Exhibit 1.1
EXECUTION VERSION
$550,000,000
OWENS & MINOR, INC.
$275,000,000 3.875% Senior Notes due 2021
$275,000,000 4.375% Senior Notes due 2024
UNDERWRITING AGREEMENT
September 11, 2014
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Wells Fargo Securities, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, North Carolina 28202
Dear Ladies and Gentlemen:
Owens &
Minor, Inc., a Virginia corporation (the “
Company
”), proposes, upon the terms and considerations set forth in this agreement (this “
Agreement
”), to issue and sell to the several Underwriters listed in Schedule 1
hereto (the “
Underwriters
”), for whom you are acting as the representatives (the “
Representatives
”) $275,000,000 in aggregate principal amount of its 3.875% Senior Notes due 2021 (the “
2021 Notes
”)
and $275,000,000 in aggregate principal amount of its 4.375% Senior Notes due 2024 (the “
2024 Notes
” and together with the 2021 Notes, the
“
Notes”). The Company’s obligations under the Notes, including the
payment of principal, premium, if any, and interest with respect to the Notes, will be unconditionally
guaranteed (the “
Guarantees
”) by Owens & Minor Distribution, Inc., a Virginia corporation, and Owens & Minor, Medical Inc., a Virginia corporation
(collectively, the “
Guarantors
”). The Notes and the Guarantees are hereinafter collectively called the “
Securities
.” The Securities will (i) have terms and provisions which are summarized in the Prospectus (as
defined below) dated as of the date hereof and (ii) are to be issued pursuant to an Indenture to be dated as of September 16, 2014 , as supplemented by the First Supplemental Indenture, to be dated as of September 16, 2014 (as
supplemented, the “
Indenture
”) to be entered into among the Company, the Guarantors and U.S. Bank National Association, as trustee (the “
Trustee
”). This Agreement is to confirm the agreement concerning the purchase
of the Securities from the Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company and the
Guarantors.
The Company and each of the Guarantors represents, warrants and agrees that:
(a) An “automatic shelf
registration statement” (as defined in Rule 405) on Form S-3 relating to the Securities (File No. 333-198635) (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the
“
Securities Act
”), and the rules and regulations (the “
Rules and Regulations
”) of the Securities and Exchange Commission (the “
Commission
”) thereunder; (ii) has been filed with the Commission
under the Securities Act not earlier than the date that is three years prior to the Closing Date (as defined in Section 4 hereof); and (iii) is effective under the Securities Act. Copies of such registration statement and any amendment
thereto have been delivered by the Company to the Representatives. As used in this Agreement:
(i) “
Applicable
Time
” means 5:15 p.m. (New York City time) on the date of this Agreement;
(ii) “
Effective Date
”
means any date as of which any part of such registration statement relating to the Securities became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations;
(iii) “
Issuer Free Writing Prospectus
” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Securities, including the final term sheet prepared pursuant to Section 5(a)(i) hereof and
attached to this Agreement as Schedule 2 (the “
Final Term Sheet
”);
(iv) “
Preliminary
Prospectus
” means any preliminary prospectus relating to the Securities included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the Representatives for use by
the Underwriters in relation to the Securities;
(v) “
Pricing Disclosure Package
” means, as of the
Applicable Time, the most recent Preliminary Prospectus and the Final Term Sheet, together with
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each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed
under Rule 433 of the Rules and Regulations;
(vi) “
Prospectus
” means the final prospectus relating to the
Securities, including any prospectus supplement thereto relating to the Securities, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “
Registration Statement
” means, collectively, the various parts of such registration statement, each as
amended as of the Effective Date for such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement, but excluding the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939 (the
“Trust Indenture Act”) of the Trustee and including the information deemed by virtue of Rule 430A, 430B or 430C under the Securities Act to be part of such registration statement as of the Effective Date.
Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “
most recent Preliminary Prospectus
” shall be
deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any documents incorporated by reference therein prior to or
on the date hereof). Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such
purpose has been instituted or threatened by the Commission. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement;
(b) The Company has been since the time of initial filing of the Registration Statement and continues to be a “well-known
seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date;
(c) Both before and after giving effect to the consummation of the transactions contemplated hereby, neither the Company nor
any Guarantor is or will be
3
required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as
amended (the “
Investment Company Act
”), and the rules and regulations of the Commission thereunder;
(d)
The Registration Statement conformed and will conform in all material respects on the Effective Date and on the Closing Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when
filed, to the requirements of the Securities Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) and on
the Closing Date to the requirements of the Securities Act and the Rules and Regulations. The documents incorporated by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when
filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder;
(e) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
that no representation or warranty is made as to information contained in or omitted from the Registration Statement in
reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 9(e);
(f) The Prospectus will not, as of its date and on the Closing Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 9(e);
(g) The documents incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(h) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no
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representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 9(e);
(i) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under
Rule 433) did not, and on the Closing Date will not, include any information that conflicts with the information in the Registration Statement or the Pricing Disclosure Package and, when considered together with the Pricing Disclosure Package as of
the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(j) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations on the date of first use, and the Company has complied with all prospectus delivery and filing requirements applicable to each such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus (other than the Final Term Sheet) without the prior written consent of the Representatives. Any Issuer Free Writing
Prospectus, the use of which as been consented to by the Representative, is listed on Schedule 2 hereto. The Company has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed
pursuant to the Rules and Regulations;
(k) [Reserved]
(l) Each of the Company and the Guarantors has been duly organized and is validly existing and in good standing as a
corporation under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its respective ownership or lease of property or
the conduct of its respective businesses requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (“
Material Adverse Effect
”), and have all power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form
10-K for the most recent fiscal year. None of the subsidiaries of the Company (other than Owens & Minor Distribution, Inc. and Owens & Minor Medical, Inc. (collectively, the “
Significant Subsidiaries
”)) is a
“significant subsidiary” (as defined in Rule 405);
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(m) The Company has an authorized capitalization as set forth in the Pricing
Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the issued shares of capital stock of each Guarantor
have been duly and validly authorized and issued and are fully paid and non-assessable and (except for directors’ qualifying shares and except as set forth in each of the Pricing Disclosure Package and the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and none of the outstanding shares of capital stock of the Company or any of its subsidiaries was issued in violation of the preemptive rights or similar
rights of any security holder of the Company or any of its subsidiaries, respectively;
(n) The Indenture has been duly and
validly authorized by the Company and the Guarantors, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms, except that the enforceability of the Company’s and the Guarantors’ obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); The
Indenture shall comply in all material respects with the requirements of the Trust Indenture Act;
(o) The Notes have been
duly and validly authorized by the Company and, when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Underwriters against payment therefor
in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their
terms, except that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights
generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(p) The Guarantees have been duly and validly authorized by the Guarantors and when the Indenture is duly executed and
delivered by the Guarantors and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the delivery of the Notes to the Underwriters against payment therefor in accordance with the terms hereof, will
constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except that the enforceability of the Guarantors’ obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law);
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(q) This Agreement has been duly authorized, executed and delivered by the
Company and the Guarantors;
(r) The execution, delivery and performance of this Agreement and the Indenture by the Company
and the Guarantors and the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the
Prospectus will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is required to be filed by the Company
with the Commission under Item 601 of Regulation S-K, (ii) the provisions of the articles of incorporation or bylaws of the Company or any of its subsidiaries or (iii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, in the case of clauses (i) and (iii), for such conflicts, breaches or violations that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(s) No consent, approval,
authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets is required for the execution, delivery and
performance of this Agreement or the Indenture by the Company or any Guarantor, the consummation of the transactions contemplated hereby by the Company and the Guarantors, or the application of the proceeds from the sale of the Securities as
described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Exchange Act or under applicable state or foreign securities laws or the rules of the Financial Industry Regulatory Authority, Inc.
(“
FINRA
”) in connection with the purchase and sale of the Securities by the Underwriters.
(t) There are
no contracts, agreements or understandings between the Company or the Guarantors and any person granting such person the right (other than rights which have been waived or satisfied) to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be owned by such person or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act;
(u) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, which
7
would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Disclosure Package and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries, except pursuant to the exercise of options or warrants or pursuant to the
issuance of common stock under the Company’s stock purchase plan, incentive plan, dividend reinvestment plan, stock option or incentive plans and except for any borrowing under the credit agreement, dated as of June 5, 2012, by and among
Owens & Minor Distribution, Inc., and Owens & Minor Medical, Inc., as borrowers, Owens & Minor, Inc. and certain of its domestic subsidiaries, as Guarantors, Wells Fargo Bank, N.A., as administrative agent, JPMorgan Chase
Bank, N.A. as Syndication Agent, and the lenders thereto (the “
Credit Agreement
”) in the ordinary course of business for working capital purposes, or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing
Disclosure Package and the Prospectus;
(v) The consolidated financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act
and present fairly the financial condition and results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting
principles (“
GAAP
”) applied on a consistent basis throughout the periods involved, except as otherwise stated therein and in the case of unaudited financial statements, if any, subject to year-end audit adjustments; the interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package has been prepared in accordance with the Commission’s rules and guidelines
applicable thereto;
(w) KPMG LLP, who have certified certain financial statements of the Company and its consolidated
subsidiaries, whose report appears in the Pricing Disclosure Package and the Prospectus or is incorporated by reference therein and who have delivered the initial letter referred to in Section 7(g) hereof, is an independent registered public
accounting firm as required by the Securities Act and the Rules and Regulations and is independent as required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported
contained or incorporated by reference in the Pricing Disclosure Package and the Prospectus;
(x) The Company and each
Guarantor have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects (except for taxes not yet due and
payable), except such as are described in the Pricing Disclosure Package and the Prospectus or such as do not materially affect the value of such property
8
or do not materially interfere with the use made and proposed to be made of such property by the Company and the Guarantors; and all real property and buildings held under lease by the Company
and the Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Guarantors or as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(y) The Company and each of
the Guarantors carry, or are covered by, insurance in such amounts and covering such risks as the Company believes is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries;
(z) The Company and each of the Guarantors own or possess
adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights and licenses necessary for the conduct of their respective businesses, except
where the failure to own or possess any such rights would not, individually or in the aggregate, have a Material Adverse Effect, and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received
any notice of any claim of conflict with, any such rights of others;
(aa) Except as described in the Pricing Disclosure
Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(bb) No relationship, direct or indirect, exists between or among the Company or any Guarantor on the one hand, and the
directors, officers, shareholders, customers or suppliers of the Company on the other hand, that would be required to be described in the Pricing Disclosure Package or the Prospectus which is not so described;
(cc) No labor disturbance by the employees of the Company or its subsidiaries exists or, to the knowledge of the Company, is
imminent that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(dd) (i)
Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“
ERISA
”)) for which the Company or any member of its “Controlled Group” (defined
as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “
Code
”)), would have any liability (each a
“
Plan
”) has been maintained in compliance in all material respects with its terms
9
and the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan subject to Title IV of ERISA (a) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur for which the Company and any member of its Controlled Group would have any liability, (b) no “accumulated funding
deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (c) the fair market value of the assets under each such Plan exceeds the
present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan) and (d) neither the Company nor any member of its Controlled Group has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of
ERISA); and (iii) each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter to the effect that the form of such Plan satisfies the requirements under Section 401(a) of
the Code and neither the Company nor any member of its Controlled Group has any reason to believe that anything has occurred, whether by action or by failure to act, which would adversely affect such qualification;
(ee) The Company and the Guarantors have filed all federal, state and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, other than those being contested in good faith, those for which reserves have been provided in accordance with GAAP, those currently payable without penalty or interest, or those the
nonpayment of which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; other than as described in the Pricing Disclosure Package and the Prospectus, no tax deficiency has been determined adversely
to the Company or any of its subsidiaries which has had (nor does the Company have any knowledge of) any tax deficiency which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect;
(ff) Since the date as of which information is given in the Pricing Disclosure Package through the date hereof,
and except as may otherwise be disclosed or contemplated in the Pricing Disclosure Package and the Prospectus, the Company has not (i) incurred any liability or obligation, direct or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock (other than the dividend declared on July 28,
2014);
(gg) The Company maintains systems of “internal control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, the Company’s principal executive officer and principal financial officer, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(hh) Neither the Company nor any Guarantor (i) is in violation of its
articles of incorporation or bylaws, (ii) is in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject and that is required to be filed by the Company with the
Commission under Item 601 of Regulation S-K or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clauses (ii) and (iii) above, for any such defaults or violations
that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(ii) To the
knowledge of the Company, neither the Company nor any of its subsidiaries nor any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any provision of the Bribery Act 2010 of the United Kingdom or any other applicable anti-corruption laws;
or (v) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment;
(jj) The
operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
“
Money Laundering Laws
”
) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company and or any of the Guarantors, threatened;
(kk) None of the Company, any of its subsidiaries or, to the knowledge of the Company and the Guarantors, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets
Control of the U.S. Department of the Treasury (
“
OFAC
”
), the United Nations Security Council
(
“
UNSC
”
),
the European Union, Her Majesty’s Treasury
(
“
HMT
”
),
or other relevant sanctions authority (collectively, “Sanctions”), and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities of
11
or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any
person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions;
(ll) Except for failures that, individually or in the aggregate, are immaterial, there is and has been no failure on the part
of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith;
(mm) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or
leased by the Company or any of its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or remedial action which would not have, or could not be reasonably likely to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there
has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not have or would not
be reasonably likely to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms “hazardous wastes,” “toxic
wastes,” “hazardous substances” and “medical wastes” shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection;
(nn) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of the
Notes” and “Description of Debt Securities” insofar as they purport to constitute a summary of the terms of the Securities, and under the caption “United States Federal Income Tax Considerations,” insofar as they purport to
describe the provisions of the laws referred to therein or constitute legal conclusions, are accurate and complete in all material respects;
(oo) The Company has not distributed and, prior to the later to occur of the Closing Date and completion of the distribution of
the Securities, will not distribute any offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus, the Final Term Sheet, the Prospectus and any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with Sections 1(j) or 5(a)(vii);
12
(pp) None of the transactions contemplated by this Agreement (including, without
limitation, the use of the proceeds from the sale of the Securities) will violate or result in violation of Section 7 of the Exchange Act or any regulation promulgated thereunder;
(qq) The Company and its subsidiaries have not taken, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities;
(rr) The Company and each of the Guarantors have full right, power and authority to execute and deliver this Agreement, the
Securities and the Indenture (collectively, the “
Transaction Documents
”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken by the Company and each of the Guarantors for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken;
(ss) The Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e)
of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required
disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act;
(tt) The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued
by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses as described in each of the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; and except as described in each of the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate, permit
or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, other than such revocations, modifications or non-renewals that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and
(uu) Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the Securities.
13
2.
Purchase of the Securities by the Underwriters.
The Company hereby agrees, on the basis
of the representations, warranties and agreements of the Underwriters contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Underwriters and, upon the basis of the representations, warranties and
agreements of the Company and the Guarantors herein contained and subject to all the terms and conditions set forth herein, each Underwriter agrees, severally and not jointly, to purchase from the Company, the principal amount of each of the 2021
Notes and the 2024 Notes set forth opposite the name of such Underwriter in Schedule I hereto. The price of the Notes purchased by the Underwriters shall be equal to 98.914% of the principal amount of the 2021 Notes and 98.972% of the principal
amount of the 2024 Notes, in each case, plus accrued interest, if any, from September 16, 2014 to the Closing Date. The Company shall not be obligated to deliver any of the Notes to be delivered hereunder except upon payment for all of the Notes to
be purchased as provided herein.
3.
Offering of Securities by the Underwriters.
Upon authorization by the Representatives of the
release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions to be set forth in the Prospectus.
4.
Delivery of and Payment for the Securities.
(a) Delivery to the Underwriters of and payment for the Securities shall be made at the
offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York no later than 12:00 noon, New York City time, on the third full business day following the date of this Agreement (unless the Securities are priced after 4:30
P.M., New York City time, in which case such delivery and payment shall be made no later than 12:00 noon, New York City time, on the fourth full business day following the date of this Agreement) or at such other date or place as shall be determined
by agreement between the Representatives and the Company. This date and time are sometimes referred to as the “
Closing Date
.” The Securities will be delivered to the Underwriters against payment of the purchase price therefor in
immediately available funds. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The Notes will be evidenced by one or more
global securities in definitive form (the “
Global Notes
”) and/or by additional definitive securities, and will be registered, in the case of the Global Notes, in the name of Cede & Co. as nominee of The Depository
Trust Company (“
DTC
”), and in the other cases, in such names and in such denominations as the Underwriters shall request prior to 9:30 A. M., New York City time, on the second business day preceding the Closing Date. The Notes to be
delivered to the Underwriters shall be made available to the Underwriters in New York City for inspection and packaging not later than 12:00 P.M., New York City time, on the business day next preceding the Closing Date.
5.
Agreements of the Company and the Guarantors.
(a) The Company and the Guarantors, jointly and severally, agree with each of the
Underwriters as follows:
(i) To prepare the Prospectus in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to
the Registration Statement or the Prospectus prior to the Closing Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any
14
amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to prepare a final term sheet substantially in the
form attached hereto as Schedule 2 and agreed by the Representatives and file it with the Commission pursuant to, and within the time period prescribed by, Rule 433; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities (or would be required but for Rule 172); to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending
the use of the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or
examination for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the
Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the
Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly all commercially reasonable efforts to obtain its withdrawal;
(ii) To pay the applicable Commission filing fees relating to the Securities within the time required by Rule 456(b)(1);
(iii) Upon the request of the Representatives, to furnish promptly to each of the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(iv) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably
request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of ratios of earnings to fixed
charges), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the
Prospectus; and, if the delivery of a prospectus is required (or would be required but for Rule 172) at any time after the date hereof in connection with the offering or sale of the Securities or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an
15
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such
Pricing Disclosure Package or the Prospectus was or is delivered (or would have been required to have been delivered but for Rule 172), not misleading, or, if for any other reason it shall be necessary to amend or supplement the Pricing Disclosure
Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and,
upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented
Pricing Disclosure Package or Prospectus that will correct such statement or omission or effect such compliance;
(v) To
file promptly with the Commission any amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or
requested by the Commission;
(vi) During such period beginning on the date of this Agreement and ending on the later of
the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any
document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing (such consent not to be unreasonably withheld);
(vii) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the
prior written consent of the Representatives and to comply with any requirements of Rule 433 with respect to each such Issuer Free Writing Prospectus pursuant to the Rules and Regulations;
(viii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed
pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if for any other reason it shall be
16
necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each
Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(ix) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, to make
generally available to the Company’s security holders and to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including Rule 158);
(x) The Company and each of the Guarantors will cooperate with the Underwriters and with
their counsel in connection with the qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such qualification;
provided,
that in no event shall the Company or any of the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject;
(xi) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder substantially in
accordance with the description as set forth in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”;
(xii) The Company and the Guarantors will not take, directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities;
(xiii) The Company and the Guarantors agree to comply with all the terms and conditions of all agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the approval of the Securities by DTC for “book entry” transfer;
(xiv) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of
any usury laws against holders of the Securities; and
(xv) The Company and the Guarantors will do and perform all things
required or necessary to be done and performed under this Agreement by them prior to the
17
Closing Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Securities.
(b) Each Underwriter severally agrees with the Company and each other Underwriter that such Underwriter has not and will not
use, authorize the use of, refer to, or participate in the planning for use of, an Issuer Free Writing Prospectus or any other “free writing prospectus” (as defined in Rule 405) required to be filed with the Commission without the prior
consent of the Company and the Representatives.
6.
Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company and the Guarantors agree to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the authorization, issuance, sale and delivery of the Securities and any stamp
duties or other taxes payable in that connection, (ii) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus and any amendment or supplement thereto; (iii) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto, or any document incorporated by reference therein, all as provided in this Agreement; (iv) the issuance and delivery by the Company of the Securities, (v) the preparation, printing (including, without limitation,
word processing and duplication costs) and delivery of this Agreement, the Indenture, and all other agreements, memoranda, correspondence and other documents printed and delivered in connection therewith (but not, however, legal fees and expenses of
your counsel incurred in connection with any of the foregoing), (vi) the preparation of certificates for the Securities, (vii) qualification of the Securities under the securities laws of the several jurisdictions as provided in
Section 5(a)(x) and the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters), (viii) all fees and expenses (including fees and expenses of counsel) of the
Company and the Guarantors in connection with approval of the Securities by DTC for “book-entry” transfer, (ix) all fees and expenses of the Company and the Guarantors incurred in connection with any roadshow, (x) all fees and
expenses of the Company’s counsel, independent public or certified public accountants and other advisors, (xi) any fees payable in connection with the rating of the Securities with the ratings agencies, (xii) the fees, costs and
charges of the Trustee, including the fees and disbursements of counsel for the Trustee and (xiii) the performance by the Company and the Guarantors of their other obligations under this Agreement;
provided
that, except as provided in
this Section 6 and in Section 12, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Securities which they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters.
7.
Conditions of Underwriters’ Obligations.
The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their
respective obligations hereunder, and to each of the following additional terms and conditions:
18
(a) The Prospectus shall have been timely filed with the Commission in accordance
with Section 5(a)(i); the Final Term Sheet shall have been prepared and timely filed pursuant to Section 5(a)(i); the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or
referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or
examination for such purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or
otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration
Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Davis Polk & Wardwell LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the
Indenture, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to Davis Polk & Wardwell LLP, counsel for the Underwriters, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon
such matters.
(d) Grace R. den Hartog, Esq. shall have furnished to the Underwriters her written opinion, as Senior Vice
President, General Counsel and Corporate Secretary of the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as
Exhibit B-1
.
(e) Hunton & Williams LLP shall have furnished to the Representatives its written opinion, as
counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as
Exhibit B-2
.
(f) The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and
the Company and the Guarantors shall have
19
furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP, a letter, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the “
initial letter
”), the Company shall have furnished to the Representatives a letter (the “
bring-down letter
”) of such accountants, addressed to the Underwriters
and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) The
Company shall have furnished to the Representatives a certificate, dated the Closing Date, of its Chairman of the Board, its President or a Vice President and its Chief Financial Officer stating that:
(i) The representations and warranties of the Company and the Guarantors in Section 1 are true and correct in all respects
as of the Closing Date and the Company and the Guarantors have performed in all respects all of their obligations hereunder to be performed at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination
for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
20
(iii) They have carefully examined the Registration Statement, the Prospectus and
the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration
Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iv) To the effect of Section 7(j)
(j) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements
included or incorporated by reference in Pricing Disclosure Package and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and,
since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries, except pursuant to the exercise of options or warrants or pursuant to the issuance of common stock under the Company’s stock purchase plan, incentive plan, dividend reinvestment plan, stock option or incentive plans and except for
any borrowing under the Credit Agreement in the ordinary course of business for working capital purposes, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by
21
the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by Federal or state
authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United
States as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus;
or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international
conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the Securities being delivered on the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(m) The Securities shall be eligible for clearance and
settlement through DTC.
(n) The Indenture shall have been duly executed and delivered by a duly authorized officer of the
Company, each of the Guarantors and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(o) On or prior to the Closing Date, the Company and the Guarantors shall have furnished to the Underwriters such further
certificates and documents as the Representatives may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
8.
Representations, Warranties and Acknowledgements of Underwriters.
Each Underwriter, severally and not jointly, acknowledges to the
Company that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus
Directive (each, a “
Relevant Member State
”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “
Relevant Implementation Date
”) it has not
made and will not make an offer to the public of the Securities in that Relevant Member State other than: (i) to legal entities which are qualified investors as defined in the Prospectus Directive; (ii) to fewer than 100, or, if the
Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive,
subject to obtaining the prior consent of the Representatives for any such offer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the
Company, the Guarantors or any Underwriter to publish a prospectus pursuant to Article
22
3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.
For purposes of this Section 8(a), the expression an “offer of Securities to the public” in relation to any
Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the
Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments
thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State and the expression “2010 PD Amending Directive” means
Directive 2010/73/EU.
(b) It has complied and will comply with applicable laws and regulations in each jurisdiction in
which it acquires, offers, sells or delivers Securities, or has in its possession or distributes any Free Writing Prospectus, any Preliminary Prospectus or the Prospectus.
(c) It has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation
or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “
FSMA
”)) received by it in connection with the issue of sale of the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to us.
(d) It has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
9.
Indemnification and Contribution
.
(a) The Company and each Guarantor, jointly and severally, shall indemnify and hold harmless each Underwriter, its directors,
officers, employees and affiliates and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Securities), to which that Underwriter, director, officer, employee, affiliate or
controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the most recent Preliminary Prospectus, the Registration Statement, the Prospectus, the Pricing Disclosure Package or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or (C) any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) with respect to whose use the Company has given its consent (“
Permitted
23
Issuer Information
”) used or referred to in any “free writing prospectus” (as defined in Rule 405) used or referred to by any Underwriter or (D) any “road
show” (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus (a “
Non-Prospectus Road Show
”), (ii) the omission or alleged omission to state in the most recent Preliminary Prospectus, the Registration
Statement, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information or any Non-Prospectus Road Show, any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (i) or (ii) above (
provided
that the Company and the
Guarantors shall not be liable under this clause (iii) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct), and shall reimburse each Underwriter and each such director, officer, employee, affiliate or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter, director, officer, employee, affiliate or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred;
provided
,
however
, that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the most recent Preliminary Prospectus, the Registration Statement, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information or any Non-Prospectus Road Show, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 9(e). The foregoing indemnity agreement is in addition to any liability
which the Company or the Guarantors may otherwise have to any Underwriter or to any director, officer, employee, affiliate or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and the Guarantors, their
officers, employees, each of their directors, and each person, if any, who controls the Company or the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to which the Company or the Guarantors or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, the Pricing
Disclosure Package, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show, or (ii) the omission or alleged
24
omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Non-Prospectus Road Show, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for inclusion
therein, which information is limited to the information set forth in Section 9(e), and shall reimburse the Company or the Guarantors and any such director, officer, employee or controlling person for any legal or other expenses reasonably
incurred by the Company or the Guarantors or any such director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or the Guarantors or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 9 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the claim or the commencement of that action;
provided,
however,
that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 9 except to the extent it has been materially prejudiced by such failure and,
provided further,
that
the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 9. If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified
party under this Section 9 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation;
provided, however,
that the Representatives
shall have the right to employ counsel to represent jointly the Representatives and those other Underwriters and their respective directors, officers, employees, affiliates and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against the Company or any Guarantors under this Section 9 if (i) the Company, the Guarantors and the Underwriters shall have so mutually agreed; (ii) the Company
and the Guarantors have failed within a reasonable time to retain counsel reasonably satisfactory to the Underwriters; (iii) the Underwriters and their respective directors, officers, employees, affiliates and controlling persons shall have
reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the Company and the Guarantors; or (iv) the named parties in any such proceeding (including any impleaded
parties) include
25
both the Underwriters or their respective directors, officers, employees, affiliates or controlling persons, on the one hand, and the Company and the Guarantors, on the other hand, and
representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the Company and the
Guarantors. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel and local counsel at any time for any indemnified party in connection with any one action or separate but similar or related actions
arising in the same jurisdiction out of the same general allegations or circumstances. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 shall for any reason
be unavailable to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Guarantors on the one hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company and the Guarantors, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or
26
omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 9(d)
were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, for purposes of this Section 9(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the net proceeds from the sale of the Securities underwritten by it exceeds the amount of any damages that such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 9(d) are several in proportion to their respective underwriter obligations and not joint.
(e) The Underwriters severally confirm and the Company and each Guarantor acknowledges and agrees that the statements regarding
delivery of the Securities by the Underwriters set forth on the cover page of, and the concession and reallowance figures appearing in the fourth paragraph and the information relating to stabilization by the Underwriters in the seventh and eighth
paragraphs appearing under the caption “Underwriting” in, the Pricing Disclosure Package and the Prospectus constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus
Road Show.
10.
Defaulting Underwriters.
If, on the Closing Date, any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Securities which the defaulting Underwriters agreed but failed to purchase on the Closing Date in the respective proportions which the number of the
Securities set opposite the name of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the total number of the Securities set opposite the names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided,
however,
that the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Securities on the Closing Date if the total amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 10% of the total amount of Securities to be purchased on the Closing Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more than 110% of the amount of Securities which it agreed to purchase on
the Closing Date
27
pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the non-defaulting Underwriters, or those other underwriters satisfactory to the Representatives and the Company
who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Securities to be purchased on the Closing Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives and the Company do not elect to purchase the Securities which the defaulting Underwriters or Underwriter agreed but failed to purchase on the Closing Date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company or the Guarantors, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 6 and 12. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule 1 hereto that, pursuant to this Section 12, purchases Securities that a defaulting Underwriter agreed
but failed to purchase. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or the Guarantors for damages caused by its default. If other Underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, the Company may postpone the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriter may be
necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
11.
Termination.
The obligations
of the Underwriters hereunder may be terminated by the Representatives by notice given to and received by the Company prior to delivery of and payment for the Securities if, prior to that time, any of the events described in Sections 7(j) and 7(k)
and 7(l), shall have occurred or if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement.
12.
Reimbursement of Underwriters’ Expenses.
If (a) the Company shall fail to tender the Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the Company or the Guarantors to perform any agreement on their part to be performed, or because any other condition of the obligations hereunder required to be fulfilled by
the Company or the Guarantors is not fulfilled for any reason or (b) the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement, the Company or the Guarantors will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including the reasonable fees and disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Securities, and upon demand the Company or the Guarantors
shall pay the full amount thereof to the Representatives. If this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the Company or the Guarantors shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
13.
Research Analyst Independence.
Each of the Company and the Guarantors
acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking
divisions. Each of the Company and the Guarantors hereby waives and
28
releases, to the fullest extent permitted by law, any claims that the Company or the Guarantors may have against the Underwriters with respect to any conflict of interest that may arise from the
fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Guarantors by such Underwriters’ investment banking
divisions. Each of the Company and the Guarantors acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the
account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
14.
No Fiduciary Duty.
Each of the Company and the Guarantors acknowledges and agrees that in connection with this offering, sale of
the Securities or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or
subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the Company, the Guarantors and any other person, on the one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are not acting as
advisors, expert or otherwise, to any of the Company or the Guarantors, including, without limitation, with respect to the determination of the public offering price of the Securities, and such relationship between the Company and the Guarantors, on
the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company or the Guarantors shall be limited to those
duties and obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company and the Guarantors. Each of the Company and the Guarantors hereby waives any
claims that the Company or the Guarantors may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
15.
Notices, etc.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission to J.P. Morgan Securities LLC,
383 Madison Avenue, New York, New York 10179, Facsimile: (212) 834-6081, Attention: Investment Grade Syndicate Desk – 3rd Floor, to Merrill, Lynch, Pierce, Fenner & Smith Incorporated, 50 Rockefeller Plaza, NY1 050 12 02, New
York, New York 10020, Facsimile: (212) 901-7881, Attention: High Grade Transaction Management/Legal and to Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Attention: Transaction Management, Fax:
(704) 410-0326;
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Grace R. den Hartog, Esq. (Fax: (804) 723-7113); with a copy to W. Lake Taylor, Jr., Esq., Hunton & Williams LLP, Riverfront Plaza – East Tower, 951 East
Byrd Street, Richmond, Virginia 23219 (Fax: (804) 788-8218);
29
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives.
16.
Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Guarantors and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the
Company and the Guarantors contained in this Agreement shall also be deemed to be for the benefit of the directors, officers, employees and affiliates of the Underwriters and each person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 9(b) of this Agreement shall be deemed to be for the benefit of the directors of the Company, the officers of the
Company, the employees of the Company and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred
to in this Section 16, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
17.
Survival.
The respective indemnities, representations, warranties and agreements of the Company, the Guarantors and the
Underwriters contained in this Agreement or made by or on behalf on them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any of them.
18.
Definition of the Terms “Business
Day”, “Affiliate” and “Subsidiary.”
For purposes of this Agreement, (a) “
business day
” means any day on which the New York Stock Exchange, Inc. is open for trading and
(b) “
affiliate
” and “
subsidiary
” have the meanings set forth in Rule 405 of the Securities Act.
19.
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
20.
Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
21.
Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
22.
Compliance with USA Patriot Act.
In accordance with the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include
the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
[
Signature Pages Follow
]
30
If the foregoing correctly sets forth the agreement among the Company, the Guarantors and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
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OWENS & MINOR, INC.
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By
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/s/ James L. Bierman
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Name: James L. Bierman
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Title: President & Chief Executive Officer
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OWENS & MINOR DISTRIBUTION, INC.
OWENS & MINOR MEDICAL, INC.
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By
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/s/ Richard A. Meier
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Name: Richard A. Meier
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Title: Executive Vice President & Chief
Financial Officer
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[
Signature Page to Underwriting Agreement
]
Accepted as of the date hereof:
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
WELLS FARGO SECURITIES, LLC
For themselves and as
Representatives of the several Underwriters named in Schedule 1 hereto
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By
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Stephen L. Sheiner
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Name: Stephen L. Sheiner
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Title: Executive Director
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By
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ Douglas Muller
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Name: Douglas Muller
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Title: Managing Director
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By
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name: Carolyn Hurley
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Title: Director
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[
Signature Page to Underwriting Agreement
]
SCHEDULE 1
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Underwriter
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Principal
Amount of
2021 Notes
to be
Purchased
|
|
|
Principal
Amount of
2024 Notes
to be
Purchased
|
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|
J.P. Morgan Securities LLC
|
|
$
|
69,575,000
|
|
|
$
|
69,575,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
69,575,000
|
|
|
|
69,575,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
69,575,000
|
|
|
|
69,575,000
|
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
17,600,000
|
|
|
|
17,600,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
17,600,000
|
|
|
|
17,600,000
|
|
|
BB&T Capital Markets, a division of BB&T Securities, LLC
|
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11,825,000
|
|
|
|
11,825,000
|
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|
Citigroup Global Markets Inc.
|
|
|
9,625,000
|
|
|
|
9,625,000
|
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|
PNC Capital Markets LLC
|
|
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9,625,000
|
|
|
|
9,625,000
|
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|
|
|
|
|
|
|
|
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|
|
Total
|
|
$
|
275,000,000
|
|
|
$
|
275,000,000
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SCHEDULE 2
ISSUER FREE WRITING PROSPECTUSES
FINAL TERM SHEET
Filed
Pursuant to Rule 433
Registration Statement No. 333-198635
Pricing Term Sheet
OWENS & MINOR, INC.
Pricing Term Sheet
September 11, 2014
3.875%
Senior Notes due 2021
4.375% Senior Notes due 2024
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Issuer:
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Owens & Minor, Inc.
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Initial Guarantors:
|
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Owens & Minor Distribution, Inc. and Owens & Minor Medical, Inc.
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Trade Date:
|
|
September 11, 2014
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|
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Settlement Date:
|
|
September 16, 2014 (T+3)
|
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|
|
|
|
|
|
|
|
2021 Notes
|
|
2024 Notes
|
|
|
|
|
|
Principal Amount:
|
|
$275,000,000
|
|
$275,000,000
|
|
|
|
|
|
Maturity Date:
|
|
September 15, 2021
|
|
December 15, 2024
|
|
|
|
|
|
Interest Payment Dates:
|
|
March 15 and September 15, commencing March 15, 2015
|
|
June 15 and December 15, commencing December 15, 2014
|
|
|
|
|
|
Coupon:
|
|
3.875%
|
|
4.375%
|
|
|
|
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Price to Public:
|
|
99.539% of principal amount
|
|
99.622% of principal amount
|
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|
|
|
|
Benchmark Treasury:
|
|
2.00% due August 31, 2021
|
|
2.375% due August 15, 2024
|
|
|
|
|
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Benchmark Treasury Price / Yield:
|
|
98-16+ / 2.231%
|
|
98-14+ / 2.552%
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+172 basis points
|
|
+187 basis points
|
|
|
|
|
|
Yield to Maturity:
|
|
3.951%
|
|
4.422%
|
|
|
|
|
|
Optional Redemption:
|
|
At any time at a discount rate of Treasury plus 25 basis points
|
|
Prior to September 15, 2024 (three months prior to the maturity date), at a discount rate of Treasury plus 30 basis points
On or after September 15, 2024, redeemable at
par.
|
|
|
|
|
|
|
|
Repurchase at the Option of Holders upon a Change of Control Triggering Event:
|
|
If a Change of Control Triggering Event (as defined in the preliminary prospectus supplement), occurs, unless we have previously exercised our optional redemption right, we will be required to offer to repurchase the
notes from holders at 101% of principal amount plus accrued and unpaid interest to the date of repurchase
|
|
|
|
|
|
CUSIP / ISIN:
|
|
690732AD4 / US690732AD40
|
|
690732AE2 / US690732AE23
|
|
|
|
|
Joint Book-Running Managers:
|
|
J.P. Morgan Securities LLC
Merrill, Lynch, Pierce, Fenner & Smith
Incorporated
Wells Fargo Securities, LLC
|
|
|
|
|
Senior Co-Managers:
|
|
SunTrust Robinson Humphrey, Inc.
U.S. Bancorp Investments, Inc.
|
|
|
|
|
Co-Managers:
|
|
BB&T Capital Markets, a division of BB&T Securities, LLC
Citigroup Global Markets Inc.
PNC Capital Markets
LLC
|
|
|
|
|
Pro Forma Ratio of Earnings to Fixed Charges
|
|
As adjusted on a pro forma basis to give effect to the offering and sale of the notes in this offering and the use of the net proceeds to fund the redemption of Owens & Minor Inc.’s 6.35% Senior Notes due
2016, as if such events occurred on January 1, 2013, our ratio of earnings to fixed charges would have been 3.7x for the six months ended June 30, 2014 and 4.3x for the year ended December 31, 2013. The pro forma year ended December 31, 2013 income
from continuing operations before income taxes excludes approximately $15 million in estimated charges associated with the redemption of the 2016 notes.
|
|
|
|
|
Conflicts of Interest
|
|
Affiliates of each of the underwriters are lenders under our revolving credit facility. In addition, an affiliate of U.S. Bancorp Investments, Inc. will be the trustee, paying agent and security registrar with respect
to the notes.
|
*Note: An explanation of the significance of ratings may be obtained from the ratings agencies. Generally, ratings agencies
base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The security ratings above are not a recommendation to buy, sell or hold the securities offered hereby. The
ratings may be subject to review, revision, suspension, reduction or withdrawal at any time by the rating agencies. Each of the security ratings above should be evaluated independently of any other security rating.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on
the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting J.P. Morgan Securities LLC by telephone collect at
1-
2
212-834-4533, Merrill Lynch, Pierce, Fenner & Smith Incorporated toll free at
1-800-294-1322
or Wells
Fargo Securities, LLC at 1-800-326-5897.
This pricing term sheet supplements the preliminary prospectus supplement issued by Owens &
Minor, Inc. on September 11, 2014 relating to its prospectus dated September 8, 2014.
Any disclaimer or other notice that may appear
below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
3
Other Issuer Free Writing Prospectuses
None.
4
EXHIBIT B-1
FORM OF OPINION OF ISSUER’S GENERAL COUNSEL
|
|
i.
|
To such counsel’s knowledge and other than as set forth in the Pricing Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any Guarantor is a party
or of which any property or assets of the Company or any Guarantor is subject which, if determined adversely to the Company or any Guarantor, would have, individually or in the aggregate, a Material Adverse Effect; and, to such counsel’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
|
|
|
ii.
|
The issue and sale of the Securities hereunder by the Company and the Guarantors and the compliance by the Company and the Guarantors with all of the provisions of the Underwriting Agreement and the Indenture and the
consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus thereby will not
(a) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the property or assets of the Company or any Guarantor is subject and that is required to be filed by the Company with the Commission under
Item 601(b)(10) of Regulation S-K, which breach violation or default would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) violate the provisions of the articles of incorporation or bylaws
of the Company or any Guarantor or (c) violate any statute or any rule or regulation that has been issued or any order known to such counsel pursuant to any statute or by any court or governmental agency or body having jurisdiction over the
Company or any Guarantor or any of their properties or assets that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
|
|
|
iii.
|
To such counsel’s knowledge, there are no contracts, agreements or understandings between the Company or the Guarantors and any person granting such person the right (other than rights which have been waived or
satisfied) to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
|
|
|
iv.
|
The Company has an authorized capitalization as set forth in each of the Pricing Disclosure Package and the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital
|
|
|
stock of each Guarantor have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors’ qualifying shares and except as set forth in the
Pricing Disclosure Package and the Prospectus) are owned directly or indirectly by the Company, to the knowledge of such counsel, free and clear of all liens, encumbrances, equities or claims.
|
Such counsel shall also have furnished to the Underwriters a written statement and dated the Closing Date, in form and substance satisfactory
to the Underwriters, to the effect that (x) she has acted as general counsel to the Company, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead her to believe that, as of the date of such letter:
(a) the Registration Statement, as of the latest Effective Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(b) the Prospectus, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(c) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading,
except that in each case such counsel need express no opinion with respect to (i) the Statement of Eligibility (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the financial statements or other financial data contained or incorporated by reference in or omitted from the Registration Statement, the Prospectus or the Pricing Disclosure Package. The foregoing opinion and statement
may be qualified by a statement to the effect that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Pricing Disclosure
Package.
2
EXHIBIT B-2
FORM OF OPINION OF ISSUER’S COUNSEL
|
|
i.
|
Each of the Company, Owens & Minor Distribution, Inc. and Owens & Minor Medical, Inc. is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia with
corporate power and authority necessary to own its properties and conduct its business as described in each of the Pricing Disclosure Package and the Prospectus.
|
|
|
ii.
|
The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Underwriting Agreement, the Indenture and the Notes and to issue and sell the Notes. Each of
Owens & Minor Distribution, Inc. and Owens & Minor Medical, Inc. has all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Underwriting Agreement, the Indenture and the
Guarantees.
|
|
|
iii.
|
The statements contained in the Pricing Disclosure Package and the Prospectus under the captions “Description of Notes” and “Description of Debt Securities” as they purport to constitute summaries of
certain terms of documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects.
|
|
|
iv.
|
The statements contained in the Pricing Disclosure Package and the Prospectus under the caption “United States Federal Income Tax Considerations” insofar as they constitute summaries of matters of U.S. federal
tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matter described therein in all material respects.
|
|
|
v.
|
The Registration Statement became effective under the Securities Act as of the date it was filed with the Commission, and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date specified therein. To such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding or examination for such
purpose has been instituted or threatened by the Commission.
|
|
|
vi.
|
The Underwriting Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.
|
|
|
vii.
|
The Indenture has been duly authorized, executed and delivered by the Company and the Guarantors and duly qualified under the Trust Indenture Act and,
assuming that the Indenture (including the Guarantees set forth therein) is the valid and legally binding obligation of the Trustee, constitutes a valid and binding agreement of the Company and the Guarantors enforceable against the
|
|
|
Company and the Guarantors in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
|
|
|
viii.
|
The Notes have been duly authorized, executed and issued by the Company, and, assuming due authentication thereof by the Trustee and delivery to and payment for the Notes by the Underwriters as provided in the
Underwriting Agreement, will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
|
|
|
ix.
|
The Guarantees have been duly authorized and issued by each Guarantor and, assuming due authentication of the Notes by the Trustee and delivery to and payment for the Notes by the Underwriters as provided in the
Underwriting Agreement, will constitute a valid and legally binding obligation of each Guarantor enforceable against such Guarantor in accordance with its terms and entitled to the benefits of the Indenture and enforceable in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
|
|
|
x.
|
The issue and sale of the Securities hereunder by the Company and the Guarantors and the compliance by the Company and the Guarantors with all of the provisions of the Underwriting Agreement and the Indenture and the
consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus thereby will not
violate any Applicable Law or any order known to such counsel that is applicable to the Company or any Guarantor of any court, governmental agency or regulatory body having jurisdiction over the Company or any Guarantor. The term “Applicable
Laws” means the laws of the State of New York, the laws of the Commonwealth of Virginia and the federal laws of the United States of America which, in such counsel’s experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement.
|
|
|
xi.
|
Except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such
|
2
|
|
consents, approvals, authorizations, registrations qualifications or filings as may be required under the Exchange Act and applicable state securities laws, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental agency or body is required under Applicable Laws for the execution, delivery and performance of this Agreement or the Indenture, the consummation of the transactions contemplated
hereby and thereby by the Company and the Guarantors.
|
|
|
xii.
|
Neither the Company nor any Guarantor is, and after giving effect to the sale of the Securities and the use of proceeds therefrom as described in the Pricing Disclosure Package and the Prospectus will not be, required
to register as an “investment company” or a company controlled by an “investment company” within the meaning of the Investment Company Act and the rules and regulations of the Commission thereunder.
|
Such counsel shall also have furnished to the Underwriters a written statement and dated the Closing Date, in form and substance satisfactory
to the Underwriters, to the effect that (x) such counsel has acted as counsel to the Company, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that, as of the date of
such letter:
(a) each of the Registration Statement, on the latest Effective Date and on the Closing Date, and the
Prospectus, when filed with the Commission pursuant to Rule 424(b) and on the Closing Date, was not, on its face, appropriately responsive, in all material respects, to the requirements of the Securities Act and the Rules and Regulations;
(b) each document filed pursuant to the Exchange Act and incorporated by reference in the most recent Preliminary Prospectus
and the Prospectus did not comply when so filed as to form in all material respects with the Exchange Act;
(c) the
Registration Statement, as of the latest Effective Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(d) the Prospectus, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(e) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading,
except that in each case such counsel need express no opinion with respect to (i) the Statement of Eligibility (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the financial statements or other financial data contained or incorporated by reference in or omitted from the Registration
3
Statement, the Prospectus or the Pricing Disclosure Package. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Pricing Disclosure Package, except to the extent set forth in paragraphs (iii) and (iv) above.
4
Exhibit 4.1
EXECUTION VERSION
= = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = =
OWENS & MINOR,
INC.,
as Issuer,
THE
GUARANTORS PARTY
HERETO
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
DATED AS OF SEPTEMBER 16, 2014
DEBT SECURITIES
CROSS REFERENCE TABLE(1)
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED:
|
|
|
|
TIA
Section
|
|
Indenture
Section
|
|
310(a)(1)
|
|
6.09
|
|
(a)(2)
|
|
6.09
|
|
(a)(3)
|
|
N.A.(2)
|
|
(a)(4)
|
|
N.A.
|
|
(a)(5)
|
|
6.09
|
|
(b)
|
|
6.08, 6.09, 6.10
|
|
311(a)
|
|
6.13
|
|
(b)
|
|
6.13
|
|
312(a)
|
|
7.01, 7.02
|
|
(b)
|
|
7.02
|
|
(c)
|
|
7.02
|
|
313(a)
|
|
7.03
|
|
(b)
|
|
7.03
|
|
(c)
|
|
1.07, 7.03
|
|
(d)
|
|
7.03
|
|
314(a)
|
|
1.03, 7.04, 10.04
|
|
(b)
|
|
N.A.
|
|
(c)(1)
|
|
1.03
|
|
(c)(2)
|
|
1.03
|
|
(c)(3)
|
|
N.A.
|
|
(d)
|
|
N.A.
|
|
(e)
|
|
1.03
|
|
(f)
|
|
N.A.
|
|
315(a)
|
|
6.01, 6.03
|
|
(b)
|
|
6.02
|
|
(c)
|
|
6.01
|
|
(d)
|
|
6.01
|
|
(e)
|
|
5.14
|
|
316(a) (last sentence)
|
|
1.01
|
|
(a)(1)(A)
|
|
5.12
|
|
(a)(1)(B)
|
|
5.13
|
|
(a)(2)
|
|
N.A.
|
|
(b)
|
|
5.08
|
|
(c)
|
|
1.05
|
|
317(a)(1)
|
|
5.03
|
|
(a)(2)
|
|
5.04
|
|
(b)
|
|
10.03
|
|
318
|
|
1.08
|
|
(1)
|
This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
|
|
(2)
|
N.A. means “not applicable.”
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE ONE
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
1
|
|
|
|
|
|
|
SECTION 1.01.
|
|
RULES OF CONSTRUCTION.
|
|
|
1
|
|
|
SECTION 1.02.
|
|
DEFINITIONS.
|
|
|
2
|
|
|
SECTION 1.03.
|
|
COMPLIANCE CERTIFICATES AND OPINIONS.
|
|
|
11
|
|
|
SECTION 1.04.
|
|
FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
|
|
|
12
|
|
|
SECTION 1.05.
|
|
ACTS OF HOLDERS; RECORD DATES.
|
|
|
13
|
|
|
SECTION 1.06.
|
|
NOTICES TO TRUSTEE AND COMPANY.
|
|
|
15
|
|
|
SECTION 1.07.
|
|
NOTICE TO HOLDERS; WAIVER.
|
|
|
15
|
|
|
SECTION 1.08.
|
|
CONFLICT WITH TRUST INDENTURE ACT.
|
|
|
16
|
|
|
SECTION 1.09.
|
|
EFFECT OF HEADINGS AND TABLE OF CONTENTS.
|
|
|
16
|
|
|
SECTION 1.10.
|
|
SUCCESSORS AND ASSIGNS.
|
|
|
16
|
|
|
SECTION 1.11.
|
|
SEPARABILITY CLAUSE.
|
|
|
16
|
|
|
SECTION 1.12.
|
|
BENEFITS OF INDENTURE.
|
|
|
16
|
|
|
SECTION 1.13.
|
|
GOVERNING LAW.
|
|
|
17
|
|
|
SECTION 1.14.
|
|
LEGAL HOLIDAYS.
|
|
|
17
|
|
|
SECTION 1.15.
|
|
NO RECOURSE AGAINST OTHERS.
|
|
|
17
|
|
|
|
|
|
|
ARTICLE TWO
|
|
SECURITY FORMS
|
|
|
17
|
|
|
|
|
|
|
SECTION 2.01.
|
|
FORMS AND DATING.
|
|
|
17
|
|
|
SECTION 2.02.
|
|
FORM OF FACE OF SECURITY
|
|
|
18
|
|
|
SECTION 2.03.
|
|
FORM OF REVERSE OF SECURITY.
|
|
|
19
|
|
|
SECTION 2.04.
|
|
FORM OF LEGEND FOR GLOBAL SECURITIES.
|
|
|
23
|
|
|
SECTION 2.05.
|
|
FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
|
|
|
24
|
|
|
|
|
|
|
ARTICLE THREE
|
|
THE SECURITIES
|
|
|
24
|
|
|
|
|
|
|
SECTION 3.01.
|
|
AMOUNT UNLIMITED; ISSUABLE IN SERIES
|
|
|
24
|
|
|
SECTION 3.02.
|
|
DENOMINATIONS.
|
|
|
28
|
|
|
SECTION 3.03.
|
|
EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
|
|
|
28
|
|
|
SECTION 3.04.
|
|
TEMPORARY SECURITIES.
|
|
|
31
|
|
|
SECTION 3.05.
|
|
REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
|
|
|
31
|
|
|
SECTION 3.06.
|
|
MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
|
|
|
33
|
|
|
SECTION 3.07.
|
|
PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
|
|
|
34
|
|
|
SECTION 3.08.
|
|
PERSONS DEEMED OWNERS.
|
|
|
35
|
|
|
SECTION 3.09.
|
|
CANCELLATION.
|
|
|
36
|
|
|
SECTION 3.10.
|
|
COMPUTATION OF INTEREST.
|
|
|
36
|
|
|
SECTION 3.11.
|
|
CUSIP AND ISIN NUMBERS.
|
|
|
36
|
|
-i-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE FOUR
|
|
SATISFACTION AND DISCHARGE
|
|
|
37
|
|
|
|
|
|
|
SECTION 4.01.
|
|
SATISFACTION AND DISCHARGE OF INDENTURE.
|
|
|
37
|
|
|
SECTION 4.02.
|
|
APPLICATION OF TRUST MONEY.
|
|
|
38
|
|
|
|
|
|
|
ARTICLE FIVE
|
|
REMEDIES
|
|
|
38
|
|
|
|
|
|
|
SECTION 5.01.
|
|
EVENTS OF DEFAULT.
|
|
|
38
|
|
|
SECTION 5.02.
|
|
ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
|
|
|
40
|
|
|
SECTION 5.03.
|
|
COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
|
|
|
42
|
|
|
SECTION 5.04.
|
|
TRUSTEE MAY FILE PROOFS OF CLAIM.
|
|
|
42
|
|
|
SECTION 5.05.
|
|
TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
|
|
|
43
|
|
|
SECTION 5.06.
|
|
APPLICATION OF MONEY COLLECTED.
|
|
|
43
|
|
|
SECTION 5.07.
|
|
LIMITATION ON SUITS.
|
|
|
44
|
|
|
SECTION 5.08.
|
|
RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
|
|
|
44
|
|
|
SECTION 5.09.
|
|
RESTORATION OF RIGHTS AND REMEDIES.
|
|
|
44
|
|
|
SECTION 5.10.
|
|
RIGHTS AND REMEDIES CUMULATIVE.
|
|
|
45
|
|
|
SECTION 5.11.
|
|
DELAY OR OMISSION NOT WAIVER.
|
|
|
45
|
|
|
SECTION 5.12.
|
|
CONTROL BY HOLDERS.
|
|
|
45
|
|
|
SECTION 5.13.
|
|
WAIVER OF PAST DEFAULTS.
|
|
|
45
|
|
|
SECTION 5.14.
|
|
UNDERTAKING FOR COSTS.
|
|
|
46
|
|
|
SECTION 5.15.
|
|
STAY, EXTENSION AND USURY LAWS.
|
|
|
46
|
|
|
|
|
|
|
ARTICLE SIX
|
|
THE TRUSTEE
|
|
|
46
|
|
|
|
|
|
|
SECTION 6.01.
|
|
CERTAIN DUTIES AND RESPONSIBILITIES.
|
|
|
46
|
|
|
SECTION 6.02.
|
|
NOTICE OF DEFAULTS.
|
|
|
48
|
|
|
SECTION 6.03.
|
|
CERTAIN RIGHTS OF TRUSTEE.
|
|
|
48
|
|
|
SECTION 6.04.
|
|
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
|
|
|
50
|
|
|
SECTION 6.05.
|
|
MAY HOLD SECURITIES.
|
|
|
50
|
|
|
SECTION 6.06.
|
|
MONEY HELD IN TRUST.
|
|
|
50
|
|
|
SECTION 6.07.
|
|
COMPENSATION AND REIMBURSEMENT.
|
|
|
50
|
|
|
SECTION 6.08.
|
|
CONFLICTING INTERESTS.
|
|
|
51
|
|
|
SECTION 6.09.
|
|
CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
|
|
|
51
|
|
|
SECTION 6.10.
|
|
RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
|
|
|
52
|
|
|
SECTION 6.11.
|
|
ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
|
|
|
53
|
|
|
SECTION 6.12.
|
|
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
|
|
|
54
|
|
|
SECTION 6.13.
|
|
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
|
|
|
54
|
|
|
SECTION 6.14.
|
|
APPOINTMENT OF AUTHENTICATING AGENT.
|
|
|
55
|
|
-ii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
56
|
|
|
|
|
|
|
SECTION 7.01.
|
|
COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
|
|
|
56
|
|
|
SECTION 7.02.
|
|
PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
|
|
|
57
|
|
|
SECTION 7.03.
|
|
REPORTS BY TRUSTEE.
|
|
|
57
|
|
|
SECTION 7.04.
|
|
REPORTS BY COMPANY.
|
|
|
57
|
|
|
|
|
|
|
ARTICLE EIGHT
|
|
CONSOLIDATION, MERGER AND SALE OF ASSETS
|
|
|
58
|
|
|
|
|
|
|
SECTION 8.01.
|
|
COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
|
|
|
58
|
|
|
SECTION 8.02.
|
|
SUCCESSOR SUBSTITUTED.
|
|
|
58
|
|
|
|
|
|
|
ARTICLE NINE
|
|
SUPPLEMENTAL INDENTURES
|
|
|
59
|
|
|
|
|
|
|
SECTION 9.01.
|
|
SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
|
|
|
59
|
|
|
SECTION 9.02.
|
|
SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
|
|
|
60
|
|
|
SECTION 9.03.
|
|
EXECUTION OF SUPPLEMENTAL INDENTURES.
|
|
|
62
|
|
|
SECTION 9.04.
|
|
EFFECT OF SUPPLEMENTAL INDENTURES.
|
|
|
62
|
|
|
SECTION 9.05.
|
|
CONFORMITY WITH TRUST INDENTURE ACT.
|
|
|
62
|
|
|
SECTION 9.06.
|
|
REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
|
|
|
62
|
|
|
SECTION 9.07.
|
|
REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
|
|
|
62
|
|
|
|
|
|
|
ARTICLE TEN
|
|
COVENANTS
|
|
|
63
|
|
|
|
|
|
|
SECTION 10.01.
|
|
PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
|
|
|
63
|
|
|
SECTION 10.02.
|
|
MAINTENANCE OF OFFICE OR AGENCY.
|
|
|
63
|
|
|
SECTION 10.03.
|
|
MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
|
|
|
64
|
|
|
SECTION 10.04.
|
|
COMPLIANCE CERTIFICATE.
|
|
|
65
|
|
|
SECTION 10.05.
|
|
CORPORATE EXISTENCE.
|
|
|
65
|
|
|
SECTION 10.06.
|
|
PAYMENT OF TAXES AND OTHER CLAIMS.
|
|
|
66
|
|
|
SECTION 10.07.
|
|
LIMITATIONS ON LIENS.
|
|
|
66
|
|
|
SECTION 10.08.
|
|
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
|
|
|
66
|
|
|
SECTION 10.09.
|
|
ADDITIONAL SUBSIDIARY GUARANTEES.
|
|
|
67
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
REDEMPTION OF SECURITIES
|
|
|
68
|
|
|
|
|
|
|
SECTION 11.01.
|
|
APPLICABILITY OF ARTICLE.
|
|
|
68
|
|
|
SECTION 11.02.
|
|
ELECTION TO REDEEM; NOTICE TO TRUSTEE.
|
|
|
68
|
|
-iii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
SECTION 11.03.
|
|
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
|
|
|
68
|
|
|
SECTION 11.04.
|
|
NOTICE OF REDEMPTION.
|
|
|
69
|
|
|
SECTION 11.05.
|
|
DEPOSIT OF REDEMPTION PRICE.
|
|
|
70
|
|
|
SECTION 11.06.
|
|
SECURITIES PAYABLE ON REDEMPTION DATE.
|
|
|
70
|
|
|
SECTION 11.07.
|
|
SECURITIES REDEEMED IN PART.
|
|
|
71
|
|
|
|
|
|
|
ARTICLE TWELVE
|
|
SINKING FUNDS
|
|
|
71
|
|
|
|
|
|
|
SECTION 12.01.
|
|
APPLICABILITY OF ARTICLE.
|
|
|
71
|
|
|
SECTION 12.02.
|
|
SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
|
|
|
72
|
|
|
SECTION 12.03.
|
|
REDEMPTION OF SECURITIES FOR SINKING FUND.
|
|
|
72
|
|
|
|
|
|
|
ARTICLE THIRTEEN
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
72
|
|
|
|
|
|
|
SECTION 13.01.
|
|
COMPANY’S RIGHT WITH RESPECT TO DEFEASANCE OR COVENANT DEFEASANCE.
|
|
|
72
|
|
|
SECTION 13.02.
|
|
DEFEASANCE AND DISCHARGE.
|
|
|
72
|
|
|
SECTION 13.03.
|
|
COVENANT DEFEASANCE.
|
|
|
73
|
|
|
SECTION 13.04.
|
|
CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
|
|
|
74
|
|
|
SECTION 13.05.
|
|
DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
|
|
|
76
|
|
|
SECTION 13.06.
|
|
REINSTATEMENT.
|
|
|
76
|
|
|
|
|
|
|
ARTICLE FOURTEEN
|
|
GUARANTEES
|
|
|
77
|
|
|
|
|
|
|
SECTION 14.01.
|
|
GUARANTEES.
|
|
|
77
|
|
|
SECTION 14.02.
|
|
LIMITATION ON LIABILITY.
|
|
|
79
|
|
|
SECTION 14.03.
|
|
RELEASE OF SUBSIDIARY GUARANTEES.
|
|
|
79
|
|
|
SECTION 14.04.
|
|
GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
|
|
|
79
|
|
|
SECTION 14.05.
|
|
SUCCESSORS AND ASSIGNS.
|
|
|
80
|
|
|
SECTION 14.06.
|
|
NO WAIVER.
|
|
|
80
|
|
|
SECTION 14.07.
|
|
MODIFICATION.
|
|
|
80
|
|
|
SECTION 14.08.
|
|
EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS.
|
|
|
80
|
|
-iv-
THIS INDENTURE, dated as of September 16, 2014, is among Owens & Minor, Inc., a
Virginia corporation (the “Company”), the Guarantors (as hereafter defined) and U.S. Bank National Association, as trustee (the “Trustee”).
RECITALS
The Company has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured notes, debentures or other evidences of indebtedness (herein called a “Security” or the “Securities”) to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a legal, valid and binding
agreement of the Issuer and the Guarantors, in accordance with its terms, have been done.
For and in consideration of the premises and
the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and ratable benefit of all Holders of the Securities of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION
|
|
SECTION 1.01.
|
RULES OF CONSTRUCTION.
|
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in the United States as in effect from time to time and, except as otherwise herein expressly provided, the term
“generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such United States accounting principles as are generally accepted at the date of such computation;
(4) “or” is not exclusive;
(5) “including” means including, without limitation; and
(6) the words “herein,” “hereof,” and “hereunder”
and others of similar import refer to this Indenture as a whole and not to any particular Article, Section, or other subdivision.
|
|
SECTION 1.02.
|
DEFINITIONS.
|
“Act,” when used with respect to any Holder, has the meaning specified
in Section 1.05.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided that beneficial ownership of
10% or more of the Voting Stock of a Person shall be deemed to be control.
“Authenticating Agent” means any Person authorized
by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Bankruptcy Law” means Title 11, United States Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of such board.
“Board Resolution” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means, with respect to any Place of Payment or any other particular location referred to in this Indenture or in the
Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, the location of the Corporate Trust Office, the Place of Payment or other particular location referred to in this
Indenture or in the Securities are authorized or obligated by law or executive order to close.
“Capital Stock” means
(1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity (other than a partnership or limited liability company), any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
2
“Cash” means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.
“Commission” means the Securities and Exchange Commission, from time
to time constituted, created under the Exchange Act, or, if any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Common Stock” means with respect to any Person, any and all shares, interests or other participations in,
and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the issue date of a series of Securities, and includes, without limitation, all series and classes of such
common stock.
“Company” means the party named as the “Company” in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor.
“Company
Request” or “Company Order” means a written request or order signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer, its President, a Vice President or its Chief Financial Officer and by its
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Consolidated Net Worth” means, the
shareholders’ equity of the Company and its consolidated Subsidiaries, as shown on the consolidated balance sheet in the Company’s latest quarterly or annual report filed with the Commission, prepared in accordance with GAAP.
“Corporate Trust Office” means the corporate trust office of the Trustee, which, at the time of the execution of this Indenture is
located at Two James Center, 1021 East Cary Street, Suite 1850, Richmond, Virginia 23219.
“Covenant Defeasance” has the meaning
specified in Section 13.03.
“Credit Agreement” means the Credit Agreement, dated as of June 5, 2012, by and among
Owens & Minor Distribution, Inc., and Owens & Minor Medical, Inc. (as Borrowers), the Company and certain of its domestic subsidiaries (as Guarantors), Wells Fargo Bank, N.A. (as Administrative Agent), JPMorgan Chase Bank, N.A. (as
Syndication Agent) and a syndicate of banks as specified on the signature pages thereof, as amended from time to time.
“Credit
Facilities” means, one or more debt facilities, commercial paper facilities, or capital markets financings (whether or not registered with the Commission), in each case with banks, investment banks (acting as underwriters, placement agents or
dealers), other institutional lenders or investors or trustees providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables), letters of credit, or capital markets financings, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.
3
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
“Default” means any event that is, or after notice or passage of time or both would be, an
Event of Default.
“Defaulted Interest” shall have the meaning set forth in Section 3.07.
“Defeasance” shall have the meaning specified in Section 13.02.
“Depositary” means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more
Global Securities, DTC or another clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities contemplated by Section 3.01 and if at any time there is more than one such person,
“Depositary” as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall
be legal tender for the payment of public and private debts.
“DTC” means the Depository Trust Company, its nominee and their
respective successors and assigns.
“Event of Default” shall have the meaning set forth in Section 5.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Expiration Date” has the meaning specified in Section 1.05.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the
accounting profession.
“Global Security” means a Security that evidences all or part of the Securities of any series that is
executed by the Company and authenticated and delivered by the Trustee to a Depositary or pursuant to such Depositary’s instructions, all in accordance with this Indenture and that bears the legend set forth in Section 2.04 (or such legend
as may be specified as contemplated by Section 3.01 for such series of Securities).
“Guarantee” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in
the ordinary course of business.
“Guaranteed Obligation” shall have the meaning specified in Section 14.01.
4
“Guarantor” means (a) each of the guarantors listed on the signature pages hereto
and (b) any other Subsidiary that has outstanding, incurs or guarantees Specified Indebtedness;
provided
that upon the release or discharge of such Subsidiary from its Subsidiary Guarantee in accordance with the provisions of this
Indenture, such Subsidiary shall cease to be a Guarantor.
“Headquarters Facility” means the Company’s principal executive
offices located at 9120 Lockwood Boulevard, Mechanicsville, Virginia.
“Holder” or “Securityholder” means a Person in
whose name a Security is registered in the Security Register.
“Indebtedness” means all items classified as indebtedness on the
most recently available balance sheet of the Company and its consolidated Subsidiaries, in accordance with GAAP.
“Indenture”
means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this instrument and any such supplemental indenture, and shall include the terms of a particular series of Securities established as contemplated in Section 3.01.
“Interest,” when used with respect to an Original Issue Discount Security, which by its terms bears interest only after Maturity,
means interest payable after Maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
“Investment Company Act” means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
“Issue Date” means the date the Securities are first
issued under the Indenture.
“Legal Holiday” shall have the meaning set forth in Section 1.14.
“Lien” means any mortgage, lien, pledge, charge of any kind (including any conditional sale or other title retention agreement or
lease in the nature thereof), security interest or other encumbrance.
“Maturity,” when used with respect to any Security, means
the date on which the principal of such Security or an installment of principal or, in the case of an Original Issue Discount Security, the principal amount payable upon a declaration of acceleration pursuant to Section 5.02, becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” shall have the meaning set forth in Section 5.01.
5
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer, the Secretary, or any Assistant Secretary of the Company.
“Officers’ Certificate” means a written certificate signed in the name of the Company by its Chairman of the Board, the Chief
Executive Officer, the Chief Financial Officer, its President or a Vice President, and by its Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. One of the Officers signing an Officers’ Certificate given pursuant
to Section 10.04 shall be the principal executive, financial or accounting officer of the Company.
“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the Trustee and who may be an employee of, or counsel to, the Company or the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding,” when used
with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption money in the necessary amount and in the required currency
or currency unit has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any other obligor upon the Securities) in trust or set aside and segregated in trust by the Company or any other obligor upon the
Securities (if the Company or any other obligor upon the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as
to which Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however,
that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Securities have given, made
or taken any request, demand,
6
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (a) the principal amount of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (b) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (c) the principal
amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01,
of the principal amount of such Security, (or, in the case of a Security described in Clause (a) or (b) above, of the amount determined as provided in such Clause), and (d) Securities owned by the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, any Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, any Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Guarantor or of such other obligor.
“Paying Agent” means any Person authorized
by the Company to pay the principal of or any premium or interest on any Securities of any series on behalf of the Company.
“Periodic Offering” means an offering of Securities of a series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any, thereon, the Stated Maturity or Maturities thereof, the original issue date or dates thereof, the redemption provisions, if any, and any other terms specified as contemplated by
Section 3.01 with respect thereto, are to be determined by the Company, or one or more of the Company’s agents designated in an Officers’ Certificate, upon the issuance of such Securities.
“Permitted Liens” means:
(1) Liens existing on the Issue Date;
(2) Liens on property created at the time of acquisition of such property or within six months after such time to secure all or
a part of the cost of acquiring, constructing or improving all or any part of such property or to secure debt incurred no later than six months after the time of acquisition or the date of completion of construction or improvement or the date of
commencement of full operations to provide funds for the reimbursement of funds expended for the foregoing purposes;
(3)
Liens existing on any property of a corporation or other entity at the time it became or becomes a Subsidiary of the Company (provided that the
7
Lien has not been created or assumed in contemplation of such Person becoming a Subsidiary of the Company);
(4) Liens securing Indebtedness owing by a Subsidiary to the Company or to one or more of its Subsidiaries;
(5) rights of set-off over deposits of the Company or a Subsidiary held by financial institutions;
(6) Liens in favor of any governmental authority of any jurisdiction securing the obligation of the Company or any of its
Subsidiaries pursuant to any contract or payment owed to that entity pursuant to applicable laws, regulations or statutes;
(7) Liens on any assets of the Company or any of its Subsidiaries (including Receivables Subsidiaries) incurred in connection
with a Qualified Receivables Transaction;
(8) any extension, renewal, substitution or replacement of the foregoing,
provided that the principal amount is not increased and that such Lien is not extended to other property except for the amount of any premium required to be paid in connection with such extension, renewal, substitution or replacement pursuant to the
terms of the Indebtedness extended, renewed, substituted or replaced or the amount of any premium reasonably determined by the Company as necessary to accomplish such extension, renewal, substitution or replacement by means of a tender offer,
exchange offer or privately negotiated repurchase, plus the expenses of the Company or such Subsidiary incurred in connection with such extension, renewal, substitution or replacement; and
(9) Liens in favor of the Trustee as provided for in this Indenture on money or property held in its capacity as Trustee.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“Place of
Payment,” when used with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 10.02, the principal of and any interest or premium on the Securities of that series are payable as
specified as contemplated by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
8
“Preferred Stock” means, as applied to the Capital Stock of any corporation, Capital
Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock
of any other class of such corporation.
“Property” means all real and tangible property owned or leased by the Company or any
Subsidiary.
“Qualified Receivables Transaction” means any transaction or series of transactions entered into by the Company or
any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries) and (2) any other
Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) or inventory of the Company or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable or inventory, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable or inventory.
“Receivables Subsidiary” means a Subsidiary of the Company that engages in no activities other than in connection with the financing
of accounts receivable or inventory (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Company or any Subsidiary of the Company (excluding guarantees of obligations
(other than the principal of, and interest on, Indebtedness) pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction), (ii) is
recourse or obligates the Company or any Subsidiary of the Company in any way other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables
Transaction or (iii) subjects any property or asset of the Company or any Subsidiary of the Company (other than accounts receivable or inventory and related assets as provided in the definition of “Qualified Receivables Transaction”),
directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables
Transaction, (b) with which neither the Company nor any Subsidiary of Company has any material contract, agreement, arrangement or understanding other than on terms customary for securitization of receivables or inventory and (c) with
which neither the Company nor any Subsidiary of the Company has any obligations to maintain or preserve such Subsidiary’s financial condition or cause such Subsidiary to achieve certain levels of operating results.
“Redemption Date” or “redemption date,” when used with respect to any Security to be redeemed in whole or in part, shall
mean the date specified for such redemption in accordance with the terms of such Security and this Indenture.
“Redemption
Price” or “redemption price,” when used with respect to any Security to be redeemed in whole or in part, means the price at which it is to be redeemed pursuant to the terms of such Security and this Indenture.
9
“Regular Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date, if any, specified for that purpose as contemplated by Section 3.01.
“Responsible
Officer” means any corporate trust officer located at the Corporate Trust Office of the Trustee including any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge and familiarity with the
particular subject and who is responsible for the administration of this Indenture.
“Sale and Leaseback Transaction” means the
sale or transfer by the Company or any Subsidiary of any property to a Person and the taking back by the Company or any Subsidiary, as the case may be, of a lease of such property.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Security” or “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Security authenticated and delivered under this Indenture.
“Securityholder” or “Holder” means
a Person in whose name a Security is registered in the Security Register.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 3.05.
“Significant Subsidiary” means (i) any
Guarantor or (ii) any Subsidiary of the Company that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.
“Special Record Date” for the payment of any Defaulted Interest on the Securities means a date fixed by the Trustee pursuant to
Section 3.07.
“Specified Indebtedness” means (i) any Indebtedness under the Credit Agreement and (ii) any
Indebtedness incurred under Credit Facilities that refinance such Indebtedness.
“Stated Maturity,” when used with respect to
any security or any installment of principal thereof or interest thereon, means the date specified in such security as the fixed date on which an amount equal to the principal of such security or an installment of principal thereof or interest
thereon is due and payable.
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“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Subsidiary Guarantee” means any Guarantee by a Guarantor of the Guaranteed Obligations pursuant to the provisions of this
Indenture.
“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939, as in effect on the date of this
Indenture, provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” or “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as
so amended.
“Trustee” means the party named as the “Trustee” in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. If there shall be at one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply
to each such Trustee only with respect to those Securities with respect to which it is serving as Trustee.
“U.S. Government
Obligation” has the meaning specified in Section 13.04.
“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 Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote
generally in the election of the board of directors of such Person.
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SECTION 1.03.
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COMPLIANCE CERTIFICATES AND OPINIONS.
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Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee
(1) such certificates and opinions as may be required under the Trust Indenture Act and (2) an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, provided for in this Indenture, relating to the proposed action have been complied with. Each certificate or opinion
required under the Trust Indenture Act shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company,
11
or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture
shall include:
(1) a statement that each Person signing such Officers’ Certificate or Opinion of Counsel has read
such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions contained in such Officers’ Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he or she has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or condition has been complied with.
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SECTION 1.04.
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FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
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In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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SECTION 1.05.
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ACTS OF HOLDERS; RECORD DATES.
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Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company and any agent of the Trustee and the Company, if made in the same manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The
Company may, as permitted by the Trust Indenture Act, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite aggregate principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new
13
record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite aggregate principal amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in the manner set forth in Sections 1.06 and 1.07.
The Trustee may,
but shall not be obligated to, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving and making of (a) any Notice of Default, (b) any declaration of
acceleration referred to in Section 5.02, (c) any request to institute proceedings referred to in Section 5.07(2), (d) any direction referred to in Section 5.12 or (e) any waiver of past defaults referred to in
Section 5.13, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to
join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite aggregate principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite aggregate principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at
the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set
forth in Sections 1.06 and 1.07.
With respect to any record date set pursuant to this Section, the party hereto which sets such record
date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is
given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.07, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 90th day after such record date as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 90th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the
14
principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
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SECTION 1.06.
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NOTICES TO TRUSTEE AND COMPANY.
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Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished, or
filed in writing to or with the Trustee at its Corporate Trust Office, Attention: U.S. Bank Corporate Trust Services, or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage
prepaid to the Trustee addressed to it as provided above; and
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Chief Financial Officer, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy
mailed, first class postage prepaid, to the Company addressed to it as provided above.
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or communications.
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SECTION 1.07.
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NOTICE TO HOLDERS; WAIVER.
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Any notice or communication given to a Holder of Securities shall
be mailed to such Securityholder at the Securityholder’s address as it appears on the registration books of the Security Registrar and shall be sufficiently given if so mailed within the time prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders of Securities of a particular series, it shall mail a copy to the Trustee and
each Security Registrar, co-registrar or Paying Agent, as the case may be, with respect to such series.
15
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give notice to Holders of Securities by mail, then such notification as shall be made with the acceptance of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to
Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given
to the Depositary for such Security (or its designee), pursuant to its policies and procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
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SECTION 1.08.
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CONFLICT WITH TRUST INDENTURE ACT.
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If any provision of this Indenture limits, qualifies or
conflicts with a provision of the TIA which is required under the TIA to be a part of and govern this Indenture, the required provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 1.09.
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EFFECT OF HEADINGS AND TABLE OF CONTENTS.
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The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
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SECTION 1.10.
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SUCCESSORS AND ASSIGNS.
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All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
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SECTION 1.11.
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SEPARABILITY CLAUSE.
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In case any provision in this Indenture or in the Securities 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.
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SECTION 1.12.
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BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any Authenticating Agent and any Security Registrar and their successors hereunder and the Holders of Securities, any benefits or any legal or equitable right, remedy or
claim under this Indenture.
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SECTION 1.13.
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GOVERNING LAW.
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This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
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SECTION 1.14.
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LEGAL HOLIDAYS.
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A “Legal Holiday” is any day other than a Business Day. If any
specified date (including an Interest Payment Date, Redemption Date or Stated Maturity of any Security, or a date for giving notice) is a Legal Holiday at any Place of Payment or place for giving notice, then (notwithstanding any other provision of
this Indenture or of the Securities other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section) payment of interest or principal or premium, if any, need not be made at
such Place of Payment, or such other action need not be taken, on such date, but the payment or action shall be taken on the next succeeding day that is not a Legal Holiday at such Place of Payment or place for giving notice with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or such other date and to the extent applicable, no Original Issue Discount or interest, if any, shall accrue for the intervening period.
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SECTION 1.15.
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NO RECOURSE AGAINST OTHERS.
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No director, officer, employee, incorporator or shareholder of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Securities by accepting a Security waives and releases all such liability to the extent permitted by applicable law. The waiver and release are part of the consideration for issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
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SECTION 2.01.
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FORMS AND DATING.
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The Securities of each series and the Trustee’s certificate of
authentication shall be in substantially such form (including global form) as set forth in this Article or in such other form as shall be established from time to time by or pursuant to a Board Resolution and set forth in an Officers’
Certificate or in one or more indentures supplemental hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law, with the rules of any
securities exchange or as may, consistently herewith, be determined by the Officers executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any
other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
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SECTION 2.02.
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FORM OF FACE OF SECURITY
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The Securities shall be in substantially the following form:
[if the security is a Global Security, insert the legend required by Section 2.04]
OWENS & MINOR, INC.
[insert title of security]
[, if the Security is a Global Security, insert — , as revised by the Schedule of Increases and Decreases in Global
Security attached hereto]
Owens & Minor, Inc., a corporation duly organized and existing under the laws of the Commonwealth of
Virginia (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars [, if the Security is a Global Security, insert — , as revised by the Schedule of Increases and Decreases in Global
Security attached hereto,] on [if the Security is to bear interest prior to Maturity, insert — and to pay interest thereon
from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in
each year, commencing , at the rate of
per annum, until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any
principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]]. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly
provided for (except for Defaulted Interest), on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date even if Securities are cancelled,
repurchased or redeemed after the Regular Record Date and on or before the Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
18
Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the
case of a Default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of % per annum (to the extent
that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on
overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand
until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained
for that purpose in , in such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts, against surrender of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment
Date) [if applicable, insert — ; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register]. [, if
the Security is a Global Security, insert — Payments in respect of Securities represented by a Global Security (including principal, premium, if any, and interest) will be made by the transfer of immediately available funds to the accounts
specified by [DTC or — insert name of Depositary designated pursuant to Section 3.01] or any successor depository.]
Reference
is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the
Company has caused this instrument to be duly executed.
Dated:
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SECTION 2.03.
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FORM OF REVERSE OF SECURITY.
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This Security is one of a duly authorized issue of securities of
the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture,
19
dated as of , 20 (herein called the “Indenture”, which term shall have the meaning
assigned to it in such instrument), among the Company, the Guarantors and U.S. Bank National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made
to the Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert —, limited in aggregate principal amount to
$ ].
[If applicable, insert — The Securities of this series
are subject to redemption prior to the Stated Maturity upon not less than 30 nor more than 60 days’ notice by mail, [if applicable, insert — (1) on in any year
commencing with the year and ending with the year through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after ,
20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable,
insert — on or before , , and if redeemed] during the 12-month period beginning
of the years indicated,
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YEAR
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REDEMPTION
PRICE
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YEAR
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REDEMPTION
PRICE
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and thereafter at a Redemption Price equal
to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with
accrued and unpaid interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates referred to on the face hereof, all as provided in the Indenture].
[If applicable,
insert — The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days’ notice by mail, (1) on in any year commencing with
the year and ending with the year through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after
], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
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YEAR
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REDEMPTION PRICE FOR
REDEMPTION THROUGH
OPERATION OF THE
SINKING FUND
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REDEMPTION PRICE FOR
REDEMPTION
OTHERWISE THAN
THROUGH OPERATION OF
THE SINKING FUND
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date
but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding the foregoing, the
Company may not, prior to , redeem any Securities of this series as contemplated by [if applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than
% per annum].
[If applicable, insert — The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [if applicable, insert — not less than $ (“mandatory sinking fund”) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert —
mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert — The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is convertible into Common Stock or Preferred Stock of the Company, specify the conversion features.]
[If the Security is not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of
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principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to — insert formula for
determining the amount. Upon payment (a) of the amount of principal so declared due and payable and (b) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company’s obligations on the Securities of this series shall terminate.]
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the modification or waiver of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of more than 50% in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders
of more than 50% in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance with certain provisions of the Indenture and certain past
Defaults (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written consent of each Holder affected) under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
[If the Security is an Original Issue Discount Security, — In determining whether the
Holders of the requisite aggregate principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or whether a quorum is present at a meeting of Holders of
Securities, the principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon the acceleration of
the Maturity thereof.]
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the
right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee satisfactory indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and
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unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of
$ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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SECTION 2.04.
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FORM OF LEGEND FOR GLOBAL SECURITIES.
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Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED OR TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY,
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EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO OR TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
., HAS AN INTEREST HEREIN.
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SECTION 2.05.
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FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
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Subject to Section 6.14, the
Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series
designated herein and referred to in the within-mentioned Indenture.
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U.S. Bank National Association, As Trustee
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By
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Authorized Signatory
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ARTICLE THREE
THE SECURITIES
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SECTION 3.01.
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AMOUNT UNLIMITED; ISSUABLE IN SERIES
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The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established, in or pursuant to a Board Resolution, and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
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(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to
Sections 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder) and whether that series may be reopened for additional Securities of
that series; in the event that such series of Securities may be reopened from time to time for issuance of additional Securities of such series, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the
prior Securities of such series or whether the Company may establish additional or different terms with respect to such additional Securities;
(3) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal or installments of principal of any Securities of the series is payable or the
method of determination thereof and any rights to extend such date or dates;
(5) the rate or rates at which any Securities
of the series shall bear interest, if any, or the method if any by which such rate or rates are to be determined, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where, subject
to the provisions of Section 10.02, the principal of and any interest and premium on Securities of the series shall be payable, any Securities of the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(7) the period or periods within which, or the method, if any, by which such period or periods are to be determined, the price
or prices at which, or the method, if any, by which such price or prices are to be determined, and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company, and if other than by
a Company Order, the manner in which any election by the Company to redeem the Securities shall be evidenced;
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(8) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, the conditions, if any, giving rise to such obligation, and the period or periods within which, or the method, if any, by which such
period or periods are to be determined, the price or prices at which or the method, if any, by which such price or prices are to be determined and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole
or in part, and any provisions for the remarketing of such Securities;
(9) the denominations in which any Securities of
the series shall be issuable, if other than in denominations of $1,000 and any integral multiple thereof;
(10) if the
amount of payments of principal of or any interest or premium on any Securities of the series is to be determined with reference to an index, formula or other method, the manner in which such amounts shall be determined and the calculation agent, if
any, with respect thereto;
(11) if other than the currency of the United States of America, the currency, currencies, or
currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.02;
(12) if the principal of or any premium or
interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal
amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the
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manner in which such amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to
Section 13.02 or Section 13.03 or both such Sections and, if other than by a Company Order, the manner in which any election by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case and if other than DTC, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in
Section 2.04 and any circumstances in addition to or in lieu of those set forth in Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than the Depositary or its nominee for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(18) if other than as defined in Section 1.02, the meaning of “Business Day” when used with respect to any
Securities of the series;
(19) if the Securities of the series may be issued or delivered (whether upon original issuance
or upon exchange of a temporary Security of such series or otherwise), or any installment of principal of or any interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to
those specified in this Indenture, the form and terms of such certificates, documents or conditions;
(20) the terms of any
right to convert, exercise or exchange Securities of the series into shares of Common Stock or Preferred Stock of the Company;
(21) the listing, if any, of the Securities of the series on any securities exchange;
(22) any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;
(23) the location where the Security Register will be maintained and the location of the office maintained in accordance with
Section 10.02; and
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(24) any other terms, covenants or features of the series (which terms, covenants
and features shall not be inconsistent with the provisions of this Indenture or the requirements of the Trust Indenture Act, except as permitted by Section 9.01(6)).
All Securities of any one series shall be substantially identical except as to denomination and the rate or rates of interest, if any, and
Stated Maturity, the date from which interest, if any, shall accrue and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in an Officers’ Certificate pursuant to this Section 3.01 or in any indenture
supplemental hereto; provided, however, that a different CUSIP number shall be obtained for Securities of any one series that are not identical (except as to denomination). All Securities of any one series need not be issued at the same time, unless
otherwise provided pursuant to Section 3.01.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the
terms of the series. With respect to Securities of a series subject to a Periodic Offering, such Board Resolution or Officers’ Certificate or supplemental indenture may provide general terms for Securities of such series and provide either that
the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company, or one or more of the Company’s agents designated in an Officers’ Certificate, in
accordance with other procedures specified in a Company Order as contemplated by the third paragraph of Section 3.03.
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SECTION 3.02.
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DENOMINATIONS.
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Unless otherwise provided in the applicable Officers’ Certificate or
supplemental indenture contemplated by Section 3.01, the Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the
absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
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SECTION 3.03.
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EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
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The Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive Officer, its President, one of its Vice Presidents, its Chief Financial Officer or its Treasurer. The signature of any such officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this Indenture, the Company
may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities; provided, however, that, with respect to Securities of a series subject to a Periodic Offering, (1) such Company Order may be delivered by the Company to the Trustee prior to the delivery to the Trustee
of such Securities for authentication and delivery, (2) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to a Company Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by a Company Order and (3) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if any, and any other terms of Securities of such series shall be determined by a Company Order or pursuant to such procedures.
If the forms or terms of the Securities of the series have been established in or pursuant to one or more Officers’ Certificates as
permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, an Opinion of Counsel stating:
(1) that the form and terms of such Securities
have been duly authorized by the Company and established in conformity with the provisions of this Indenture; and
(2) that
such Securities when completed, authenticated and delivered by the Trustee in accordance with this Indenture and issued and delivered by the Company and paid for in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles;
provided, however, that, with respect to Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication of Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such Securities (when established in accordance with such
procedures as may be specified from time to time in a Company Order all as contemplated by and in accordance with a Board Resolution or an Officers’ Certificate pursuant to Section 3.01, as the case may be) will have been, duly authorized
by the Company and established in conformity with the provisions of this Indenture; and
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(y) that such Securities when (i) executed by the Company,
(ii) completed, authenticated and delivered by the Trustee in accordance with this Indenture, and (iii) issued and delivered by the Company and paid for in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and other documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of such series unless and until it has received written notification that such opinion or other documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s instructions to authenticate and deliver such Securities do not violate any rules, regulations or
orders of any governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 3.01
and of the preceding paragraph, if all Securities of a series are subject to a Periodic Offering, it shall not be necessary to deliver the Board Resolution and Officers’ Certificate otherwise required pursuant to Section 3.01 or the
Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder.
Each Depositary designated for a Global Security in
registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Notwithstanding the foregoing, if any Security shall have been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09 together with a written statement (which need not comply with Section 1.03 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits
of this Indenture.
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SECTION 3.04.
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TEMPORARY SECURITIES.
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Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed, photocopied or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution
of such Securities. Any such temporary Securities may be in global form, representing such of the Outstanding Securities of such series as shall be specified therein.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and (in accordance with a
Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to DTC or another
Depositary designated pursuant to Section 3.01.
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SECTION 3.05.
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REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
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The Company shall cause to be kept at an
office in New York City designated by the Trustee, a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby initially appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities as herein provided. In the event that the Trustee shall cease to be the Security Registrar, it shall have the right to examine the Security Registrar at all
reasonable times.
Upon surrender for registration of transfer of any Security at the office or agency of the Company designated pursuant
to Section 10.02 for such purpose in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized
denomination or denominations of a like Stated Maturity and of a like series and aggregate principal amount and tenor.
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At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denomination or denominations, of a like Stated Maturity and of a like series and aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 3.04, 9.06 or 11.07 not involving any transfer.
The Company may but shall not be required (a) to issue, register the
transfer of or exchange Securities of any series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that
series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision of this Section or Sections 3.03 and 3.04, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global Security representing all or a portion of the Securities of
32
a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
(3) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (a) such Depositary has notified the
Company that it is unwilling, unable to continue as Depositary for such Global Security or has ceased to be a clearing agency registered under the Exchange Act and the Company has not appointed a successor within 90 days after such notification,
(b) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so exchangeable, subject to such Depositary’s procedures, (c) there shall have occurred and be continuing an Event of Default with
respect to such Global Security or (d) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
(4) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(5) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06, or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a nominee thereof.
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SECTION 3.06.
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MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
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If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide or protected purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and
of a like Stated Maturity, bearing a number not contemporaneously Outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new
Securities under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in exchange for any mutilated Security or in lieu
of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities of that series.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07.
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PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
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Unless otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment.
Any interest on any
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of that series and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01) for the Securities of such series equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the
34
date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of that series at his or her address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of that series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any particular series in any other lawful
manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
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SECTION 3.08.
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PERSONS DEEMED OWNERS.
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Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantors, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any,
and (except as otherwise specified as contemplated by Section 3.01 and subject to Section 3.05 and Section 3.07) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Guarantor, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of
any beneficial interest in any Global Security held directly or indirectly on its behalf by a Depositary (or its nominee) shall have any rights under this Indenture with respect to such Global Security or any Security represented thereby, and such
Depositary may be treated by the Company, the Guarantors, the Trustee, and any agent of the Company, the Guarantors or the Trustee as the owner of such Global Security or any Security represented thereby for all purposes whatsoever. None of the
Company, the Guarantors, the
35
Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company,
the Guarantors, the Trustee, or any agent of the Company, the Guarantors or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and such holders of
beneficial interests in the Securities, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominees) as Holder of any Security.
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SECTION 3.09.
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CANCELLATION.
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All Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any sinking fund payment, shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and all Securities so delivered shall be promptly canceled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever (including Securities received by the Company in exchange or payment for other Securities of
the Company) and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered to the
Trustee shall be promptly canceled by the Trustee. The Company may not reissue, or issue new Securities to replace, Securities it has paid for or delivered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and the
Trustee shall deliver a certificate of such disposition to the Company upon receipt of a request therefor.
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SECTION 3.10.
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COMPUTATION OF INTEREST.
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Except as otherwise specified as contemplated by Section 3.01
for Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 3.11.
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CUSIP AND ISIN NUMBERS.
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The Company in issuing the Securities may use “CUSIP” or
“ISIN” numbers or both numbers (if then generally in use), and, if so, the Trustee shall use such “CUSIP” or “ISIN” numbers or both numbers in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers.
36
ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 4.01.
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SATISFACTION AND DISCHARGE OF INDENTURE.
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This Indenture shall upon Company Request cease to be
of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, upon receipt of a
Company Order and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when:
(1) either
(a) all Securities of a series theretofore authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of that series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(b) all such Securities of that series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee, as trust funds in trust for the purpose, Cash, U.S. Government Obligations, or a combination thereof, in an amount sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire indebtedness on such Securities of that series not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the
case of Securities of that series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
37
(2) the Company has paid or caused to be paid all other sums payable hereunder by
the Company relating to that series of Securities;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party or by which the
Company is bound;
(4) the Company has deposited irrevocable instructions to the Trustee to apply the deposited money
toward the payment of such Securities of that series at Maturity or the Redemption Date, as the case may be; and
(5) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series of
Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Sections 6.07 and 13.05, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if Cash, U.S. Government Obligations, or a combination thereof, shall have been deposited with the Trustee pursuant to
subclause (b) of clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
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SECTION 4.02.
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APPLICATION OF TRUST MONEY.
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Subject to the provisions of the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with, or received by,
the Trustee, but such money need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
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SECTION 5.01.
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EVENTS OF DEFAULT.
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“Event of Default,” wherever used herein with respect to
Securities of any series, means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 3.01 (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
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(1) Default in the payment of any interest upon any Security of that series when
it becomes due and payable, and continuance of such Default for a period of 30 days;
(2) Default in the payment of
principal of or any premium on any Security of that series at its Maturity;
(3) Default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series, and continuance of such Default for a period of 30 days;
(4) failure by the Company or any Guarantor to comply with its obligations under Article Eight;
(5) Default in the performance, or breach, of any covenant or warranty of the Company or any Guarantor in this Indenture or the
Securities (other than a covenant or warranty whose performance or breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of Securities of other series), and
continuance of such Default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series a written notice specifying such Default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(6) the Company or any Significant Subsidiary defaults under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Significant Subsidiaries (or the payment of which is guaranteed by the Company or any of its Significant Subsidiaries), other than
Indebtedness owed to the Company or a Significant Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, which default:
(a) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of
any grace period provided in such Indebtedness (“payment default”); or
(b) results in the cross-acceleration of
such Indebtedness prior to its maturity (the “cross acceleration provision”);
and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $50 million or more;
(7) the Company or a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
39
(a) commences a voluntary case or proceeding;
(b) consents to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for any substantial part of its property;
(d) makes a general assignment for the benefit of its creditors;
(e) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it;
(f) takes any corporate action to authorize or effect any of the foregoing; or
(g) takes any comparable action under any foreign laws relating to insolvency; or
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief in an involuntary case against the Company or a Significant Subsidiary pursuant to or within the meaning of
any Bankruptcy Law;
(b) appoints a Custodian for all or substantially all of the property of the Company or a Significant
Subsidiary; or
(c) orders the winding up or liquidation of the Company or a Significant Subsidiary; and in each case the
order, decree or relief remains unstayed and in effect for 60 days;
(9) any Subsidiary Guarantee ceases to be in full
force and effect (except as contemplated by the terms thereof) or any Guarantor or Person acting by or on behalf of such Guarantor denies or disaffirms its obligations under this Indenture or any Subsidiary Guarantee; or
(10) any other Event of Default provided with respect to Securities of that series.
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SECTION 5.02.
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ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default specified in Section 5.01(7) or 5.01(8) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series by notice to the Company and the Trustee, may declare the principal amount of (or, if any of the Securities of that series are
40
Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) all the Securities of that series to be immediately due and
payable. Upon such a declaration, such principal (or portion thereof) together with accrued interest and all other amounts owing hereunder, shall be due and payable immediately. If an Event of Default specified in Section 5.01(7) or 5.01(8)
occurs, the principal amount (or portion thereof) and accrued interest of all the Securities of each series then outstanding shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any
Securityholders.
At any time after such a declaration of acceleration with respect to Outstanding Securities has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series , by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or
deposited with the Trustee in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series) a sum sufficient to pay:
(a) all overdue interest on all Securities,
(b) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(c) to
the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than
the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
The Trustee shall have no obligations or liability for failure to act in connection with any Event of Default not actually known to a
Responsible Officer.
41
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SECTION 5.03.
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COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
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The Company covenants that
if:
(1) Default is made in the payment of any interest on any Security when such interest becomes due and payable and such
Default continues for a period of 30 days, or
(2) Default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such right, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 5.04.
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TRUSTEE MAY FILE PROOFS OF CLAIM.
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In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company, the Guarantors or any other obligor upon the Securities, or the property of the Company, the Guarantors or of such
other obligor or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities, of principal and premium, if any, and interest
owing and unpaid in respect of the Securities and to file such 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
42
and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
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SECTION 5.05.
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TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
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All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
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SECTION 5.06.
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APPLICATION OF MONEY COLLECTED.
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Any money collected by the Trustee pursuant to this Article
with respect to the Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all
amounts due the Trustee under Section 6.07;
Second: To the payment of the amounts then due and unpaid for principal of or any
premium and interest on the Securities in respect of which or for the benefit of which such money had been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, and
any premium and interest, respectively; and
Third: The balance, if any, to the Company.
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SECTION 5.07.
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LIMITATION ON SUITS.
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No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such Holders of Securities of that series.
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SECTION 5.08.
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RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
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Notwithstanding any other
provision of this Indenture, the right, which is absolute and unconditional, of any Holder of any Security to receive payment of the principal of and (subject to Section 3.07) interest and premium, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) held by such Holder, on or after the respective due dates expressed in the Securities or any Redemption Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or affected adversely without the consent of each such Holder.
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SECTION 5.09.
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RESTORATION OF RIGHTS AND REMEDIES.
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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
44
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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SECTION 5.10.
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RIGHTS AND REMEDIES CUMULATIVE.
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Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 5.11.
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DELAY OR OMISSION NOT WAIVER.
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No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 5.12.
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CONTROL BY HOLDERS.
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The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture or
with the Securities;
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction; and
(3) the Trustee need not take any action which might involve it in personal liability.
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SECTION 5.13.
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WAIVER OF PAST DEFAULTS.
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The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series that would be affected by such a default (all such series voting as a single class) may, on behalf of the Holders of all the Securities of such series, waive any past Default hereunder with respect to such
series and its consequences, except a Default:
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(1) in the payment of the principal of or any premium or interest on any Security
of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
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SECTION 5.14.
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UNDERTAKING FOR COSTS.
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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, 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 5.14
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.07 or 5.08 or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Securities of any series.
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SECTION 5.15.
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STAY, EXTENSION AND USURY LAWS.
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The Company and each of 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, extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE SIX
THE TRUSTEE
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SECTION 6.01.
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CERTAIN DUTIES AND RESPONSIBILITIES.
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The duties and responsibilities of the Trustee shall be
as provided by this Indenture and the Trust Indenture Act.
(a) Except during the continuance of an Event of Default with respect to the
Securities of any series,
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(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
(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; but in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but not to verify the contents thereof.
(b) In case an Event of Default with respect to the Securities of any series 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 its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the Outstanding Securities pursuant to Section 5.12 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee (when
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serving in such capacity or in the capacity of Paying Agent, Security Registrar, or any other capacity under this Indenture) shall be subject to the provisions of this Section.
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SECTION 6.02.
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NOTICE OF DEFAULTS.
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Within 90 days after the occurrence of any Default or Event of Default
hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such Default or Event of Default
hereunder known to a Responsible Officer of the Trustee, unless such Default or Event of Default shall have been cured or waived; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of (or
premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series.
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SECTION 6.03.
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CERTAIN RIGHTS OF TRUSTEE.
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Subject to the provisions of Section 6.01:
(1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order or as otherwise expressly provided herein, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate or an Opinion of
Counsel;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs,
48
expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and
this Indenture;
(9) 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 (when serving in such capacity or in the capacity of Paying Agent, Security Registrar or any other capacity under this Indenture), and each officer,
director and employee of the Trustee and any agent, custodian and other Person employed by the Trustee to act hereunder;
(10) 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 person authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded;
(11) the permissive right of the Trustee to
take actions permitted by this Indenture shall not be construed as a duty or obligation; and
(12) the Trustee shall not be
required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture.
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SECTION 6.04.
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NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
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The recitals contained herein and in
the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
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SECTION 6.05.
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MAY HOLD SECURITIES.
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The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it
were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
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SECTION 6.06.
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MONEY HELD IN TRUST.
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Money held by the Trustee for any series of Securities in trust hereunder
need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
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SECTION 6.07.
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COMPENSATION AND REIMBURSEMENT.
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The Company agrees:
(1) to pay to the Trustee from time to time compensation for all services rendered by it hereunder as shall be agreed upon in
writing by the Trustee and the Company (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel).
The Company and the Guarantors shall indemnify, defend and hold the Trustee and any predecessor Trustee (and their officers, directors,
employees and agents) harmless for and against, any and all loss, liability, damages, claim or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
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The Company need not reimburse any expense, disbursement or advance, and the Company and the
Guarantors need not indemnify, defend or hold the Trustee or predecessor Trustee (or their officers, directors, employees or agents) harmless for and against any loss, liability, damages, claims or expenses incurred by the Trustee, to the extent
such expense, disbursement, advance, loss, liability, damages, claims or expenses was proven to have been caused by the Trustee’s negligence or bad faith.
The foregoing provisions shall be applicable to the Trustee when serving in its capacity as Trustee and when serving as Paying Agent, Security
Registrar or in any other capacity under this Indenture.
The Trustee shall have a lien prior to the Securities as to all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 6.07, except with respect to funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(7) or 5.01(8), such
expenses (including the reasonable fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Law.
This section shall survive the discharge of the Indenture and the resignation or removal of the Trustee.
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SECTION 6.08.
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CONFLICTING INTERESTS.
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If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be subject to disqualification if the Company has sustained the burden of proving, upon application to the Commission and after opportunity for hearing thereon, that the conflicting interest in
question is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting hereunder.
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SECTION 6.09.
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CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
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There shall at all times be one (and only one)
Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person files reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so filed. If at any time the Trustee with respect
to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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SECTION 6.10.
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RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor Trustee with respect to the Securities of such series.
The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (a) the Company by a Company Order may remove the Trustee with respect to all Securities or Securities of any series, or
(b) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees with respect thereto. If an instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Company Order, shall promptly appoint a successor Trustee or
52
Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall have not been appointed by the Company pursuant to Section 6.10, then a successor Trustee may be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee. If no successor Trustee with respect to the Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.07. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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SECTION 6.11.
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of all amounts due and owing to the retiring Trustee, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one
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Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject nonetheless to its liens, if any, provided for in Section 6.07.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 6.12.
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authentication Agent for such series then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authentication Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authentication Agent had itself
authenticated such Securities.
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SECTION 6.13.
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PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
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If and when the Trustee shall be or become
a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent provided therein.
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SECTION 6.14.
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APPOINTMENT OF AUTHENTICATING AGENT.
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At any time when any of the Securities of any series
remain Outstanding, the Trustee, with the concurrence of the Company, may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue, and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal, state or District of Columbia authority. If such Authenticating Agent files reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so filed. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give written notice of such appointment in the manner provided in Section 1.07 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
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The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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[Name of Trustee],
As Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 7.01.
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COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
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If the Trustee is not acting as
Security Registrar for the Securities of any series and to the extent otherwise required by the Trust Indenture Act, the Company will furnish or cause to be furnished to the Trustee in writing:
(1) at least five Business Days before each Interest Payment Date for each series of Securities (or, if there is no Interest
Payment Date relating to a series of Securities, semi-annually, not later than January 15 and July 15 in each year), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of
each series as of such dates, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.
The Company shall otherwise comply with Section 312(a) of the Trust Indenture Act.
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SECTION 7.02.
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PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
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The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of
Holders made pursuant to the Trust Indenture Act.
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SECTION 7.03.
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REPORTS BY TRUSTEE.
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The Trustee shall transmit to Holders within 60 days of May 15 of
each year such reports concerning the Trustee and its actions under this Indenture as may be required and in the manner specified in the Trust Indenture Act with respect to the 12-month period ending on May 15 of such year.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
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SECTION 7.04.
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REPORTS BY COMPANY.
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The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission; or, if the Company is not
required to file information, documents or reports pursuant to either of said Sections, then it will file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the
information, documents and other reports, and such summaries thereof, which may be required pursuant to Section 13 of the Exchange Act in respect of which a security listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations. The Company will be deemed to have furnished such reports to Holders of Securities if it has filed such reports with the Commission using the EDGAR filing system and such reports are publicly
available via EDGAR.
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Delivery of such reports, information and documents to the Trustee 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 with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS
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SECTION 8.01.
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COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
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The Company shall not merge or
consolidate with or into another other Person and shall not sell, lease or convey, in a single transaction or in a series of transactions, all or substantially all of its assets to any Person, unless:
(1) the surviving, continuing or successor corporation (if other than the Company) or the Person that acquires all or
substantially all of its assets is a corporation organized and existing under the laws of the United States or a state thereof or the District of Columbia and expressly and unconditionally assumes all of its obligations under the Securities and this
Indenture or assumes such obligations as a matter of law;
(2) immediately after giving effect to such merger,
consolidation, sale, lease or conveyance, there is no Default or Event of Default under this Indenture; and
(3) the
Company delivers or causes to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such merger, consolidation, sale, lease or conveyance complies with this Indenture.
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SECTION 8.02.
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SUCCESSOR SUBSTITUTED.
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The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the case of a lease of all or substantially all of its properties and assets, the Company shall be discharged from all obligations and covenants under this Indenture and the
Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
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SECTION 9.01.
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SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
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Without the consent of any Holders, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee, when requested by or pursuant to a Company Request, at any time and from time to time, may amend this Indenture or enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any such successor of the obligations of the Company herein and in the Securities; or
(2) to add a Subsidiary as a Guarantor of the Securities; or
(3) to add to the covenants of the Company and the Subsidiaries, as applicable, for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(4) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(5) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(6) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (a) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to such provision or (b) shall become effective only when there is no such Security Outstanding; or
(7) to secure the Securities pursuant to the requirements of Section 10.07 or otherwise; or
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(8) to establish the form or terms of Securities of any series as permitted by
Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or
(10) to comply with any requirement of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act; or
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause
(11) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
After an amendment
or supplement under this Section becomes effective, the Company shall mail to the Securityholders of the series affected thereby a notice briefly describing such amendment or supplement. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment or supplement under this Section.
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SECTION 9.02.
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SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
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With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of all series affected by such
supplemental indenture (each series voting together as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution and the Trustee, when requested by a Company Request, may enter
into an indenture or indentures supplemental hereto or amend this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture and, subject to Section 5.13, any past
default or compliance with any provisions of this Indenture with respect to a particular series of Securities may be waived with the written consent of the Holders of a majority in principal amount of the Outstanding Securities (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of such series (all such series voting as a single class). However, no such supplemental indenture, amendment or waiver shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption
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thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or any repayment date); or
(2) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture or amendment, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided
for in this Indenture; or
(3) impair any right (if provided for in Section 3.01) of a Holder to exchange or convert
Securities for or into other securities; or
(4) change the relative seniority or ranking of the Security; or
(5) release any Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with Sections
5.13 or 14.03; or
(6) modify any of the provisions of this Section, Section 5.13 or Section 9.01, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 9.01, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.01(9).
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been
included solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, waiver or supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder
of a particular series of Securities given in connection with a tender or exchange of such Holder’s Securities will not be rendered invalid by such tender or exchange.
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After an amendment or supplement under this Section becomes effective, the Company shall mail to
the Securityholders of the series affected thereby a notice briefly describing such amendment or supplement. The failure to give such notice to all Securityholders of any series, or any defect therein, shall not impair or affect the validity of an
amendment or supplement under this Section.
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SECTION 9.03.
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EXECUTION OF SUPPLEMENTAL INDENTURES.
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In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee’s own rights, duties, privileges, protections, benefits or immunities under this Indenture or otherwise.
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SECTION 9.04.
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EFFECT OF SUPPLEMENTAL INDENTURES.
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Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 9.05.
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CONFORMITY WITH TRUST INDENTURE ACT.
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Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
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SECTION 9.06.
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REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
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Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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SECTION 9.07.
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REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
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A consent to an amendment, supplement or a
waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not
made on the Security. Any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives a
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written notice of revocation before the date the amendment, supplement or waiver becomes effective or otherwise in accordance with any related solicitation documents. After an amendment,
supplement or waiver becomes effective, it shall bind every Securityholder unless it makes a change described in any of clauses (1) through (6) of Section 9.02, in which case the amendment, supplement, waiver or other action shall
bind each Securityholder who has consented to it and every subsequent Securityholder that evidences the same debt as the consenting Holder’s Securities. An amendment, supplement or waiver shall become effective upon receipt by the Trustee of
the requisite number of written consents under Section 9.02.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or take any other action described in Section 9.02 above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be Holders after such record date. If the Trustee sets a record date for a vote or other action to be taken by Holders of the Securities, that vote or action may be taken only
by persons who are holders of Outstanding Securities on the record date and the action voted upon must be effective within 90 days following the record date.
ARTICLE TEN
COVENANTS
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SECTION 10.01.
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PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
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The Company covenants and agrees for the benefit
of the Holders of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. In the absence of
contrary provisions with respect to the Securities of any series, interest on the Securities of any series may, at the option of the Company, be paid by check mailed to the address of the Person entitled thereto as it appears on the Security
Register; provided, however, that payments of interest will be made by wire transfer if a Holder of at least $1.0 million in principal amount of Securities has given wire transfer instructions to the Trustee at least five business days prior to the
applicable Interest Payment Date. An installment of principal of or interest on the Securities shall be considered paid on the date it is due if the Trustee or a Paying Agent (other than the Company or an Affiliate of the Company) holds on that date
immediately available funds designated for and sufficient to pay such installment. To the extent lawful, and if so provided for with respect to a particular series of Securities, the Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the rate per annum borne by the applicable series of Securities.
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SECTION 10.02.
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MAINTENANCE OF OFFICE OR AGENCY.
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As long as any of the Securities of a series remain
Outstanding, the Company will maintain in each Place of Payment for such series an office or agency where Securities of that
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series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. An office in New York City
designated by the Trustee shall be such office or agency of the Company, unless the Company shall designate and maintain some additional office or agency for one or more of such purposes. If at any time the Company shall fail to maintain any such
required office or agency in respect of any series of Securities or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and demands may be made or served
at the address of the Trustee set forth in Section 1.06, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
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SECTION 10.03.
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MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
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If the Company shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due
date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying
Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (b) during the continuance of any Default by the Company (or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company upon receipt of a Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, if any such money represents the principal of, premium, if any, or interest payable with respect to Securities that are in bearer form
or that are registered to bearer, the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in each Place of Payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 10.04.
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COMPLIANCE CERTIFICATE.
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The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, one of the signatures of which shall be that of the Company’s principal executive, financial or accounting officer, stating that in the course
of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default or Event of Default and whether or not, to the best knowledge of the signers thereof, the Company is in Default in the
performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) or there is an Event of Default and, if the Company shall be in Default
or there is an Event of Default, specifying all such Defaults and Events of Default and the nature and status thereof.
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SECTION 10.05.
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CORPORATE EXISTENCE.
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Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents (as the same may be amended from time to time), rights (charter and statutory), licenses and franchises;
provided, however
, that the Company shall not be required to preserve any such right, license or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the
Company
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and each of its Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, disadvantageous in any material respect to the Holders.
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SECTION 10.06.
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PAYMENT OF TAXES AND OTHER CLAIMS.
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The Company will or will cause a Subsidiary to pay or
discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary;
provided, however
, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if
necessary (in the good faith judgment of management of the Company), are being maintained in accordance with generally accepted accounting principles in the United States of America or if the Company shall determine that the failure to pay would not
have a material adverse effect on the Company and its Subsidiaries taken as a whole.
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SECTION 10.07.
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LIMITATIONS ON LIENS.
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The Company shall not, and shall not permit any Subsidiary to issue,
incur, assume or guarantee any Indebtedness secured by a Lien, other than a Permitted Lien, upon any Property of the Company or any Subsidiary, without in any such case making effective provision whereby the Securities shall be secured equally and
ratably with, or prior to, such Indebtedness for so long as such Indebtedness shall be so secured unless, after giving effect to such Lien, the aggregate amount of secured Indebtedness then outstanding (excluding Indebtedness secured by Permitted
Liens) plus the value (as defined in Section 10.08) of all Sale and Leaseback Transactions (other than those described in paragraphs (1) and (2) of Section 10.08) then outstanding would not exceed 15% of the Company’s
Consolidated Net Worth.
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SECTION 10.08.
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RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
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The Company will not itself, and it will not
permit any Subsidiary to, enter into any Sale and Leaseback Transaction unless either:
(1) the Sale and Leaseback
Transaction:
(a) involves a lease for a period, including renewals, of not more than three years;
(b) involves newly constructed property, and the sale or transfer occurs within 120 days after the completion of construction
of full operation thereof;
provided, however
, that if the Sale and Leaseback Transaction involves new construction on real property acquired by the Company more than 120 days prior to the date of the Sale and Leaseback Transaction, then such
Sale and Leaseback Transaction shall be deemed a permissible Sale and Leaseback
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Transaction under this clause but only to the extent of the value of the newly constructed property;
(c) occurs within 120 days from the date of the acquisition of the property subject thereto;
(d) involves the Company’s Headquarters Facility; or
(e) is with the Company or one of its Subsidiaries; or
(2) the Company or any Subsidiary, within 120 days after the Sale and Leaseback Transaction shall have occurred, applies or
causes to be applied an amount equal to the value of the property so sold and leased back at the time of entering into such arrangement to the prepayment, repayment, redemption, reduction or retirement of any Indebtedness of the Company or any
Subsidiary that is not subordinated to the Securities and that has a Stated Maturity of more than 12 months; or
(3) the
Company or such Subsidiary would be entitled pursuant to Section 10.07 to create, incur, issue or assume Indebtedness secured by a Lien, other than a Permitted Lien, on the property without equally and ratably securing the Securities.
As used in this Section 10.08, the term “value” shall mean, with respect to a Sale and Leaseback Transaction, as of any
particular time an amount equal to the greater of (i) the net proceeds of sale of the property leased pursuant to such Sale and Leaseback Transaction, or (ii) the fair value of such property at the time of entering into such Sale and
Leaseback Transaction as determined by the Board of Directors of the Company, in each case multiplied by a fraction of which the numerator is the number of full years of remaining term of the lease (without regard to renewal options) and the
denominator is the full years of the full term of the lease (without regard to renewal options).
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SECTION 10.09.
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ADDITIONAL SUBSIDIARY GUARANTEES.
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To the extent provided for in any series of Securities under
this Indenture, each Subsidiary of the Company that incurs, has outstanding or Guarantees any Specified Indebtedness shall, simultaneously with such incurrence or guarantee (or, if the Subsidiary has outstanding or Guarantees Specified Indebtedness
at the time of its creation or acquisition, at the time of such creation or acquisition), become a Guarantor and execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary shall agree to Guarantee the
Company’s obligations under the Securities on the terms set forth in Article Fourteen (except as otherwise specified as contemplated by Section 3.01 for such Securities).
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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SECTION 11.01.
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APPLICABILITY OF ARTICLE.
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Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
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SECTION 11.02.
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ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Securities
shall be pursuant to a Board Resolution and evidenced by a Company Order. In case of any redemption at the election of the Company of less than all of the Securities of any series (including any such redemption affecting only a single Security), the
Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
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SECTION 11.03.
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SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
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If less than all the Securities of any
series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, in compliance with the requirements of the principal national securities exchange, if any, on which such
Securities are listed, or, if such Securities are not so listed, pro rata or by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate (and in such manner as complies with applicable legal requirements) and
which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. The
selection, by the Trustee, of the Securities to be redeemed shall be conclusive and binding and the Trustee shall incur no liability in connection with such selection.
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The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Notwithstanding anything else contained in this Section 11.03, the selection of Securities, or portions thereof, that are represented by
a Global Security or that are held by or on behalf of a Depositary, in the case of any partial redemption, shall also be made in accordance with the applicable rules and procedures of such Depositary and neither the Trustee nor the Company shall
have any liability or responsibility with respect thereto.
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SECTION 11.04.
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NOTICE OF REDEMPTION.
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Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at the Holder’s address appearing in the Security Register, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Securities in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.
All notices of redemption shall identify the Securities being redeemed
(including the CUSIP or ISIN number) and state:
(1) the Redemption Date,
(2) the Redemption Price (or the method of calculation thereof if the price is not determinable as of the date of the notice of
redemption),
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are
to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become due and payable
upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price and accrued interest,
if any,
(6) that the redemption is for a sinking fund, if such is the case;
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price, and
(9) that no representation is made as to the accuracy or correctness of the CUSIP and/or ISIN numbers listed in such notice or
printed on the Securities.
In addition, unless otherwise specified in accordance with Section 3.01, such notice may state that
(1) the redemption will be conditional upon the Trustee or the Paying Agent receiving sufficient funds to pay the principal, premium, if any, and interest on the Securities subject to redemption on the Redemption Date and (2) if the
Trustee or the Paying Agent does not receive those funds, the redemption notice will not apply, and the Company will not be required to redeem the Securities subject to redemption.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
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SECTION 11.05.
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DEPOSIT OF REDEMPTION PRICE.
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On or prior to 10:00 a.m., New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption that are beneficially
owned by the Company and have been delivered by the Company to the Trustee for cancellation.
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SECTION 11.06.
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SECURITIES PAYABLE ON REDEMPTION DATE.
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Notice of redemption having been given as aforesaid,
the Securities or portions of Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (together with accrued interest, if any, to but not including the Redemption Date), and from
and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the only right of the Holders thereof will be to receive payment of the redemption
price and, subject to the next sentence, unpaid interest on such Securities to the Redemption Date. Upon surrender of any such Security for redemption in accordance with said notice, such
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Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however
, that, unless otherwise specified as contemplated by
Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
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SECTION 11.07.
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SECURITIES REDEEMED IN PART.
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Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or the
Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered;
provided, however
, that if a Global Security
is so surrendered, such new Security so issued shall be a new Global Security in a denomination equal to the unredeemed portion of the principal of the Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
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SECTION 12.01.
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APPLICABILITY OF ARTICLE.
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The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
“mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of the Securities of such series.
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SECTION 12.02.
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SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
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The Company (a) may deliver
Outstanding Securities of a series with the same issue date, interest rate and Stated Maturity (other than any previously called for redemption), and (b) may apply as a credit Securities of a series with the same issue date, interest rate and
Stated Maturity which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of such series with the same issue date, interest rate and Stated Maturity; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
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SECTION 12.03.
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REDEMPTION OF SECURITIES FOR SINKING FUND.
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Not less than 35 days (or such shorter period as
shall be acceptable to the Trustee) prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date, the Securities to be redeemed upon such sinking fund payment date shall be selected in the
manner specified in Section 11.03 and the Trustee shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 13.01.
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COMPANY’S RIGHT WITH RESPECT TO DEFEASANCE OR COVENANT DEFEASANCE.
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The Company will have
the right, at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities, as the case may be (other than Securities of a series designated pursuant to Section 3.01 as not being defeasible
pursuant to Section 13.02 or 13.03), upon compliance with the conditions set forth below in this Article. Any request under this Article shall be evidenced by a Company Order or in another manner specified as contemplated by Section 3.01
for such Securities.
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SECTION 13.02.
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DEFEASANCE AND DISCHARGE.
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Upon the Company’s exercise of its right to have this Section
applied to any Securities or any series of Securities, as the case may be, the Company and the Guarantors shall
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be deemed to have been discharged from its obligations with respect to such Securities and the Subsidiary Guarantees, respectively, as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and the Subsidiary Guarantees, respectively, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 13.05 and the other sections of this Indenture referred to in clauses
(a) and (b) below, and to have satisfied all its other obligations under such Securities, the Subsidiary Guarantees and this Indenture insofar as such Securities and the Subsidiary Guarantees are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 13.04 and as more fully set forth in such Section, (i) payments in respect of the principal of and any premium and interest on the Outstanding Securities on the Stated Maturity of such principal or
installment of principal of and any premium or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities on the day on which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series, (b) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder including the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange and the Company’s obligation in connection therewith, and (d) this Article. Subject to compliance with
this Article, the Company may exercise its option to have this Section applied to any Securities and any Subsidiary Guarantees notwithstanding the prior exercise of its option to have Section 13.03 applied to such securities.
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SECTION 13.03.
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COVENANT DEFEASANCE.
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Upon the Company’s exercise of its right to have this Section
applied to any Securities or any series of Securities, as the case may be, and any Subsidiary Guarantees (a) the Company shall be released from its obligations under Sections 10.07 and 10.08, and any covenants provided pursuant to Sections
9.01(3) for the benefit of the Holders of such Securities and (b) the occurrence of any event specified in Sections 5.01(4) (with respect to Sections 10.07 and 10.08, and any such covenants provided pursuant to Sections 9.01(3)) shall be deemed
not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Sections 5.01(4) and 5.01(5)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
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SECTION 13.04.
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CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
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The following shall be the conditions to the
application of Section 13.02 or Section 13.03 to any Securities or any series of Securities, as the case may be, and any Subsidiary Guarantees:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (a) Cash in an amount, or (b) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will provide (without reinvestment), not later than one day before the due date of any payment, money in an amount, or (c) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of and any premium and interest on such Securities on the respective Stated Maturities or Redemption Date, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means
(x) any security which is (i) a direct obligation of the United States of America for the timely payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in either case (a) or (b) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of
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the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount in the same manner and at the same times as would
be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have
Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) Such provision would not cause any Outstanding
Securities if then listed on any securities exchange, to be delisted as a result of such deposit.
(5) No Default or Event
of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or,
with regard to any such event specified in Sections 5.01(7) and 5.01(8), on the later of (a) the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 91st day) or
(b) the day ending on the day following the expiration of the longest preference period under any Bankruptcy Law applicable to the Company in respect of such deposit.
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
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SECTION 13.05.
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DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
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Subject to the provisions of the last paragraph of Section 10.03, all cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any Cash or U.S. Government Obligations held by it as provided in Section 12.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
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SECTION 13.06.
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REINSTATEMENT.
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If the Trustee or the Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with this Article with respect to any Securities 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, then the obligations under this Indenture and such Securities from which the Company has been discharged or released and the related Subsidiary Guarantees pursuant to Section 12.02 or 12.03 shall be revived and reinstated as though
no deposit had occurred pursuant to this Article with respect to such Securities and the related Subsidiary Guarantees, until such time as the Trustee or Paying Agent is permitted to apply all such Cash or U.S. Government Obligations held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the Cash or U.S. Government Obligations so held in trust by the Trustee or the Paying Agent.
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ARTICLE FOURTEEN
GUARANTEES
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SECTION 14.01.
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GUARANTEES.
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Subject to this Article Fourteen, to the extent provided for in any series of
Securities under this Indenture, each Guarantor hereby jointly and severally irrevocably and unconditionally Guarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the
full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of
principal of or interest on the Securities and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the
Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article Fourteen notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the
Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by
(a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such
Guarantor, except as provided in Section 14.03.
Each Guarantor hereby waives any right to which it may be entitled to have its
obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be
used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to
require that the Company be sued prior to an action being initiated against such Guarantor.
Each Guarantor further agrees that its
Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives
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any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
Except as expressly set forth in Sections 13.02, 14.02 and 14.03, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected
by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a
discharge of any Guarantor as a matter of law or equity.
Each Guarantor agrees that its Guarantee is a continuing Guarantee and shall
remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(a) the unpaid principal amount of such Guaranteed Obligations, (b) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (c) all other monetary obligations of the Company to the
Holders and the Trustee.
Each Guarantor agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand,
(a) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article Five for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Guaranteed Obligations guaranteed hereby, and (b) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article Five, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this Section 14.01.
Each Guarantor also agrees to pay any and
all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 14.01.
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Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
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SECTION 14.02.
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LIMITATION ON LIABILITY.
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Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby Guaranteed without rendering this Indenture, as it relates to such Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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SECTION 14.03.
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RELEASE OF SUBSIDIARY GUARANTEES.
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A Guarantee as to any Guarantor shall terminate and be of no
further force or effect and such Guarantor shall be deemed to be released from all obligations under this Article Fourteen
(1) at such time as such Guarantor ceases to have outstanding or Guarantee any Specified Indebtedness;
(2) upon the Company’s exercise of its Defeasance option or Covenant Defeasance option in accordance with Article Thirteen
or the Company’s obligations under this Indenture being discharged in accordance with the terms of this Indenture; or
(3) as specified in a supplemental indenture to this Indenture.
The Guarantor shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for in this Indenture relating to such release have been complied with.
At the written request of the Company, the Trustee shall
execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.
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SECTION 14.04.
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GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
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No Guarantor may sell or otherwise dispose
of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:
(1) immediately after giving effect to such transaction, no Default or Event of Default exists; and
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(2) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under this Indenture (including its Subsidiary Guarantee) pursuant to agreements reasonably satisfactory to the Trustee.
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SECTION 14.05.
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SUCCESSORS AND ASSIGNS.
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This Article Fourteen shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that
party in this Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
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SECTION 14.06.
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NO WAIVER.
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Neither a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article Fourteen shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and
benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article Fourteen at law, in equity, by statute or otherwise.
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SECTION 14.07.
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MODIFICATION.
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No modification, amendment or waiver of any provision of this Article Fourteen,
nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless in compliance with Article Nine of this Indenture, and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.
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SECTION 14.08.
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EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS.
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Each Subsidiary which is required
to become a Guarantor pursuant to Section 10.09 shall promptly execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary shall become a Guarantor under this Article Fourteen and shall guarantee the Guaranteed
Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Company shall deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to the effect that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws relating to creditors’ rights generally and to the
principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such
other matters as the Trustee may reasonably request.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Indenture as of the day
and year first above written.
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OWENS & MINOR, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Nancy H. Taylor
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Name:
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Nancy H. Taylor
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Title:
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Vice President
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GUARANTORS:
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OWENS & MINOR DISTRIBUTION, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and Chief Financial Officer
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OWENS & MINOR MEDICAL, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and Chief Financial Officer
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[Signature page – Indenture]
Exhibit 4.2
EXECUTION VERSION
OWENS &
MINOR, INC.,
as Issuer,
THE
GUARANTORS PARTY
HERETO
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
FIRST
SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 16, 2014
TO INDENTURE
DATED AS OF
SEPTEMBER 16, 2014
ESTABLISHING TWO SERIES OF SECURITIES DESIGNATED
3.875% SENIOR NOTES DUE 2021
4.375% SENIOR NOTES DUE 2024
TABLE OF CONTENTS
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Page
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ARTICLE ONE INTERPRETATIONS AND AMENDMENTS
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1
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SECTION 101.
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First Supplemental Indenture.
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1
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SECTION 102.
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Definitions in First Supplemental Indenture.
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2
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ARTICLE TWO THE NOTES
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2
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SECTION 201.
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2021 Notes.
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2
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SECTION 202.
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2024 Notes.
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2
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SECTION 203.
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Form of Notes; Incorporation of Terms.
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3
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SECTION 204.
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Place of Payment.
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3
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SECTION 205.
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Transfer and Exchange.
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3
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SECTION 206.
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Cancellation or Adjustment of Global Securities.
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5
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ARTICLE THREE OPTIONAL REDEMPTION OF NOTES
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5
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SECTION 301.
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Redemption of 2021 Notes.
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5
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SECTION 302.
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Redemption of 2024 Notes.
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5
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SECTION 303.
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Notice of Redemption.
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6
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SECTION 304.
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Certain Additional Definitions Relating to Redemption of Notes.
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6
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ARTICLE FOUR CHANGE OF CONTROL
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7
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SECTION 401.
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Repurchase Option Upon a Change of Control Triggering Event.
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7
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SECTION 402.
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Certain Additional Definitions Relating to Change of Control.
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8
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ARTICLE FIVE GUARANTEES
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10
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SECTION 501.
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Guarantees.
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ARTICLE SIX GENERAL
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10
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SECTION 601.
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Execution as Supplemental Indenture.
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10
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SECTION 602.
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Conflict with Trust Indenture Act.
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10
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SECTION 603.
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Effect of Headings.
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11
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SECTION 604.
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Execution and Counterparts.
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11
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SECTION 605.
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Governing Law.
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11
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EXHIBIT A
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EXHIBIT B
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of September 16, 2014, is among Owens &
Minor, Inc., a Virginia corporation (the “
Company
”), the guarantors signatory hereto (the “
Guarantors
”) and U.S. Bank National Association, as trustee (the “
Trustee
”).
WITNESSETH:
WHEREAS, the
Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture, dated as of September 16, 2013 (herein called the “
Base Indenture
” and, together with this First Supplemental Indenture, the
“
Indenture
”), to provide for the issuance from time to time of its unsecured notes, debentures or other evidences of indebtedness (herein called a “
Security
” or the “
Securities
”), the form and terms
of which are to be established as set forth in Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, Section 9.01 of the Base
Indenture provides, among other things, that the Company and the Trustee may enter into indentures supplemental to the Base Indenture to, among other things, establish the form and terms of the Securities of any series as permitted in Sections 2.01
and 3.01 of the Base Indenture;
WHEREAS, the Company desires to create two series of Securities, consisting of one series in an aggregate
principal amount of $275,000,000 to be designated the “3.875% Senior Notes due 2021” (herein called the “
2021 Notes
”) and one series in an aggregate principal amount of $275,000,000 to be designated the “4.375% Senior
Notes due 2024” (herein called the “
2024 Notes
” and, together with the 2021 Notes, the “
Notes
”), and all action on the part of the Company necessary to authorize the issuance of the Notes under the Base
Indenture and this First Supplemental Indenture has been duly taken;
WHEREAS, the Company desires to issue the Notes in accordance with
this First Supplemental Indenture and treat the Notes as two series of Securities for all purposes, as amended or supplemented from time to time in accordance with the terms of this First Supplemental Indenture and the Base Indenture; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and completed, authenticated and delivered by the
Trustee as provided in the Indenture, the valid and binding obligations of the Company and to constitute a valid and binding agreement according to its terms, have been done and performed.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and purchase of the Notes by the Holders thereof and of the acceptance of this
trust by the Trustee, the Company and the Guarantors covenant and agree with the Trustee, for the equal benefit of Holders of the 2021 Notes, and the equal benefit of Holders of the 2024 Notes, as applicable, as follows:
ARTICLE ONE
INTERPRETATIONS AND AMENDMENTS
SECTION 101.
First Supplemental Indenture
. As used herein “
First Supplemental Indenture
”, “
hereto
”,
“
herein
”, “
hereof
”, “
hereby
”, “
hereunder
” and similar expressions refer to
this First Supplemental Indenture and not to any particular Article, Section or other portion hereof and include any and every instrument supplemental or ancillary hereto or in implementation
hereof, and further include the terms of the Notes set forth in the forms of the 2021 Notes and the 2024 Notes attached hereto as
Exhibit A
and
Exhibit B
, respectively.
SECTION 102.
Definitions in First Supplemental Indenture
. All terms contained in this First Supplemental Indenture that are defined in
the Base Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such terms in the Base Indenture, unless the context otherwise specifies or requires;
provided
,
however
, that notwithstanding the
foregoing, the terms “
Company
” and “
Trustee
” shall have the respective meanings given to them in the Base Indenture.
ARTICLE TWO
THE NOTES
SECTION 201.
2021 Notes
. A series of Securities, which shall be designated the “3.875% Senior Notes due 2021,” shall
be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of, the Base Indenture and this First Supplemental Indenture (including the form of 2021
Notes attached hereto as
Exhibit A
). The aggregate principal amount of 2021 Notes that may be authenticated and delivered under this First Supplemental Indenture shall not, except as permitted by the provisions of the Base Indenture,
initially exceed $275,000,000. The Company may from time to time or at any time, without notice to, or the consent of, any Holder of the 2021 Notes, create and issue additional 2021 Notes having the same terms as the initial 2021 Notes (except the
public offering price, issuance date and, if applicable, the initial Interest Payment Date), which additional 2021 Notes shall increase the aggregate principal amount of the 2021 Notes and, together with all other 2021 Notes, will constitute a
single series under the Indenture and vote together as one class on all matters with respect to the 2021 Notes;
provided
,
however
, that any additional 2021 Notes that are not fungible with existing 2021 Notes for U.S. federal income
tax purposes will have a separate CUSIP number than the existing 2021 Notes.
SECTION 202.
2024 Notes
. A series of Securities,
which shall be designated the “4.375% Senior Notes due 2024,” shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of, the Base
Indenture and this First Supplemental Indenture (including the form of 2024 Notes attached hereto as
Exhibit B
). The aggregate principal amount of 2024 Notes that may be authenticated and delivered under this First Supplemental Indenture
shall not, except as permitted by the provisions of the Base Indenture, initially exceed $275,000,000. The Company may from time to time or at any time, without notice to, or the consent of, any Holder of the 2024 Notes, create and issue additional
2024 Notes having the same terms as the initial 2024 Notes (except the public offering price, issuance date and, if applicable, the initial Interest
2
Payment Date), which additional 2024 Notes shall increase the aggregate principal amount of the 2024 Notes and, together with all other 2024 Notes, will constitute a single series under the
Indenture and vote together as one class on all matters with respect to the 2024 Notes; provided, however, that any additional 2024 Notes that are not fungible with existing 2024 Notes for U.S. federal income tax purposes will have a separate CUSIP
number than the existing 2024 Notes.
SECTION 203.
Form of Notes; Incorporation of Terms
.
(a) The 2021 Notes and the 2024 Notes shall each be issued initially in the form of one or more Global Securities and, together with the
Trustee’s certificate of authentication thereon, shall be in substantially the form set forth in
Exhibit A
or
Exhibit B
attached hereto, respectively. The Notes may have such notations, legends or endorsements approved as to form
by the Company and required, as applicable, by law, stock exchange or depository rules and agreements to which the Company is subject. The terms of the 2021 Notes set forth in
Exhibit A
and the terms of the 2024 Notes set forth in
Exhibit
B
are herein incorporated by reference and are part of the terms of this First Supplemental Indenture. The Notes shall be issuable in definitive, fully registered form without coupons only in minimum denominations of $2,000 and any integral
multiples of $1,000 in excess thereof.
(b) The 2021 Notes and the 2024 Notes issued in global form shall be substantially in the form of
Exhibit A
and
Exhibit B
attached hereto, respectively (including the Global Security legend thereon). The 2021 Notes and the 2024 Notes issued in definitive certificated form in accordance with the terms of the Base Indenture and this
First Supplemental Indenture, if any, shall be substantially in the form of
Exhibit A
and
Exhibit B
, respectively, attached hereto (but without the Global Security legend thereon). Each Global Security shall represent such of the
Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding Notes
represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the aggregate principal amount of Outstanding Notes
represented thereby shall be made by the Trustee in accordance with Section 206 hereof pursuant to instructions given by the Holder thereof as required by Section 205 hereof.
SECTION 204.
Place of Payment
. The Place of Payment in respect of the Notes will be at the office or agency of the Company in The City
of New York, State of New York or at the office or agency of the Paying Agent.
SECTION 205.
Transfer and Exchange
.
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(a) The transfer and exchange of beneficial interests in the Global Securities shall be effected
through the Depositary, in accordance with the provisions of the Indenture and the then applicable procedures of the Depositary (the “
Applicable Procedures
”). In connection with all transfers and exchanges of beneficial interests,
the transferor of such beneficial interest must deliver to the Trustee either (A)(1) a written order from a Participant (as defined below) or an Indirect Participant (as defined below) given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the Participant account to be credited with such increase or, if Definitive Securities are at such time permitted to be issued pursuant to the Indenture, (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Security in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Security Registrar containing information regarding the Person in whose name such Definitive Security shall be registered to effect the transfer or exchange referred to in
(1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Securities contained in the Indenture and the Notes or otherwise applicable under the Securities Act, the Security Registrar
shall adjust the principal amount of the relevant Global Securities pursuant to Section 206 hereof. “
Participant
” means, with respect to the Depositary, a Person who has an account with the Depositary. “
Indirect
Participant
” means a Person who holds a beneficial interest in a Global Security through a Participant.
(b) Upon request by a
Holder of Definitive Securities and such Holder’s compliance with the provisions of this Section 205(b), the Security Registrar shall register the transfer or exchange of Definitive Securities. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Trustee the Definitive Securities duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Security Registrar duly executed by such Holder or by
its attorney, duly authorized in writing. The Trustee shall cancel any such Definitive Securities so surrendered, and the Company shall execute and, upon receipt of a Company Order pursuant to Section 3.03 of the Base Indenture, the Trustee
shall authenticate and deliver to the Person designated in the instructions a new Definitive Security in the appropriate principal amount. Any Definitive Security issued pursuant to this Section 205(b) shall be registered in such name or names
and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such
Definitive Securities to the Persons in whose names such Definitive Securities are so registered. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to
Section 3.05 of the Base Indenture.
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SECTION 206.
Cancellation or Adjustment of Global Securities
. At such time as all
beneficial interests in a particular Global Security have been exchanged for Definitive Securities or a particular Global Security has been redeemed, repurchased or cancelled in whole and not in part, each such Global Security shall be returned to
or retained and cancelled by the Trustee in accordance with Section 3.09 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest for Definitive Securities, the principal amount of Notes represented by such Global Security shall be reduced accordingly and an endorsement shall be made on such Global Security by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security by the Security Registrar or by the Depositary at the direction of the Security Registrar to reflect such increase.
ARTICLE THREE
OPTIONAL
REDEMPTION OF NOTES
SECTION 301.
Redemption of 2021 Notes
. The Company may redeem the 2021 Notes in whole or in part, at its
option at any time, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of such 2021 Notes to
be redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon
(exclusive of interest accrued to the applicable Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points;
plus, in each case, accrued and unpaid interest thereon to, but excluding, the applicable Redemption Date.
SECTION 302.
Redemption of 2024 Notes
.
(a) Prior to September 15, 2024, the Company may redeem the 2024 Notes in whole or in part, at its option at any time, at a Redemption
Price equal to the greater of:
(i) 100% of the principal amount of such 2024 Notes to be redeemed; and
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(ii) the sum of the present values of the remaining scheduled payments or
principal and interest thereon (exclusive of interest accrued to the applicable Redemption Date) discounted to the applicable Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 30 basis points;
plus, in each case, accrued and unpaid interest thereon to, but excluding, the applicable Redemption Date.
(b) On and after September 15, 2024, the Company may redeem the 2024 Notes in whole or in part, at its option at any time, at a
Redemption Price equal to 100% of the principal amount of the 2024 Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the applicable Redemption Date.
SECTION 303.
Notice of Redemption
. Notice of any redemption pursuant to this Article Three shall be given as provided in
Section 11.04 of the Base Indenture, except that any notice of such redemption shall not specify the related Redemption Price but only the manner of calculation thereof. The Trustee shall not be responsible for the calculation of such Optional
Redemption Price. The Company shall calculate such Optional Redemption Price and promptly notify the Trustee thereof.
SECTION 304.
Certain Additional Definitions Relating to Redemption of Notes
. For the purposes of this First Supplemental Indenture, the following expressions shall have the following meanings:
“
Comparable Treasury Issue
” means the United States Treasury security or securities selected by an Independent Investment
Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with
respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
”
means one of the Reference Treasury Dealers appointed by the trustee after consultation with the Company.
“
Reference Treasury
Dealer
” means each of (1) J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and a Primary Treasury Dealer (as defined herein) selected by Wells Fargo Securities, LLC or their respective affiliates
which are primary U.S.
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Government securities dealers in the United States (a “
Primary Treasury Dealer
”), and their respective successors and (2) one other Primary Treasury Dealer;
provided
,
however
, that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the trustee by such Reference Treasury Dealer at 3:30 p.m. New
York time on the third business day preceding such Redemption Date.
“
Treasury Rate
” means, with respect to any
Redemption Date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Redemption Date.
ARTICLE FOUR
CHANGE OF CONTROL
SECTION
401.
Repurchase Option Upon a Change of Control Triggering Event
. With respect to each of the 2021 Notes and the 2044 Notes:
(a)
Upon the occurrence of a Change of Control Triggering Event with respect to a series of Notes, unless the Company has previously exercised its right to redeem such Notes pursuant to Section 301 or Section 302 hereof, as applicable, by
causing a notice of redemption to be delivered to the Holders of such Notes, the Company shall make an offer to each Holder of the applicable series of Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of each Holder’s Notes of such series (a “
Change of Control Offer
”) on the terms set forth herein at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and
unpaid interest, if any, on the Notes repurchased, to, but excluding, the date of purchase (the “
Change of Control Payment
”).
(b) Within 30 days following any Change of Control Triggering Event with respect to a series of Notes, the Company shall mail a notice to
Holders of the Notes of such series describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30
days and no later than 60 days from the date such notice is mailed (the “
Change of Control Payment Date
”), pursuant to the procedures required by the Indenture and the Notes of the applicable series and described in such notice.
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(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any
securities laws or regulations conflict with this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of such
conflict.
(d) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all Notes or
portions of Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered and (3) deliver
or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. The Paying Agent shall promptly mail
to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in the principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third Person (1) makes
the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 401 applicable to a Change of Control Offer made by the Company and (2) purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer.
SECTION 402.
Certain Additional Definitions Relating to Change of
Control
. For the purposes of this First Supplemental Indenture, the following expressions shall have the following meanings:
“
Below Investment Grade Rating Event
” means with respect to a series of Notes, the Notes of such series are rated below an
Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the
Change of Control (which 60-day period shall be extended so long as the rating of the Notes of such series is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
“
Change of Control
” means the occurrence of any of the following:
8
(1) the direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) other than the Company or one of our Subsidiaries;
(2) the adoption of a plan
relating to the liquidation or dissolution of the Company (other than in a transaction that complies with Section 8.01 of the Base Indenture);
(3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) directly or indirectly, of more than 50% of the
Company’s Voting Stock, measured by voting power rather than number of shares;
(4) the first day on which a majority
of the members of the Board of Directors of the Company are not Continuing Directors; or
(5) the Company consolidates
with, or merges with or into, any person (as that term is used in Section 13(d)(3) of the Exchange Act), or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Company outstanding immediately prior to
such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction.
“
Change of Control Triggering Event
” means the occurrence of both a Change of Control and a Below Investment Grade Rating
Event.
“
Continuing Director
” means, as of any date of determination, any member of the Board of Directors of the Company
who:
(1) was a member of such Board of Directors on September 16, 2014; or
(2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time of such nomination or election (either by specific vote or by approval of the Company’s proxy statement in which such member was named a nominee for election as a director,
without objection to such nomination).
9
“
Fitch
” means Fitch Ratings, Inc., a subsidiary of Hearst Corporation and
Fimalac S.A., and its successors.
“
Investment Grade Rating
” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P and by Fitch.
“
Moody’s
” means Moody’s
Investors Services, Inc., a subsidiary of Moody’s Corporation, and its successors.
“
Rating Agency
” means each of
S&P, Moody’s and Fitch, or if S&P, Moody’s or Fitch or all three shall not make a rating on the Notes of a given series publicly available, a “nationally recognized statistical rating organization” (within the meaning of
Section 3(a)(62) of the Exchange Act) selected by us (as certified by a resolution of our Board of Directors) which shall be substituted for S&P, Moody’s or Fitch, or all three, as the case may be.
“
S&P
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its
successors.
“
Voting Stock
” of any specified Person as of any date means the Capital Stock of such Person that is at the
time entitled to vote generally in the election of the board of directors of such Person.
ARTICLE FIVE
GUARANTEES
SECTION 501.
Guarantees
. The provisions of Section 10.09 of the Base Indenture and Article Fourteen of the Base Indenture shall apply to the 2021 Notes and the 2024 Notes. The Guarantors hereto hereby agree to perform all of the obligations and
agreements of a Guarantor as defined in the Base Indenture.
ARTICLE SIX
GENERAL
SECTION 601.
Execution as Supplemental Indenture
. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture and, as provided in the Base Indenture, this First Supplemental Indenture forms a
part thereof.
SECTION 602.
Conflict with Trust Indenture Act
. If any provision hereof limits, qualifies or conflicts with another
provision hereof, or with a provision of the Base Indenture, or with a provision of the Trust Indenture Act, which is required to be included in this First Supplemental Indenture, or in the Base Indenture, respectively, by any of the provisions of
the Trust Indenture Act, such required provision shall control to the extent it is applicable. If any
10
provision hereof modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this First Supplemental
Indenture as so modified or to be excluded, as the case may be.
SECTION 603.
Effect of Headings
. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 604.
Execution and Counterparts
. This First
Supplemental Indenture may be executed in any number of counterparts (which may be delivered by means of facsimile or e-mail), each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same
instrument.
SECTION 605.
Governing Law
. This First Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature Page to Follow]
11
IN WITNESS WHEREOF, the parties hereto have executed and delivered this First Supplemental
Indenture as of the day and year first above written.
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OWENS & MINOR, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and
Chief Financial
Officer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Nancy H. Taylor
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Name:
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Nancy H. Taylor
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Title:
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Vice President
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GUARANTORS:
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OWENS & MINOR DISTRIBUTION, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and
Chief Financial
Officer
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OWENS & MINOR MEDICAL, INC.
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By:
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/s/ Richard A. Meier
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Name:
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Richard A. Meier
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Title:
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Executive Vice President and
Chief Financial
Officer
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[Signature Page —
First Supplemental Indenture]
EXHIBIT A
[Form of 2021 Note]
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED OR TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
OWENS & MINOR, INC.
3.875% SENIOR NOTES DUE 2021
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No. 1
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$275,000,000
as revised by the Schedule of Increases and Decreases in Global Security attached hereto
CUSIP NO. 690732AD4
ISIN NO. US690732AD40
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Owens & Minor, Inc., a corporation duly organized and existing under the laws of the Commonwealth of
Virginia (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS ($275,000,000), as revised by the Schedule of Increases and Decreases in Global Security attached hereto, on September 15, 2021, and to pay interest thereon from September 16, 2014 or from the most
recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 15 and September 15 in each year, commencing March 15, 2015, at the rate of 3.875% per annum, until the principal hereof is
paid or made available for payment. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for (except
A-1
for Defaulted Interest), on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date even if Securities are
cancelled, repurchased or redeemed after the Regular Record Date and on or before the Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained
for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case of any payment due at
the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date); provided, however, that at the option of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in the Security Register. Payments in respect of Securities represented by a Global Security (including principal, premium, if any, and interest) will be made by the transfer
of immediately available funds to the accounts specified by DTC or any successor depository.
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Dated:
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OWENS & MINOR, INC.
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By:
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Name:
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Title:
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[Global Note 2021]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
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U.S. Bank National Association,
As
Trustee
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By:
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Authorized Signatory
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[2021 Global Note]
REVERSE OF 3.875% SENIOR NOTE DUE 2021
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of September 16, 2014 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 16, 2014 (the “First Supplemental
Indenture” and together with the Base Indenture, the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Company, the Guarantors and U.S. Bank National Association, as Trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the
face hereof, initially limited in aggregate principal amount to $275,000,000.
The Securities of this series are subject to redemption
prior to the Stated Maturity upon not less than 30 nor more than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company, at a Redemption Price equal to the greater of: (i) 100% of the principal amount
of the Securities to be redeemed, or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the applicable Redemption Date) discounted to the applicable
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, plus, in each case, accrued and unpaid interest thereon to, but excluding, the applicable Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In the event of a Change of
Control Triggering Event, unless the Company has exercised its right to redeem the Securities, the Company shall make an offer to each Holder to repurchase all or any part of each Holder’s Securities at a purchase price in cash equal to 101% of
the aggregate principal amount of Securities repurchased, plus accrued and unpaid interest, if any, on the Securities repurchased, to, but excluding the date of purchase.
This Security will not be subject to any sinking fund.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an
Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification or waiver of the rights and
obligations of the Company
A-5
and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of more than 50% in
aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of more than 50% in aggregate principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance with certain provisions of the Indenture and certain past Defaults (other than with respect to nonpayment or in respect of a provision that cannot be
amended without the written consent of each Holder affected) under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee satisfactory indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are
A-6
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-7
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY
The initial outstanding principal amount of this Global Security is TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS ($275,000,000). The following
exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
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Date of Exchange
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Amount of decrease in
Principal Amount of this
Global Security
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Amount of increase in
Principal Amount of this
Global Security
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Principal Amount of this
Global Security following
such decrease or
increase
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Signature of authorized
signatory of Trustee,
Depositary or
Custodian
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A-8
EXHIBIT B
[Form of 2024 Note]
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED OR TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
OWENS & MINOR, INC.
4.375% SENIOR NOTES DUE 2024
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No. 1
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$275,000,000
as revised by the Schedule of Increases and
Decreases in
Global Security attached
hereto
CUSIP NO. 690732AE2
ISIN NO. US690732AE23
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Owens & Minor, Inc., a corporation duly organized and existing under the laws of the Commonwealth of
Virginia (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS ($275,000,000), as revised by the Schedule of Increases and Decreases in Global Security attached hereto, on December 15, 2024, and to pay interest thereon from September 16, 2014 or from the most
recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 15 and December 15 in each year, commencing December 15, 2014, at the rate of 4.375 % per annum, until the principal hereof
is paid or made available for payment. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for (except
B-1
for Defaulted Interest), on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which shall be the June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date even if Securities are cancelled,
repurchased or redeemed after the Regular Record Date and on or before the Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained
for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case of any payment due at
the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date); provided, however, that at the option of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in the Security Register. Payments in respect of Securities represented by a Global Security (including principal, premium, if any, and interest) will be made by the transfer
of immediately available funds to the accounts specified by DTC or any successor depository.
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Dated:
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OWENS & MINOR, INC.
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By:
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Name:
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Title:
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[Global Note 2024]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
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U.S. Bank National Association,
As
Trustee
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By:
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Authorized Signatory
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[2024 Global Note]
REVERSE OF 4.375% SENIOR NOTE DUE 2024
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of September 16, 2014 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 16, 2014 (the “First Supplemental
Indenture” and together with the Base Indenture, the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Company, the Guarantors and U.S. Bank National Association, as Trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the
face hereof, initially limited in aggregate principal amount to $275,000,000.
The Securities of this series are subject to redemption
prior to the Stated Maturity upon not less than 30 nor more than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company. Prior to September 15, 2024, the Securities of this series shall be redeemable at
a Redemption Price equal to the greater of: (i) 100% of the principal amount of the Securities to be redeemed, or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of
interest accrued to the applicable Redemption Date) discounted to the applicable Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus, in each case,
accrued and unpaid interest thereon to, but excluding, the applicable Redemption Date. On and after September 15, 2024, the Securities of this series shall be redeemable at a Redemption Price equal to 100% of the principal amount of the
Securities to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In the event of a Change of Control Triggering Event, unless the Company has exercised its right to redeem the Securities, the Company shall
make an offer to each Holder to repurchase all or any part of each Holder’s Securities at a purchase price in cash equal to 101% of the aggregate principal amount of Securities repurchased, plus accrued and unpaid interest, if any, on the
Securities repurchased, to, but excluding the date of purchase.
This Security will not be subject to any sinking fund.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
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If an Event of Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification or waiver of the rights and
obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of more than 50% in aggregate principal amount of
the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of more than 50% in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance with certain provisions of the Indenture and certain past Defaults (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written
consent of each Holder affected) under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee satisfactory indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized
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denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY
The initial outstanding principal amount of this Global Security is TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS ($275,000,000). The following
exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
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Date of Exchange
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Amount of decrease in
Principal Amount of this
Global Security
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Amount of increase in
Principal Amount of this
Global Security
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Principal Amount of this
Global Security following
such decrease or
increase
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Signature of authorized
signatory of Trustee,
Depositary or
Custodian
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