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances (including fees, disbursements and expenses of its agents
and
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counsel) incurred or made by it in addition to the compensation for its services
in accordance with any of the provisions of this Indenture except any such
disbursements, expenses and advances as may be attributable to the Trustee's
gross negligence, willful misconduct or bad faith. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents,
accountants, experts and counsel and any taxes or other expenses incurred by a
trust created pursuant to Section 9.01 hereof.
The Company and the Guarantors shall indemnify, defend and hold the
Trustee and its directors, officers, employees, directors and agents
(collectively, with the Trustee, the "Indemnitees") harmless from and against
every loss, liability or expense, including, without limitation, taxes (other
than franchise taxes imposed on the Trustee and taxes based upon, measured by or
determined by the income of the Trustee), damages, fines, suits, actions,
demands, penalties, costs, out-of-pocket or incidental expenses, legal fees and
expenses, the allocated costs and expenses of in-house counsel and legal staff
and the costs and expenses of defending or preparing to defend against any claim
(collectively, "Losses"), that may be imposed on, incurred by or asserted
against, any Indemnitee for, or in respect of, the Trustee's (1) execution and
delivery of this Indenture relating to Senior Indebtedness, (2) compliance or
attempted compliance with or reliance upon any instruction or other direction
upon which the Trustee is authorized to conclusively rely pursuant to the terms
of the Indenture, (3) performance under this Indenture or (4) enforcement of
this provision, provided in each case that the Trustee has not acted with gross
negligence or engaged in willful misconduct. The Trustee shall notify the
Company and the Guarantors promptly of any claim asserted against the Trustee
for which it may seek indemnity. However, the failure by the Trustee to so
notify the Company and the Guarantors shall not relieve the Company and the
Guarantors of their obligations hereunder, except to the extent, if any, that
such failure actually prejudices the defense of such claim. The Company and the
Guarantors shall defend the claim and the Trustee shall cooperate in the defense
(and may employ its own counsel) at the Company's and the Guarantors' expense;
provided, however, that the Company's and the Guarantors' reimbursement
obligation with respect to counsel employed by the Trustee will be limited to
the reasonable fees and expenses of such counsel.
As long as no Event of Default has occurred and is continuing, the
Company and the Guarantors need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld.
To secure the Company's and the Guarantors' payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the Notes against all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, premium, if any, or
interest on particular Notes or the Purchase Price or redemption price of any
Notes to be purchased pursuant to an Offer to Purchase or redeemed.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(10) or (11) occurs, the expenses (including
the reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's and the Guarantors'
obligations under this Section 7.07 and any Lien or claim arising hereunder
shall survive the resignation or removal of any Trustee, the discharge of the
Company's and the Guarantors' obligations pursuant to Article Nine and any
rejection or termination under any Bankruptcy Law or otherwise.
The provisions of this Section 7.07 shall survive the termination of
this Indenture, including, without limitation, the resignation or removal of the
Trustee for any reason. The Trustee's claims under this Section 7.07 shall have
priority over all other claims against the Company and the Guarantors under this
Indenture.
"Trustee" for purposes of this Section 7.07 shall include any
predecessor Trustee; provided, however, that the gross negligence or willful
misconduct of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing no
later than 30 Business Days prior to the proposed date of resignation and may
appoint a successor Trustee with the Company's consent. The Company may remove
the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(c) a Custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the resulting, surviving or transferee Person without any further act
shall be the successor Trustee so long as it meets the requirements of Section
7.10.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(2). The Trustee shall have
a combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. If the Trustee has or shall acquire
any "conflicting interest" within the meaning of TIA (S) 310(b), the Trustee and
the Company shall comply with the provisions of TIA (S) 310(b); provided,
however, that there shall be excluded from the operation of TIA (S) 310(b)(1)
any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in TIA (S) 310(b)(1) are met. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, the Trustee shall resign immediately in the
manner and with the effect hereinbefore specified in this Article Seven. Nothing
herein shall
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prevent the Trustee from filing with the SEC the application referred to in the
second to last paragraph of Section 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE EIGHT
SUBORDINATION OF NOTES
SECTION 8.01. Notes Subordinated to Senior Indebtedness.
The Company covenants and agrees, and the Trustee and each Holder of
the Notes by the acceptance thereof likewise covenant and agree, that all Notes
shall be issued subject to the provisions of this Article Eight; and each person
holding any Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that all payments of the principal of,
premium, if any, and interest on the Notes by the Company shall, to the extent
and in the manner set forth in this Article Eight, be subordinated and junior in
right of payment to the prior payment in full in cash of all Obligations arising
under Senior Indebtedness.
SECTION 8.02. No Payment on Notes in Certain Circumstances.
(a) No direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities and excluding any payment from funds
held in trust for the benefit of the Holders pursuant to Article Nine (a
"Defeasance Trust Payment")) by or on behalf of the Company of principal of,
premium, if any, or interest on the Notes, whether pursuant to the terms of the
Notes, upon acceleration, pursuant to an Offer to Purchase, redemption or
otherwise, will be made and the Company may not defease the Notes, if, at the
time of such payment or defeasance, there exists a default in the payment of all
or any portion of the obligations on any Designated Senior Indebtedness, whether
at maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Designated Senior
Indebtedness. In addition, during the continuance of any non-payment event of
default with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be immediately accelerated, and upon receipt by the Trustee
of written notice (a "Payment Blockage Notice") from the holder or holders of
such Designated Senior In-
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debtedness or the trustee or agent acting on behalf of the holders of such
Designated Senior Indebtedness, then, unless and until such event of default has
been cured or waived or has ceased to exist or such Designated Senior
Indebtedness has been discharged or repaid in full in cash or the benefits of
these provisions have been waived by the holders of such Designated Senior
Indebtedness, no direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities and excluding any Defeasance Trust
Payment) will be made by or on behalf of the Company of principal of, premium,
if any, or interest on the Notes, whether pursuant to the terms of the Notes,
upon acceleration, pursuant to an Offer to Purchase, redemption or otherwise to
such Holders, and the Company will not defease the Notes during a period (a
"Payment Blockage Period") commencing on the date of receipt of such notice by
the Trustee and ending 179 days thereafter.
Notwithstanding anything in the subordination provisions of this
Indenture or the Notes to the contrary, (1) in no event will a Payment Blockage
Period extend beyond 179 days from the date the Payment Blockage Notice in
respect thereof was given, (2) there shall be a period of at least 181
consecutive days in each 360-day period when no Payment Blockage Period is in
effect and (3) not more than one Payment Blockage Period may be commenced with
respect to the Notes during any period of 360 consecutive days. No event of
default that existed or was continuing on the date of commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Payment Blockage Period (to the extent the holder of Designated
Senior Indebtedness, or trustee or agent, giving notice commencing such Payment
Blockage Period had knowledge of such existing or continuing event of default)
may be, or be made, the basis for the commencement of any other Payment Blockage
Period by the holder or holders of such Designated Senior Indebtedness or the
trustee or agent acting on behalf of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such event of
default has been cured or waived for a period of not less than 90 consecutive
days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder at a time when such payment is
prohibited by Section 8.02(a), such payment shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Designated Senior Indebtedness or their respective representatives, or to the
trustee or trustees or agent or agents under any indenture or agreement pursuant
to which any of such Designated Senior Indebtedness may have been issued or
incurred, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Designated Senior Indebtedness
that such prohibited payment has been made, the holders of the Designated Senior
Indebtedness (or their representative or representatives or a trustee or
trustees) notify the Trustee in writing of the amounts then due and owing on the
Designated Senior Indebtedness, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Designated Senior
Indebtedness.
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SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities and
excluding any Defeasance Trust Payment), upon any dissolution or winding-up or
total liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other similar
proceedings, all Senior Indebtedness shall first be paid in full in cash before
the Holders of the Notes or the Trustee on behalf of such Holders shall be
entitled to receive any payment by the Company of the principal of, premium, if
any, or interest on the Notes, or any payment by the Company to acquire any of
the Notes for cash, property or securities, or any distribution by the Company
with respect to the Notes of any cash, property or securities (excluding any
payment or distribution of Permitted Junior Securities and excluding any
Defeasance Trust Payment). Before any payment may be made by, or on behalf of,
the Company of the principal of, premium, if any, or interest on the Notes upon
any such dissolution or winding-up or total liquidation or reorganization, any
payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (excluding any payment or
distribution of Permitted Junior Securities and excluding any Defeasance Trust
Payment), to which the Holders of the Notes or the Trustee on their behalf would
be entitled, but for the subordination provisions of this Indenture, shall be
made by the Company or by any receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, directly to
the holders of the Senior Indebtedness (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders) or their
representatives or to the trustee or trustees or agent or agents under any
agreement or indenture pursuant to which any of such Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Indebtedness in full in cash after giving
effect to any prior or concurrent payment, distribution or provision therefor to
or for the holders of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities (excluding any payment or distribution of Permitted Junior
Securities and excluding any Defeasance Trust Payment), shall be received by the
Trustee or any Holder of Notes at a time when such payment or distribution is
prohibited by Section 8.03(a) and before all Obligations in respect of Senior
Indebtedness are paid in full in cash, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders)
or their respective representatives, or to the trustee or trustees or agent or
agents under any indenture or agreement pursuant to which any of such Senior
Indebtedness may have been issued or incurred, as their respective interests may
appear, for application to the pay-
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ment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness
has been paid in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 8.03
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 8.04. Subrogation.
Upon the payment in full in cash of all Senior Indebtedness, the
Holders of the Notes shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company made on such Senior Indebtedness until the principal
of and interest on the Notes shall be paid in full in cash; and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Notes or the Trustee on their behalf would be entitled except for the
provisions of this Article Eight, and no payment over pursuant to the provisions
of this Article Eight to the holders of Senior Indebtedness by Holders of the
Notes or the Trustee on their behalf shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Notes, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Eight are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Notes, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Notes would
otherwise have been entitled but for the provisions of this Article Eight shall
have been applied, pursuant to the provisions of this Article Eight, to the
payment of all amounts payable under Senior Indebtedness, then and in such case,
the Holders of the Notes shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full in
cash of such Senior Indebtedness.
SECTION 8.05. Obligations of Company Unconditional.
Nothing contained in this Article Eight or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Company and the
Holders of the Notes, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the
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Notes the principal of and interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Notes and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Holder of any Note or the Trustee on
their behalf from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Eight of the holders of the Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article Eight shall restrict the right of the Trustee or the Holders of
Notes to take any action to declare the Notes to be due and payable prior to
their stated maturity pursuant to Section 6.01 or to pursue any rights or
remedies hereunder; provided, however, that all Senior Indebtedness then due and
payable shall first be paid in full in cash before the Holders of the Notes or
the Trustee are entitled to receive any direct or indirect payment from the
Company of principal of or interest on the Notes.
SECTION 8.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Eight. Unless the Trustee has failed to give notice of its change of
address pursuant to Section 13.02 hereof, the Trustee shall not be charged with
knowledge of the existence of any event of default with respect to any Senior
Indebtedness or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
Officer of the Company, or by a holder of Senior Indebtedness or trustee or
agent therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 8.06 at least two Business Days prior to the date
upon which by the terms of this Indenture any moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, regardless of anything herein
to the contrary, the Trustee shall have full power and authority to receive any
moneys from the Company and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date. Nothing contained in this Section
8.06 shall limit the right of the holders of Senior Indebtedness to recover
payments as contemplated by Section 8.03 or from any Holder under Section
8.02(b). The Trustee shall be entitled to conclusively rely on the delivery to
it of a written notice by a Person representing himself or itself to be a holder
of any Senior Indebtedness (or a trustee on behalf of, or agent or other
representative of, such holder) to estab-
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lish that such notice has been given by a holder of such Senior Indebtedness or
a trustee or agent or representative on behalf of any such holder. A holder of
Senior Indebtedness and any trustee, agent or other representative on behalf of
such holder shall be entitled to deliver all notices required by this Section
8.06 or otherwise pursuant to this Article Eight to the address of the Trustee
set forth herein unless such holder or the trustee, agent or representative of
such holder shall have received actual written notice of a change of address of
the Trustee.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Eight, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Eight, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities referred to
in this Article Eight, the Trustee and the Holders of the Notes shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up, liquidation
or reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Eight.
SECTION 8.08. Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article Eight with respect to any Senior Indebtedness which
may at any time be held by it in its individual or any other capacity to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Eight, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be
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deemed to owe any fiduciary duty to the holders of Senior Indebtedness (except
as provided in Sections 8.02(b) and 8.03(b)). The Trustee shall not be liable to
any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Notes or to the Company or to any other person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Eight or otherwise.
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with or
by any matter or thing referred to in the second paragraph of Section 8.16. The
provisions of this Article Eight are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
SECTION 8.10. Holders Authorize Trustee To Effectuate Subordination of Notes.
Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eight, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its or his Notes
in the form required in those proceedings.
SECTION 8.11. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Eight shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (1), (2) or (3) of Section 6.01.
SECTION 8.12. Trustee's Compensation and Rights to Indemnification Not
Prejudiced.
Nothing in this Article Eight shall apply to amounts due to the
Trustee, or its rights to indemnification, pursuant to other sections in this
Indenture.
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SECTION 8.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article Eight or the obligations
hereunder of the Holders of the Notes to the holders of Senior Indebtedness, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew, alter or amend, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for
Holders; Payments May Be Paid Prior to Dissolution.
All money and United States Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Article Nine when permitted
pursuant to Article Eight shall be for the sole benefit of the Holders and shall
not be subject to this Article Eight.
Nothing contained in this Article Eight or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Section
8.02, from making payments of principal of and interest on the Notes or from
depositing with the Trustee any moneys for such payments or from effecting a
termination of the Company's and the Guarantors' obligations under the Notes and
this Indenture as provided in Article Nine, or (ii) the application by the
Trustee of any moneys deposited with it for the purpose of making such payments
of principal of and interest on the Notes, to the holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
becomes due and payable, the Trustee shall have received the written notice
provided for in Section 8.02(b) or in Section 8.06. The Company shall give
prompt written notice to the Trustee of any dissolution, winding-up, liquidation
or reorganization of the Company.
SECTION 8.15. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify holders of the Senior Indebtedness of the
acceleration.
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ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Company's and Guarantors' Obligations.
Subject to the provisions of Article Eight, this Indenture will be
discharged and the Company's and the Guarantors' substantive obligations in
respect of the Notes will cease when: (1) either (A) all Notes theretofore
authenticated and delivered have been delivered to the Trustee for cancellation
or (B) all Notes not previously delivered to the Trustee for cancellation (i)
have become due and payable, (ii) will become due and payable at their Stated
Maturity within one year or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense of, the Company; and
(2) the Company has deposited or caused to be deposited with the Trustee, in
trust for the benefit of the holders of the Notes, all sums payable by it on
account of principal of, premium, if any, and interest on all Notes (except
lost, stolen or destroyed Notes which have been replaced or paid) or otherwise,
together with irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at the Stated Maturity or redemption
date, as the case may be by delivering all outstanding Notes to the Trustee for
cancellation and paying all sums payable by it on account of principal of and
interest on all Notes or otherwise. In addition to the foregoing, subject to the
provisions of Article Eight with respect to the creation of the defeasance trust
provided for in the following clause (1), provided that no Default or Event of
Default has occurred and is continuing or would arise therefrom (or, with
respect to a Default or Event of Default specified in Sections 6.01(10) or (11),
occurs at any time on or prior to the 91st calendar day after the date the
Company deposits with the Trustee all sums payable by it on account of principal
of, premium, if any, and interest on all Notes or otherwise (it being understood
that this condition shall not be deemed satisfied until after such 91st day))
and provided that no default under any Senior Indebtedness would result
therefrom, the Company may terminate its and the Guarantors' substantive
covenant obligations in respect of Article Four (other than Sections 4.01, 4.02
and 4.07) and Article Five hereof and any Event of Default specified in Section
6.01(4) or (5) by (1) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or United States Government Obligations
sufficient to pay all remaining Indebtedness on the Notes, (2) delivering to the
Trustee either an Opinion of Counsel or a ruling directed to the Trustee from
the Internal Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and termination of obligations and (3) delivering to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating compliance with all
conditions precedent provided for herein. In addition, subject to the provisions
of Article Eight with respect to the creation of the defeasance trust provided
for in the following clause (1), provided that no Default or Event of Default
has
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occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Sections 6.01(8) or (9), occurs at any
time on or prior to the 91st calendar day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 91st day)) and provided that no default under any Senior Indebtedness would
arise therefrom, the Company may terminate all of its and the Guarantors'
substantive covenant obligations in respect of the Notes (including its
obligations to pay the principal of, premium, if any, and interest on the Notes
and the Guarantors' Guaranty thereof) by (1) depositing with the Trustee, under
the terms of an irrevocable trust agreement, money or United States Government
Obligations sufficient to pay all remaining Indebtedness on the Notes, (2)
delivering to the Trustee either a ruling directed to the Trustee from the
Internal Revenue Service to the effect that the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and termination of obligations or an Opinion of Counsel addressed
to the Trustee based upon such a ruling or based on a change in the applicable
Federal tax law since the date of this Indenture to such effect and (3)
delivering to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating compliance with all conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.13, 4.01 (but not with
respect to termination of substantive obligations pursuant to the third sentence
of the foregoing paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until
the Notes are no longer outstanding. Thereafter the Company's obligations in
Sections 7.07, 9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to this Section 9.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Notes.
SECTION 9.02. Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of, premium,
if any, and interest on the Notes.
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SECTION 9.03. Repayment to Company.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Company upon written request any excess money held by it at any time. The
Trustee shall pay to the Company upon written request any money held by it for
the payment of principal, premium, if any, or interest that remains unclaimed
for two years; provided, however, that the Trustee before being required to make
any payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that, after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Holders entitled to
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease. In
the absence of a written request from the Company to return unclaimed funds to
the Company, the Trustee shall from time to time, after giving the Company at
least 60 day's prior written notice, deliver all unclaimed funds to or as
directed by applicable escheat authorities, as determined by the Trustee in its
sole discretion, in accordance with the customary practices and procedures of
the Trustee. Any unclaimed funds held by the Trustee or any Paying Agent
pursuant to this Section 9.03 shall be held uninvested and without any liability
for interest.
SECTION 9.04. Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 9.01 until such time as the Trustee is permitted to apply all such money
or United States Government Obligations in accordance with Section 9.01;
provided, however, that if the Company has made any payment of interest or
premium on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or United States Government
Obligations held by the Trustee.
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a resolution of its
Boards of Directors, and the Trustee may amend or supplement this Indenture or
the Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) comply with the provisions of Sections 5.01 and 4.19;
(c) comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA;
(d) evidence and provide for the acceptance of appointment by a
successor Trustee;
(e) provide for uncertificated Notes in addition to certificated
Notes; or
(f) make any change that, in the good faith opinion of the Board of
Directors of the Company, would provide any additional benefit or rights to
the Holders or that does not adversely affect the rights of any Holder.
SECTION 10.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Guarantors, when
authorized by a resolution of its Boards of Directors, and the Trustee may amend
or supplement this Indenture or the Notes with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes). Subject to Section 6.07, the Holders of a majority in
aggregate principal amount of the outstanding Notes may waive compliance by the
Company or any Guarantor with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may not:
(a) change the maturity of the principal of or any installment of
interest on any such Note or alter the optional redemption or repurchase
provisions of any such Note or this Indenture in a manner adverse to the
Holders of the Notes;
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(b) reduce the principal amount of (or the premium on) any such Note;
(c) reduce the rate of or extend the time for payment of interest on
any such Note;
(d) change the currency of payment of principal of (or premium on) or
interest on any such Note;
(e) impair the right of the Holders of Notes to institute suit for the
enforcement of any payment on or with respect to any such Note;
(f) reduce the percentage of the principal amount of outstanding Notes
necessary for amendment to or waiver of compliance with any provision of
this Indenture or the Notes or for waiver of any Default or Event of
Default in respect thereof;
(g) waive a default in the payment of the principal of, interest on,
or redemption payment with respect to, the Notes (except a rescission of
acceleration of the Notes by the Holders as provided in Section 6.02 and a
waiver of the payment default that resulted from such acceleration);
(h) modify the ranking or priority of any Note or modify the
definition of Senior Indebtedness or amend or modify any of the provisions
of Article Eight in any manner adverse to the Holders of the Notes;
(i) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture otherwise in accordance with this Indenture.
An amendment under this Section 10.02 may not make any change under
Article Eight or Article Twelve hereof that adversely affects in any material
respect the rights of any holder of Senior Indebtedness or Guarantor Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness or
Guarantor Senior Indebtedness (or any representative thereof authorized to give
a consent) shall have consented to such change.
It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. The Trustee shall not be responsible for or obligated to
prepare any description of any such proposed amendment, supplement or waiver
submitted to Holders by the Company.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or
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any defect therein, shall not, however, in any way impair or affect the validity
of any such amendment, supplement or waiver.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Subject
to the following paragraph, any such Holder or subsequent Holder may revoke the
consent as to such Holder's Note or portion of such Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Notes entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders of Notes at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Notes after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (i) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 10.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Fail-
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ure to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Company and
the Guarantors, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTY
SECTION 11.01. Unconditional Guaranty.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each, a "Guaranty" or "Note Guarantee") to each Holder of a Note
authenticated by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder, that: (a) the principal of and
interest on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Notes and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Notes will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed 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 any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the
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Notes with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that the Note
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture, and this Note Guarantee.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purpose of this Guaranty, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any acceleration of
such obligations as provided in Article Six, such obligations (whether or not
due and payable) shall forth become due and payable by each Guarantor for the
purpose of this Note Guarantee.
SECTION 11.02. Severability.
In case any provision of this Note Guarantee shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Subsidiary Guarantor.
If the Notes are defeased in accordance with the terms of this
Indenture, or if Section 5.01 is complied with, or if, subject to the
requirements of Section 5.01, all or substantially all of the assets of any
Subsidiary Guarantor or all of the Equity Interests of any Subsidiary Guarantor
are sold (including by issuance or otherwise) by the Company in a transaction
constituting an Asset Sale and (x) the Net Cash Proceeds from such Asset Sale
are used in accordance with Section 4.05 or (y) the Company delivers to the
Trustee an Officers' Certificate to the effect that the Net Cash Proceeds from
such Asset Sale shall be used in accordance with Section 4.05 and within the
time limits specified by Section 4.05, then each Subsidiary Guarantor (in the
case of defeasance) or such Subsidiary Guarantor (in the case of compliance with
Section 5.01(b) or in the event of a sale or other disposition of all of the
Equity Interests of such Subsidiary Guarantor) or the corporation acquiring such
assets (in the event of a sale or other disposition of all or substantially all
of the assets of such Subsidiary
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Guarantor) shall be released and discharged from all obligations under this
Article Eleven without any further action required on the part of the Trustee or
any Holder. The Trustee shall, at the sole cost and expense of the Company and
upon receipt at the reasonable request of the Trustee of an Opinion of Counsel
that the provisions of this Section 11.03 have been complied with, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 11.03. Any Subsidiary Guarantor not so released shall remain
liable for the full amount of principal of and interest on the Notes and the
other obligations of the Company hereunder as provided in this Article Eleven.
Any Subsidiary Guarantor that is designated an Unrestricted Subsidiary
pursuant to and in accordance with Section 4.17 shall upon such Designation be
released and discharged of its Note Guarantee obligations in respect of this
Indenture and the Notes and any Unrestricted Subsidiary (other than a Foreign
Subsidiary) whose Designation is revoked pursuant to Section 4.17 will be
required to become a Subsidiary Guarantor in accordance with Section 4.19.
If any Subsidiary Guarantor is released or discharged from its
guarantee under the Senior Credit Facility or is otherwise no longer a guarantor
under the Senior Credit Facility, such Subsidiary Guarantor shall be released
and discharged of its Note Guarantee obligations in respect of this Indenture
and the Notes without any action required on the part of the Trustee or any
Holder of Notes.
SECTION 11.04. Limitation of Subsidiary Guarantors' Liability.
Each Subsidiary Guarantor, and by its acceptance hereof and of the
Notes, each Holder and the Trustee hereby confirms that it is the intention of
all such parties that the Note Guarantee by such Subsidiary Guarantor pursuant
to its Note Guarantee not constitute a fraudulent transfer or conveyance for
purposes of title 11 of the United States Code, as amended, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
U.S. federal or state or other applicable law. To effectuate the foregoing
intention, the Trustee, the Holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of such Subsidiary Guarantor under its
Note Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including any Senior Indebtedness incurred after the Issue Date) and
after giving effect to any collections from or payments made by or on behalf of
any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Note Guarantee or pursuant to Section 11.05,
result in the obligations of such Subsidiary Guarantor under its Note Guarantee
not constituting such a fraudulent transfer or conveyance.
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SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the Note
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.04, for all payments, damages and expenses incurred by such
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Guarantor's obligations with respect to the Guaranty.
SECTION 11.06. Execution of Note Guarantee.
To further evidence their Note Guarantee to the Holders, each of the
Guarantors hereby agree to execute a Note Guarantee to be endorsed on each Note
ordered to be authenticated and delivered by the Trustee. Each Guarantor hereby
agrees that its Note Guarantee set forth in Section 11.01 shall remain in full
force and effect notwithstanding any failure to endorse on each Note a Note
Guarantee. Each such Note Guarantee shall be signed on behalf of each Guarantor
by its Chairman of the Board, its President or one of its Vice Presidents prior
to the authentication of the Note on which it is endorsed, and the delivery of
such Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Note Guarantee on behalf of such Guarantor. Such
signature upon the Note Guarantee may be manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the Note Guarantee, and
in case such officer who shall have signed the Note Guarantee shall cease to be
such officer before the Note on which such Note Guarantee is endorsed shall have
been authenticated and delivered by the Trustee or disposed of by the Company,
such Note nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the Note Guarantee had not ceased to be such
officer of such Guarantor.
SECTION 11.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guaranty or this Indenture, including, without limitation,
any right of subrogation, shall be subject and subordinate to, and no payment
with respect to any such claim of such Guarantor shall be made before, the
payment in full in cash of all outstanding Notes in accordance with the
provisions provided therefor in this Indenture.
SECTION. 11.08 Release of the Note Guarantee of Allergan.
The Note Guarantee of Allergan shall be released and discharged
without any further action required on the part of the Trustee or any Holder on
the Distribution Date. The
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Trustee shall, at the sole cost and expense of the Company, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by such Officers' Certificate.
ARTICLE TWELVE
SUBORDINATION OF GUARANTY
SECTION 12.01. Guaranty Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and the Trustee and each Holder
of the Notes by his acceptance thereof likewise covenant and agree, that the
Guaranty of such Guarantor shall be issued subject to the provisions of this
Article Twelve; and each person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that all
payments of the principal of and interest on the Notes pursuant to the Guaranty
made by or on behalf of any Guarantor shall, to the extent and in the manner set
forth in this Article Twelve, be subordinated and junior in right of payment to
the prior payment in full in cash of all amounts payable under Guarantor Senior
Indebtedness of such Guarantor.
SECTION 12.02. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities), upon any
dissolution or winding-up or total liquidation or reorganization of such
Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Guarantor Senior Indebtedness of such
Guarantor shall first be paid in full in cash before the Holders of the Notes or
the Trustee on behalf of such Holders shall be entitled to receive any payment
by such Guarantor of the principal of, premium, if any, or interest on the Notes
pursuant to such Guarantor's Guaranty, or any payment to acquire any of the
Notes for cash, property or securities, or any distribution with respect to the
Notes of any cash, property or securities (excluding any payment or distribution
of Permitted Junior Securities). Before any payment may be made by, or on behalf
of, any Guarantor of the principal of, premium, if any, or interest on the Notes
upon any such dissolution or winding-up or total liquidation or reorganization,
any payment or distribution of assets or securities of such Guarantor of any
kind or character, whether in cash, property or securities (excluding any
payment or distribution of Permitted Junior Securities), to which the Holders of
the Notes or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in
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bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Guarantor Senior Indebtedness of
such Guarantor (pro rata to such holders on the basis of the respective amounts
of such Guarantor Senior Indebtedness held by such holders) or their
representatives or to the trustee or trustees or agent or agents under any
agreement or indenture pursuant to which any of such Guarantor Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Guarantor Senior Indebtedness in full in
cash after giving effect to any prior or concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of any Guarantor of any kind or character, whether in cash,
property or securities (excluding any payment or distribution of Permitted
Junior Securities), shall be received by the Trustee or any Holder of Notes at a
time when such payment or distribution is prohibited by Section 12.02(a) and
before all obligations in respect of the Guarantor Senior Indebtedness of such
Guarantor are paid in full in cash, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Guarantor Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of such Guarantor Senior
Indebtedness held by such holders) or their respective representatives, or to
the trustee or trustees or agent or agents under any indenture pursuant to which
any of such Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of such
Guarantor Senior Indebtedness remaining unpaid until all such Guarantor Senior
Indebtedness has been paid in full in cash after giving effect to any prior or
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 12.03. Subrogation.
Upon the payment in full in cash of all Guarantor Senior Indebtedness
of a Guarantor, or provision for payment, the Holders of the Notes shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness to
receive payments or distributions of cash, property or securities of such
Guarantor made on such Guarantor Senior Indebtedness
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until the principal of and interest on the Notes shall be paid in full in cash;
and, for the purposes of such subrogation, no payments or distributions to the
holders of such Guarantor Senior Indebtedness of any cash, property or
securities to which the Holders of the Notes or the Trustee on their behalf
would be entitled except for the provisions of this Article Twelve, and no
payment over pursuant to the provisions of this Article Twelve to the holders of
such Guarantor Senior Indebtedness by Holders of the Notes or the Trustee on
their behalf shall, as between such Guarantor, its creditors other than holders
of such Guarantor Senior Indebtedness, and the Holders of the Notes, be deemed
to be a payment by such Guarantor to or on account of such Guarantor Senior
Indebtedness. It is understood that the provisions of this Article Twelve are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Notes, on the one hand, and the holders of Guarantor Senior
Indebtedness of each Guarantor, on the other hand.
If any payment or distribution to which the Holders of the Notes would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under Guarantor Senior Indebtedness, then and in
such case, the Holders of the Notes shall be entitled to receive from the
holders of such Guarantor Senior Indebtedness any payments or distributions
received by such holders of Guarantor Senior Indebtedness in excess of the
amount required to make payment in full in cash of such Guarantor Senior
Indebtedness.
SECTION 12.04. Obligations of Guarantors Unconditional.
Subject to Sections 11.04 and 8.02, nothing contained in this Article
Twelve or elsewhere in this Indenture or in the Notes or the Guaranties is
intended to or shall impair, as among each of the Guarantors and the Holders of
the Notes, the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders of the Notes the principal of and interest
on the Notes as and when the same shall become due and payable in accordance
with the terms of the Guaranty of such Guarantor, or is intended to or shall
affect the relative rights of the Holders of the Notes and creditors of any
Guarantor other than the holders of Guarantor Senior Indebtedness of such
Guarantor, nor shall anything herein or therein prevent the Holder of any Note
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Guarantor Senior Indebtedness
in respect of cash, property or securities of any Guarantor received upon the
exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article Twelve shall restrict the right of the Trustee or the Holders of
Notes to take any action to declare the Notes to be due and payable prior to
their stated maturity pursuant to Section 6.01 or to pursue any rights or
remedies hereunder; provided, however, that all Guarantor Senior Indebtedness of
any Guarantor then due and payable shall first be paid in full in cash before
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the Holders of the Notes or the Trustee are entitled to receive any direct or
indirect payment from such Guarantor of principal of or interest on the Notes
pursuant to such Guarantor's Guaranty.
SECTION 12.05. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company or any Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article Twelve. The Trustee shall not be charged with
knowledge of the existence of any event of default with respect to any Guarantor
Senior Indebtedness or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
Officer of the Company or such Guarantor, or by a holder of Guarantor Senior
Indebtedness or trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 12.05 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Note), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from any Guarantor and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 12.05 shall limit the right of the holders of
Guarantor Senior Indebtedness to recover payments as contemplated by Section
12.02. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any
Guarantor Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Guarantor Senior Indebtedness or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
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SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article Twelve, the Trustee and the Holders of the
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up, liquidation
or reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Guarantor Senior Indebtedness of such
Guarantor and other indebtedness of such Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Twelve.
SECTION 12.07. Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article Twelve with respect to any Guarantor Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee or any
Paying Agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Indebtedness (except as provided in Section 12.02(b)). The Trustee shall not be
liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Notes or to the Company or to any other person
cash, property or securities to which any holders of Guarantor Senior
Indebtedness shall be entitled by virtue of this Article Twelve or otherwise.
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with. The provisions of this Article Twelve are intended to
be for the benefit of, and shall be enforceable directly by, the holders of
Guarantor Senior Indebtedness.
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SECTION 12.09. Holders Authorize Trustee To Effectuate Subordination of
Guaranty.
Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its or his Notes in the form required in those proceedings.
SECTION 12.10. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Twelve shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (1), (2) or (3) of Section 6.01.
SECTION 12.11. Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve shall apply to amounts due to the
Trustee, its Lien under Section 7.07, or its right to indemnification, pursuant
to other sections in this Indenture.
SECTION 12.12. No Waiver of Guaranty Subordination Provisions.
Without in any way limiting the generality of Section 12.08, the
holders of Guarantor Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Notes to the holders of Guarantor
Senior Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Guarantor Senior Indebtedness or any instrument evidencing the same or any
agreement under which Guarantor Senior Indebtedness is outstanding or secured;
(b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Guarantor Senior Indebtedness; (c) release any
Person liable in any manner for the collection of Guarantor Senior Indebtedness;
and (d) exercise or refrain from exercising any rights against any Guarantor and
any other Person.
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SECTION 12.13. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Section 12.02, from making payments of principal of and interest on the
Notes, or from depositing with the Trustee any moneys for such payments, or (ii)
the application by the Trustee of any moneys deposited with it for the purpose
of making such payments of principal of and interest on the Notes, to the
holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have received
the written notice provided for in Section 12.06. The Guarantors shall give
prompt written notice to the Trustee of any dissolution, winding-up, liquidation
or reorganization of such Guarantor.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
If any provision hereof limits, qualifies or conflicts with any
provision of the TIA or another provision which is required or deemed to be
included in this Indenture by any of the provisions of the TIA, such provision
or requirement of the TIA shall control.
SECTION 13.02. Notices.
All notices and other communications from one party to the other
hereunder shall be in writing and shall be deemed to have been duly given if
mailed by first-class mail or by overnight courier to the address stated in this
Section. Notices to the Company or the Subsidiary Guarantors shall be directed
to it at Advanced Medical Optics, Inc., 0000 Xxxxxx Xxxxx, Xxxxxx, XX 00000,
Attention: General Counsel, with a copy to Xxxxxx & Xxxxxxx, 885
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Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx Xxxxxxxxxxx, Esq. Notices to
Allergan shall be directed to it at Allergan, Inc., 0000 Xxxxxx Xxxxx, Xxxxxx,
XX 00000, Attention: General Counsel, with a copy to Xxxxxx & Xxxxxxx, 000Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx Xxxxxxxxxxx, Esq. Notices to the
Trustee shall be directed to it at its Corporate Trust Office.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA (S) 310(b), TIA (S)
313(c), TIA (S) 314(a) and TIA (S) 315(b), shall be mailed to him at his address
as set forth on the Note Register and shall be sufficiently given to him if so
mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA (S) 313(c).
In case by reason of the suspension of regular mail service or by reason of any
other cause, it shall be impractical to mail notice of any event as required by
any provision of this Indenture, then any method of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other person shall have the protection of TIA (S)
312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
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(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.07. Governing Law, Submission to Jurisdiction and Time.
THIS INDENTURE AND THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF
THE COMPANY AND THE GUARANTORS, AND (BY THEIR ACCEPTANCE OF THE NOTES) THE
HOLDERS, HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW
YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE
RELATED TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR ANY MATTERS
CONTEMPLATED HEREBY OR THEREBY. EACH OF THE COMPANY AND THE GUARANTORS
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE CHOICE OF VENUE OF
ANY
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SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANY SUCH COURT AND ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT MAY BE ENFORCED IN ANY OTHER COURTS TO WHOSE JURISDICTION THE COMPANY
IS OR MAY BE SUBJECT, BY SUIT UPON JUDGMENT. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 13.08. Agent for Service; Waiver of Immunities.
By the execution and delivery of this Indenture, the Company and each
Guarantor (i) acknowledges that it has designated and appointed CT Corporation
System, a Delaware corporation (and any successor entity) (the "Process Agent")
as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Indenture and the Notes that may
be instituted in any federal or state court in the State of New York or brought
under federal or state securities laws, and acknowledges that the Agent has
accepted such designation, (ii) agrees that service of process upon the Process
Agent and written notices of said service by registered mail addressed to the
Company in accordance with the provisions of this Indenture shall be deemed
effective service of process upon the Company or such Guarantor in any such suit
or proceeding. The Company and each Guarantor further agrees to take any
reasonable action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of the Agent in full force and effect so long as any of the Notes
shall be outstanding; provided, however, that the Company and each Guarantor
may, by written notice to the Trustee, designate such additional or alternative
agent for service of process under this Section 13.08 that (i) maintains an
office located in the Borough of Manhattan, City of New York in the State of New
York (ii) is either (x) counsel for the Company or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 13.08. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for process in the Borough of Manhattan, City of New York, State of
New York. Upon the written request of any Holder, the Trustee shall deliver a
copy of such notice to such Holder. Notwithstanding the foregoing, there shall,
at all times, be at least one agent for service of process for the Company and
the Guarantors appointed and acting in accordance with this Section 13.08.
To the extent that the Company or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
Property, the Company hereby irrevocably waives such
-109-
immunity in respect of its obligations under this Indenture and the Notes, to
the extent permitted by law.
SECTION 13.09. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company, any Guarantor or any of its Affiliates, as such, shall have any
liability for any obligations of the Company or any Guarantor or any of its
Affiliates under the Notes, the Guaranty of such Guarantor or this Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. This waiver and release are part of the consideration for the
issuance of the Notes and the Guarantees.
SECTION 13.10. Successors.
All covenants and agreements of the Company in this Indenture and the
Notes shall bind its successors and permitted assigns. All covenants and
agreements of each Guarantor in this Indenture and such Guarantor's Guaranty
shall bind its successor. All covenants and agreements of the Trustee in this
Indenture shall bind its successors and permitted assigns.
SECTION 13.11. Counterpart Originals.
The parties may sign any number of copies of this Indenture and may do
so by telecopier. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 13.12. Severability.
In case any provision in this Indenture or in the Notes or in the
Guaranty shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.13. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
-110-
SECTION 13.14. Legal Holidays.
If a payment date is not a Business Day or not a business day at a
place of payment, payment may be made at that place on the next succeeding
Business Day, and no interest shall accrue for the intervening period.
[Signature Pages Follow]
-111-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
ADVANCED MEDICAL OPTICS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Vice President and
Chief Financial Officer
AMO HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Secretary
ALLERGAN, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Corporate Vice President and
Chief Financial Officer
S-1
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
S-2
EXHIBIT A
[FORM OF SERIES A NOTE]
[INSERT APPROPRIATE LEGENDS SET FORTH
IN EXHIBIT C OF THE INDENTURE TO WHICH
THIS FORM OF NOTE IS ATTACHED]
ADVANCED MEDICAL OPTICS, INC.
9 1/4% Senior Subordinated Note
due July 15, 2010 Series A
CUSIP No.: [____]
No. [__] $[____]
ADVANCED MEDICAL OPTICS, INC., a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received, promises to
pay to CEDE & CO. or registered assigns the principal sum of [______] on July
15, 2010.
Interest Payment Dates: January 15 and July 15, commencing on January
15, 2003.
Interest Record Dates: January 1 and July 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ADVANCED MEDICAL OPTICS, INC.
By:
------------------------------------
Name:
Title:
Dated: [__________]
A-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 9 1/4% Senior Subordinated Notes due July 15, 2010,
Series A, of Advanced Medical Optics, Inc. described in the within-mentioned
Indenture.
Dated: [_______]
[_____________], as Trustee
By:
-------------------------------------
Authorized Signatory
A-3
(REVERSE OF NOTE)
ADVANCED MEDICAL OPTICS, INC.
9 1/4% Senior Subordinated Note
due July 15, 2010, Series A
1. Interest.
ADVANCED MEDICAL OPTICS, INC., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above until the principal hereof is paid. Cash interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from June 20, 2002. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing January 15,
2003. Interest will be computed on the basis of a 360-day year of twelve 30-day
months and in the case of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal from time to time
on demand and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by the Notes
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Notes are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal, premium, if any, and interest
by wire transfer of federal funds (provided that the Paying Agent shall have
received wire instructions on or prior to the relevant Interest Record Date), or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York, as Trustee (the "Trustee"), will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act as Registrar.
A-4
4. Indenture and Guarantees.
The Company issued the Notes under an Indenture, dated as of June 20,
2002 (the "Indenture"), by and among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. This Note is one of a duly authorized issue of Notes
of the Company designated as its 9 1/4% Senior Subordinated Notes due 2010, (the
"Initial Notes"). Initial Notes in an aggregate principal amount of $200,000,000
were issued on June 20, 2002. The Notes include the Initial Notes and the
Exchange Notes (as defined below). The Notes are treated as a single class of
securities under the Indenture. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the United
States Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"),
as amended, as in effect on the date of the Indenture (except as otherwise
indicated in the Indenture) until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and holders of Notes are referred to the
Indenture and the TIA for a statement of them. The Notes are general unsecured
obligations of the Company. The Notes are subordinated in right of payment to
all Senior Indebtedness of the Company to the extent and in the manner provided
in the Indenture. Each Holder of a Note, by accepting a Note, agrees to such
subordination, authorizes the Trustee to give effect to such subordination and
appoints the Trustee as attorney-in-fact for such purpose.
Payment on the Notes is guaranteed (each, a "Guaranty"), on a senior
subordinated basis, jointly and severally, by each Restricted Subsidiary (other
than Foreign Subsidiaries) of the Company existing on the Issue Date (each, a
"Guarantor") pursuant to Article Eleven and Article Twelve of the Indenture. In
addition, the Indenture requires the Company to cause each Subsidiary other than
an existing Guarantor, an Unrestricted Subsidiary or a Foreign Subsidiary formed
or acquired after the Issue Date to become a party to the Indenture as a
Guarantor and guarantee payment on the Notes pursuant to Article Eleven and
Article Twelve of the Indenture; provided that Foreign Subsidiaries shall also
be required to be Guarantors to the extent such Foreign Subsidiaries guarantee
Indebtedness of the Company or of any Subsidiary which is not a Foreign
Subsidiary in a principal amount equal to or greater than $25.0 million in the
aggregate for all Foreign Subsidiaries. In certain circumstances, the Guaranties
may be released.
5. Optional Redemption.
The Notes will be redeemable at the option of the Company, in whole or
in part, at any time on or after July 15, 2006, at the redemption prices
(expressed as a percentage of principal amount) set forth below, plus accrued
and unpaid interest thereon, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the twelve-month
period beginning on July 15 of the years indicated below:
A-5
Redemption
Year Price
--- ----------
2006................................ 104.625%
2007................................ 103.083%
2008................................ 101.542%
2009 and thereafter................. 100.000%
6. Optional Redemption upon Public Equity Offering.
In addition, at any time and from time to time on or prior to July 15,
2005, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of the Notes (calculated after giving effect to the
original issuance of Additional Notes, if any) with the net cash proceeds from
one or more Public Equity Offerings, at a redemption price in cash equal to
109.250% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Notes (calculated after giving effect to the
original issuance of Additional Notes, if any) must remain outstanding
immediately after giving effect to each such redemption (excluding any Notes
held by the Company or any of its Affiliates). Notice of any such redemption
must be given within 90 days after the date of the closing of the relevant
Public Equity Offering.
7. Special Mandatory Redemption.
If for any reason the Distribution Date has not occurred on or prior
to July 31, 2002 (an "Event of Failure"), the Company will be required to redeem
all of the Notes pursuant to a Special Mandatory Redemption at a redemption
price in cash equal to 101% of the aggregate principal amount of the Notes plus
accrued and unpaid interest thereon, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), which will be no later than 10 days
after an Event of Failure. A Failure by the Company to make a Special Mandatory
Redemption when required to do so will constitute an Event of Default under the
Indenture.
8. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Notes that have denominations
equal to or larger than $1,000 principal amount. Notes and portions of them the
Trustee so selects shall be in amounts of $1,000 principal amount or integral
multiples thereof.
A-6
If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption so long
as the Company has deposited with the Paying Agent for the Notes funds in
satisfaction of the applicable redemption price pursuant to the Indenture and
the Paying Agent is not prohibited from paying such funds to the Holders
pursuant to the terms of the Indenture.
9. Change of Control Offer.
In the event of the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Company shall notify
the Holders of the Notes of such occurrence in the manner prescribed by the
Indenture and shall, within 30 days after the Change of Control Date (or, at the
Company's option, prior to such Change of Control Date), make an Offer to
Purchase all Notes then outstanding, and shall purchase all Notes validly
tendered, at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date); provided, however, that any Offer to Purchase made prior to any Change of
Control Date shall be made only in the reasonable anticipation of such Change of
Control; and provided, further, that the Company shall not purchase any Notes
tendered pursuant to such Offer to Purchase if such Change of Control does not
occur.
10. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an
Offer to Purchase Notes at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the Interest
Relevant Record Date to receive interest due on the relevant Interest Payment
Date) with the proceeds of certain asset dispositions.
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Notes or portions thereof
selected for redemption, except the unredeemed portion of any Note being
redeemed in part.
A-7
12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it
for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to the Company
at its written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Company and the Guarantors may be discharged from its obligations
under the Indenture and the Notes and the Guarantees, except for certain
provisions thereof, and may be discharged from obligations to comply with
certain covenants contained in the Indenture and the Notes and the Guarantees,
in each case upon satisfaction of certain conditions specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Notes and the
Guarantees may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Notes and the Guarantees to, among other things, cure any
ambiguity, defect or inconsistency in the Indenture, provide for uncertificated
Notes in addition to certificated Notes, comply with any requirements of the SEC
in connection with the qualification of the Indenture under the TIA, or make any
change that does not adversely affect the rights of any Holder of a Note.
16.Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, incur indebtedness, create liens, make investments, sell
assets, declare or pay dividends or other distributions to shareholders,
consolidate, merge or transfer all or substantially all of its assets, or engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must report annually to the
Trustee on compliance with such limitations.
A-8
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then outstanding
may declare the unpaid principal of (and premium, if any) and accrued and unpaid
interest on all the outstanding Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture, the Notes or the Guarantees except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture, the Notes or
the Guarantees unless it has received indemnity satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of certain continuing Defaults or Events of Default if
it determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it were not
the Trustee, subject to certain exceptions.
19. No Recourse Against Others.
No past, present or future director, officer, employee, incorporator,
or stockholder, of the Company or any of its Affiliates, as such, shall have any
liability for any obligation of the Company or any Guarantor or any of its
Affiliates under the Notes, the Guaranty of such Guarantor or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes and the Guarantees.
20. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
A-9
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for an 9 1/4% Senior Subordinated Note due 2010, Series B, of the Company
(an "Exchange Note") which has been registered under the Securities Act, in like
principal amount and having terms identical in all material respects to the
Initial Notes except (x) for the transfer restrictions relating to the Notes,
(y) the provisions relating to an increase in the rate of interest discussed in
the following sentence and (z) interest thereon will accrue from the last date
interest was paid on the Notes or, if no interest has been paid, from the Issue
Date. Holders of the Initial Notes shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
A-10
[FORM OF NOTE GUARANTY]
SENIOR SUBORDINATED GUARANTY
The Guarantor (as defined in the Indenture referred to in the Note
upon which this notation is endorsed) hereby unconditionally guarantees on a
senior subordinated basis (such guaranty by the Guarantor being referred to
herein as the "Guaranty") the due and punctual payment of the principal of,
premium, if any, and interest on the Notes, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue principal,
premium and interest on the Notes, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Eleven of the Indenture.
The obligations of the Guarantor to the Holders of Notes and to the
Trustee pursuant to the Guaranty and the Indenture are expressly set forth, and
are expressly subordinated and subject in right of payment to the prior payment
in full of all Guarantor Senior Indebtedness (as defined in the Indenture) of
such Guarantor, to the extent and in the manner provided in Article Eleven and
Article Twelve of the Indenture, and reference is hereby made to such Indenture
for the precise terms of the Guaranty therein made.
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Note
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
This Note Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This Note Guarantee is subject to release upon the terms set forth in
the Indenture.
AMO HOLDINGS, LLC
By:
---------------------------------
Name:
Title:
ALLERGAN, INC.
By:
---------------------------------
Name:
Title:
[_____________]
By:
---------------------------------
Name:
Title:
ASSIGNMENT FORM
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
-------------------
-------------------------------
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
-------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [______]
Section 4.14 [______]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $
-------------
Dated: Signed:
-------------------
-------------------------------
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
--------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the United
States Securities Exchange Act of 1934, as amended.
[IF APPLICABLE, INSERT TEXT SET FORTH ON EXHIBIT F OF THE INDENTURE TO WHICH
THIS FORM OF NOTE IS ATTACHED]
EXHIBIT B
[FORM OF SERIES B NOTE]
[IF APPLICABLE, INSERT THE LEGEND SET FORTH UNDER
THE HEADING "FORM OF LEGEND FOR GLOBAL
NOTES" IN EXHIBIT C OF THE INDENTURE TO WHICH
THIS FORM OF NOTE IS ATTACHED]
ADVANCED MEDICAL OPTICS, INC.
9 1/4% Senior Subordinated Note
due July 15, 2010, Series B
CUSIP No.: [__]
No. [__] $[__]
ADVANCED MEDICAL OPTICS, INC., a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received, promises to
pay to CEDE & CO. or registered assigns the principal sum of [____], on July 15,
2010.
Interest Payment Dates: January 15 and July 15, commencing on January
15, 2003.
Interest Record Dates: January 1 and July 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
B-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ADVANCED MEDICAL OPTICS, INC.
By:
-------------------------
Name:
Title:
Dated: [________]
B-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 9 1/4% Senior Subordinated Notes due July 15, 2010,
Series B, of Advanced Medical Optics, Inc. described in the within-mentioned
Indenture.
Dated: [________]
[__________________], as Trustee
By:
--------------------
Authorized Signatory
B-3
(REVERSE OF NOTE)
ADVANCED MEDICAL OPTICS, INC.
9 1/4% Senior Subordinated Note
due July 15, 2010, Series B
1. Interest.
ADVANCED MEDICAL OPTICS, INC., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above until the principal hereof is paid. Cash interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from June 20, 2002. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing January 1,
2003. Interest will be computed on the basis of a 360-day year of twelve 30-day
months and in the case of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal from time to time
on demand and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by the Notes.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Notes are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal, premium, if any, and interest
by wire transfer of federal funds (provided that the Paying Agent shall have
received wire instructions on or prior to the relevant Interest Record Date), or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York, as Trustee (the "Trustee"), will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act as Registrar.
B-4
4. Indenture and Guarantees.
The Company issued the Notes under an Indenture, dated as of June 20,
2002 (the "Indenture"), by and among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. Notes in an aggregate principal amount of $200,000,000
were issued on June 20, 2002 (such Notes, the "Initial Notes"). This Note is one
of a duly authorized issue of Notes of the Company designated as its 9 1/4%
Senior Subordinated Notes due 2010, Series B (the "Exchange Notes"). Exchange
Notes in an aggregate principal amount of $[__] are being issued on the date
hereof in exchange for Initial Notes pursuant to the Registration Rights
Agreement. Additional Notes may be issued subject to Section 4.04 of the
Indenture. The Notes include the Initial Notes, the Private Exchange Notes (as
defined in the Indenture), the Exchange Notes, other Unrestricted Notes (as
defined in the Indenture) and any Additional Notes (as defined in the
Indenture). The Notes are treated as a single class of securities under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the United States Trust
Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as amended,
as in effect on the date of the Indenture (except as otherwise indicated in the
Indenture) until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Notes are subject
to all such terms, and holders of Notes are referred to the Indenture and the
TIA for a statement of them. The Notes are general unsecured obligations of the
Company. The Notes are subordinated in right of payment to all Senior
Indebtedness of the Company to the extent and in the manner provided in the
Indenture. Each Holder of a Note, by accepting a Note, agrees to such
subordination, authorizes the Trustee to give effect to such subordination and
appoints the Trustee as attorney-in-fact for such purpose.
Payment on the Notes is guaranteed (each, a "Guaranty"), on a senior
subordinated basis, jointly and severally, by each Restricted Subsidiary (other
than Foreign Subsidiaries) of the Company existing on the Issue Date (each, a
"Guarantor") pursuant to Article Eleven and Article Twelve of the Indenture. In
addition, the Indenture requires the Company to cause each Subsidiary other than
an existing Guarantor, an Unrestricted Subsidiary or a Foreign Subsidiary formed
or acquired after the Issue Date to become a party to the Indenture as a
Guarantor and guarantee payment on the Notes pursuant to Article Eleven and
Article Twelve of the Indenture; provided that Foreign Subsidiaries shall also
be required to be Guarantors to the extent such Foreign Subsidiaries guarantee
Indebtedness of the Company or of any Subsidiary which is not a Foreign
Subsidiary in a principal amount equal to or greater than $25.0 million in the
aggregate for all Foreign Subsidiaries. In certain circumstances, the Guaranties
may be released.
B-5
5. Optional Redemption.
The Notes will be redeemable at the option of the Company, in whole or
in part, at any time on or after July 15, 2006, at the redemption prices
(expressed as a percentage of principal amount) set forth below, plus accrued
and unpaid interest thereon, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the twelve-month
period beginning on July 15 of the years indicated below:
Redemption
Year Price
---------------------- ----------
2006.................. 104.625%
2007.................. 103.083%
2008.................. 101.542%
2009 and thereafter... 100.000%
6. Optional Redemption upon Public Equity Offering.
In addition, at any time and from time to time on or prior to July 15,
2005, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of the Notes (calculated after giving effect to the
original issuance of Additional Notes, if any) with the net cash proceeds from
one or more Public Equity Offerings, at a redemption price in cash equal to
109.250% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Notes (calculated after giving effect to the
original issuance of Additional Notes, if any) must remain outstanding
immediately after giving effect to each such redemption (excluding any Notes
held by the Company or any of its Affiliates). Notice of any such redemption
must be given within 90 days after the date of the closing of the relevant
Public Equity Offering.
7. Special Mandatory Redemption.
If for any reason the Distribution Date has not occurred on or prior
to July 31, 2002 (an "Event of Failure"), the Company will be required to redeem
all of the Notes pursuant to a Special Mandatory Redemption at a redemption
price in cash equal to 101% of the aggregate principal amount of the Notes plus
accrued and unpaid interest thereon, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), which will be no later than 10 days
after an Event of Failure. A Failure by the Company to make a Special Mandatory
Redemption when required to do so will constitute an Event of Default under the
Indenture.
B-6
8. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Notes that have denominations
equal to or larger than US$1,000 principal amount. Notes and portions of them
the Trustee so selects shall be in amounts of US$1,000 principal amount or
integral multiples thereof.
If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption so long
as the Company has deposited with the Paying Agent for the Notes funds in
satisfaction of the applicable redemption price pursuant to the Indenture and
the Paying Agent is not prohibited from paying such funds to the Holders
pursuant to the terms of the Indenture.
9. Change of Control Offer.
In the event of the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Company shall notify
the Holders of the Notes of such occurrence in the manner prescribed by the
Indenture and shall, within 30 days after the Change of Control Date (or, at the
Company's option, prior to such Change of Control Date), make an Offer to
Purchase all Notes then outstanding, and shall purchase all Notes validly
tendered, at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date); provided, however, that any Offer to Purchase made prior to any Change of
Control Date shall be made only in the reasonable anticipation of such Change of
Control; and provided, further, that the Company shall not purchase any Notes
tendered pursuant to such Offer to Purchase if such Change of Control does not
occur.
10. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an
Offer to Purchase Notes at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the Interest
Relevant Record Date to receive interest due on the relevant Interest Payment
Date) with the proceeds of certain asset dispositions.
B-7
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
US$1,000 and integral multiples of US$1,000. A Holder shall register the
transfer of or exchange Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portions
thereof selected for redemption, except the unredeemed portion of any Note being
redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it
for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to the Company
at its written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Company and the Guarantors may be discharged from its obligations
under the Indenture, the Notes and the Guarantees, except for certain provisions
thereof, and may be discharged from obligations to comply with certain covenants
contained in the Indenture, the Notes and the Guarantees, in each case upon
satisfaction of certain conditions specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Notes and the
Guarantees may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Notes and the Guarantees to, among other things, cure any
ambiguity, defect or inconsistency in the Indenture, provide for uncertificated
Notes in addition to certificated Notes, comply with any requirements of the SEC
in connection with the qualification of the Indenture under the TIA, or make any
change that does not adversely affect the rights of any Holder of a Note.
B-8
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, incur indebtedness, create liens, make investments, sell
assets, declare or pay dividends or other distributions to shareholders,
consolidate, merge or transfer all or substantially all of its assets, or engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must report annually to the
Trustee on compliance with such limitations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then outstanding
may declare the unpaid principal of (and premium, if any) and accrued and unpaid
interest on all the outstanding Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture, the Notes or the Guarantees except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture, the Notes or
the Guarantees unless it has received indemnity satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of certain continuing Defaults or Events of Default if
it determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it were not
the Trustee, subject to certain exceptions.
19. No Recourse Against Others.
No past, present or future director, officer, employee, incorporator,
or stockholder, of the Company or any of its Affiliates, as such, shall have any
liability for any obligation of the Company or any Guarantor or any of its
Affiliates under the Notes, the Guaranty of such Guarantor or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes and the Guarantees.
B-9
20. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
B-10
ASSIGNMENT FORM
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint --------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------- -------------------------------
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
--------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
B-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [_____]
Section 4.14 [_____]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: US$
---------
Dated: Your Signature:
-------------- -------------------------------
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
--------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the United
States Securities Exchange Act of 1934, as amended.
[IF APPLICABLE, INSERT TEXT SET FORTH ON EXHIBIT F OF THE INDENTURE TO WHICH
THIS FORM OF NOTE IS ATTACHED]
B-12
EXHIBIT C
[FORMS OF LEGENDS]
[FORM OF LEGEND FOR 144A NOTES AND REGULATION S NOTES]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION OUTSIDE THE UNITED STATES, (2) AGREES THAT IT WILL NOT PRIOR TO (X)
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR
THE LAST DAY ON WHICH EITHER THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE
OWNER OF THIS NOTE OR ANY PREDECESSOR OF THIS NOTE AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO ADVANCED
MEDICAL OPTICS, INC., (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF
C-1
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS "U.S. PERSON" AND
"OFFSHORE TRANSACTION" SHALL HAVE THE MEANINGS ASSIGNED TO THEM BY REGULATION S
UNDER THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
C-2
[FORM OF LEGEND FOR GLOBAL NOTES]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF
THE INDENTURE.
C-3
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 9 1/4% Senior Subordinated Notes due 2010
(the "Notes") of Advanced Medical Optics, Inc.
This Certificate relates to $_______ principal amount of Notes held in
the form of_____a beneficial interest in a Global Note or_________Physical Notes
by________(the "Transferor").
The Transferor:
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Physical Note or Physical Notes in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Note (or the portion thereof indicated above);
[ ] has directed in writing that the Registrar make, or direct the
Depository to make, an endorsement on the applicable Global Note to reflect an
increase in the aggregate amount of the Notes represented by the Global Note; or
[ ] has requested that the Registrar by written order to exchange or
register the transfer of a Physical Note or Physical Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Notes and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Notes does not require Registration under the United States
Securities Act of 1933, as amended (the "Act"), because*:
[ ] Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] Such Note is being transferred in reliance on Rule 144 under the
Act.
D-1
[ ] Such Note is being transferred in reliance on and in compliance
with an exemption from the Registration requirements of the Act other than Rule
144A. [An Opinion of Counsel to the effect that such transfer does not require
Registration under the Act accompanies this certification.]
--------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------
[Authorized Signatory]
Date:
----------------------
*Check applicable box.
D-2
EXHIBIT E
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
ADVANCED MEDICAL OPTICS, INC.
c/o [______________________]
Re: ADVANCED MEDICAL OPTICS, INC.
(the "Company") 9 1/4% Senior Subordinated
Notes due 2010 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) we are not a distributor of the Notes, an affiliate of the Company
or any such distributor or person acting on behalf of the foregoing;
(2) the offer of the Notes was not made to a person in the United
States or specifically targeted at an identifiable group of U.S. citizens
abroad;
(3) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(4) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(6) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------
[Authorized Signatory]
EXHIBIT F
Schedule A
EXCHANGES
AND PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Global Note for a like part of another
Global Note, of this Global Note for Physical Notes and purchases and
cancellations of a part of this Global Note have been made subsequent to the
original issuance of the Notes evidenced by this Global Note:
Part of principal amount of
this Global Note exchanged
for a like part of another Part of principal Aggregate principal amount
Global Note or vice versa or amount of this Global of this Global Note
of this Global Note for Note purchased or following such exchange or
Date made Physical Notes ($) canceled ($) purchase and cancellation ($)
-------- ------------------ ------------ -----------------------
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