EXHIBIT 4.1
DADE INTERNATIONAL INC.,
as Issuer
and
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
____________________
INDENTURE
Dated as of May 7, 1996
____________________
$350,000,000
11 1/8 % Senior Subordinated Notes due 2006
and
Series B 11 1/8 % Senior Subordinated Notes due 2006
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1)........................................... 7.10
(a)(2)........................................... 7.10
(a)(3)........................................... N.A.
(a)(4)........................................... N.A.
(a)(5)........................................... 7.08; 7.10
(b).............................................. 7.08; 7.10;
11.02
(c).............................................. N.A.
311(a).............................................. 7.11
(b).............................................. 7.11
(c).............................................. N.A.
312(a).............................................. 2.05
(b).............................................. 11.03
(c).............................................. 11.03
313(a).............................................. 7.06
(b)(1)........................................... N.A.
(b)(2)........................................... 7.06
(c).............................................. 7.06; 11.02
(d).............................................. 7.06
314(a).............................................. 4.07; 4.08;
11.02
(b).............................................. N.A.
(c)(1)........................................... 11.04
(c)(2)........................................... 11.04
(c)(3)........................................... N.A.
(d).............................................. N.A.
(e).............................................. 11.05
(f).............................................. N.A.
315(a).............................................. 7.01(b)
(b).............................................. 7.05; 11.02
(c).............................................. 7.01(a)
(d).............................................. 7.01(c)
(e).............................................. 6.11
316(a)(last sentence)............................... 2.09
(a)(1)(A)........................................ 6.05
(a)(1)(B)........................................ 6.04
(a)(2)........................................... N.A.
(b).............................................. 6.07
(c).............................................. 9.05
317(a)(1)........................................... 6.08
(a)(2)........................................... 6.09
(b).............................................. 2.04
318(a).............................................. 11.01
(c).............................................. 11.01
______________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions........................................ 1
Section 1.02 Incorporation by Reference of TIA.................. 32
Section 1.03 Rules of Construction.............................. 33
ARTICLE TWO
THE NOTES
Section 2.01 Form and Dating.................................... 33
Section 2.02 Execution and Authentication;
Aggregate Principal Amount....................... 34
Section 2.03 Registrar and Paying Agent......................... 36
Section 2.04 Paying Agent To Hold Assets in
Trust............................................ 36
Section 2.05 Noteholder Lists................................... 37
Section 2.06 Transfer and Exchange.............................. 37
Section 2.07 Replacement Notes.................................. 38
Section 2.08 Outstanding Notes.................................. 38
Section 2.09 Treasury Notes..................................... 39
Section 2.10 Temporary Notes.................................... 39
Section 2.11 Cancellation....................................... 39
Section 2.12 Defaulted Interest................................. 40
Section 2.13 CUSIP Number....................................... 40
Section 2.14 Deposit of Moneys.................................. 40
Section 2.15 Restrictive Legends................................ 41
Section 2.16 Book-Entry Provisions for Global
Security......................................... 43
Section 2.17 Special Transfer Provisions........................ 44
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee................................. 47
Section 3.02 Selection of Notes To Be Redeemed.................. 47
Section 3.03 Notice of Redemption............................... 47
Section 3.04 Effect of Notice of Redemption..................... 48
Section 3.05 Deposit of Redemption Price........................ 49
Section 3.06 Notes Redeemed in Part............................. 49
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Notes................................... 49
Section 4.02 Maintenance of Office or Agency.................... 50
Section 4.03 Corporate Existence................................ 50
Section 4.04 Payment of Taxes and Other Claims.................. 51
Section 4.05 Maintenance of Properties and
Insurance........................................ 51
Section 4.06 Compliance Certificate; Notice of
Default.......................................... 52
Section 4.07 Compliance with Laws............................... 53
Section 4.08 SEC Reports........................................ 53
Section 4.09 Waiver of Stay, Extension or Usury
Laws............................................. 54
Section 4.10 Limitation on Restricted Payments.................. 54
Section 4.11 Limitation on Transactions with
Affiliates....................................... 57
Section 4.12 Limitation on Incurrence of
Additional Indebtedness.......................... 59
Section 4.13 Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries..................................... 60
Section 4.14 Prohibition on Incurrence of Senior
Subordinated Debt................................ 61
Section 4.15 Change of Control.................................. 61
Section 4.16 Limitation on Asset Sales.......................... 63
Section 4.17 Limitation on Preferred Stock of
Subsidiaries..................................... 68
Section 4.18 Limitation on Liens................................ 69
Section 4.19 Limitation of Guarantees by
Subsidiaries..................................... 69
Section 4.20 Conduct of Business................................ 70
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Merger, Consolidation and Sale of
Assets........................................... 71
Section 5.02 Successor Corporation Substituted.................. 72
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default.................................. 72
Section 6.02 Acceleration....................................... 74
Section 6.03 Other Remedies..................................... 75
Section 6.04 Waiver of Past Defaults............................ 75
Section 6.05 Control by Majority................................ 76
Section 6.06 Limitation on Suits................................ 76
Section 6.07 Rights of Holders To Receive
Payment.......................................... 77
Section 6.08 Collection Suit by Trustee......................... 77
Section 6.09 Trustee May File Proofs of Claim................... 77
Section 6.10 Priorities......................................... 78
Section 6.11 Undertaking for Costs.............................. 78
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee.................................. 79
Section 7.02 Rights of Trustee.................................. 80
Section 7.03 Individual Rights of Trustee....................... 81
Section 7.04 Trustee's Disclaimer............................... 82
Section 7.05 Notice of Default.................................. 82
Section 7.06 Reports by Trustee to Holders...................... 82
Section 7.07 Compensation and Indemnity......................... 83
Section 7.08 Replacement of Trustee............................. 84
Section 7.09 Successor Trustee by Merger, Etc................... 85
Section 7.10 Eligibility; Disqualification...................... 85
Section 7.11 Preferential Collection of Claims
Against Company.................................. 86
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's
Obligations...................................... 86
Section 8.02 Legal Defeasance and Covenant
Defeasance....................................... 88
Section 8.03 Conditions to Legal Defeasance or
Covenant Defeasance.............................. 89
Section 8.04 Application of Trust Money......................... 91
Section 8.05 Repayment to the Company........................... 92
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Section 8.06 Reinstatement...................................... 92
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders......................... 93
Section 9.02 With Consent of Holders............................ 94
Section 9.03 Effect on Senior Debt.............................. 95
Section 9.04 Compliance with TIA................................ 95
Section 9.05 Revocation and Effect of Consents.................. 95
Section 9.06 Notation on or Exchange of Notes................... 96
Section 9.07 Trustee To Sign Amendments, Etc.................... 97
ARTICLE TEN
SUBORDINATION
Section 10.01 Notes Subordinated to Senior Debt.................. 97
Section 10.02 No Payment on Notes in Certain
Circumstances.................................... 97
Section 10.03 Payment Over of Proceeds upon
Dissolution, Etc................................. 99
Section 10.04 Payments May Be Paid Prior to
Dissolution...................................... 101
Section 10.05 Subrogation........................................ 101
Section 10.06 Obligations of the Company
Unconditional.................................... 102
Section 10.07 Notice to Trustee.................................. 102
Section 10.08 Reliance on Judicial Order or
Certificate of Liquidating Agent................. 103
Section 10.09 Trustee's Relation to Senior Debt.................. 103
Section 10.10 Subordination Rights Not Impaired
by Acts or Omissions of the
Company or Holders of Senior Debt................ 104
Section 10.11 Noteholders Authorize Trustee To
Effectuate Subordination of Notes................ 104
Section 10.12 This Article Ten Not To Prevent
Events of Default................................ 105
Section 10.13 Trustee's Compensation Not
Prejudiced....................................... 105
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls....................................... 105
Section 11.02 Notices............................................ 106
Section 11.03 Communications by Holders with
Other Holders.................................... 107
Section 11.04 Certificate and Opinion as to
Conditions Precedent............................. 107
Section 11.05 Statements Required in Certificate
or Opinion....................................... 107
Section 11.06 Rules by Trustee, Paying Agent,
Registrar........................................ 108
Section 11.07 Legal Holidays..................................... 108
Section 11.08 Governing Law...................................... 108
Section 11.09 No Adverse Interpretation of Other
Agreements....................................... 108
Section 11.10 No Recourse Against Others......................... 109
Section 11.11 Successors......................................... 109
Section 11.12 Duplicate Originals................................ 109
Section 11.13 Severability....................................... 109
Signatures........................................................... 110
Exhibit A - Form of Initial Note.................................... A-1
Exhibit B - Form of Exchange Note................................... B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors............................... C-1
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S....................................... D-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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INDENTURE, dated as of May 7, 1996, between Dade
International Inc., a Delaware corporation (the "Company"), and
IBJ Schroder Bank & Trust Company, a New York banking
corporation, as Trustee (the "Trustee").
The Company has duly authorized the creation of an
issue of 11 1/8 % Senior Subordinated Notes due 2006 (the
"Initial Notes") and Series B 11 1/8 % Senior Subordinated
Notes due 2006 (the "Exchange Notes," and together with the
Initial Notes, the "Notes") and, to provide therefor, the
Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make the Notes, when duly
issued and executed by the Company, and authenticated and
delivered hereunder, the valid obligations of the Company, and
to make this Indenture a valid and binding agreement of the
Company, have been done.
Each party hereto agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the
Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
-----------
"Acceleration Notice" has the meaning provided in
-------------------
Section 6.02(a).
"Acquired Indebtedness" means Indebtedness of a
---------------------
Person or any of its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary of the Company or
assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition.
"Acquisition" means the acquisition by the Company of
-----------
the in vitro diagnostics business of DuPont and certain of its
-- -----
Affiliates pursuant to an Asset Sale and Purchase Agreement
between Dade Chemistry Systems Inc. and DuPont dated December
11, 1995 as amended and restated on May 7, 1996.
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"Affiliate" means a Person who directly or indirectly
---------
through one or more intermediaries controls, or is controlled
by, or is under common control with, the Company. The term
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the
foregoing, (i) no Person (other than the Company or any
Subsidiary of the Company) in whom a Securitization Entity
makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate
of the Company or any of its Subsidiaries solely by reason of
such Investment and (ii) none of Baxter International Inc. or
its Subsidiaries shall be deemed to be an Affiliate of the
Company.
"Affiliate Transaction" has the meaning provided in
---------------------
Section 4.11.
"Agent" means any Registrar, Paying Agent or co-
-----
Registrar.
"Agent Members" has the meaning provided in
-------------
Section 2.16.
"all or substantially all" shall have the meaning
------------------------
given such phrase in the Revised Model Business Corporation
Act.
"Asset Acquisition" means (a) an Investment by the
-----------------
Company or any Restricted Subsidiary of the Company in any
other Person if, as a result of such Investment, such Person
shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with
or into the Company or any Restricted Subsidiary of the
Company, or (b) the acquisition by the Company or any
Restricted Subsidiary of the Company of the assets of any
Person which constitute all or substantially all of the assets
of such Person, any division or line of business of such Person
or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale,
----------
issuance, conveyance, transfer, lease (other than operating
leases entered into in the ordinary course of business),
assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly
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Owned Restricted Subsidiary of the Company of (a) any Capital
Stock of any Restricted Subsidiary of the Company or (b) any
other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sales shall not include
(i) a transaction or series of related transactions for which
the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $1.0 million, (ii) the sale, lease,
conveyance, disposition or other transfer of all or
substantially all of the assets of the Company as permitted
under Section 5.01 or any disposition that constitutes a Change
of Control, (iii) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course
of business, but only in connection with the compromise or
collection thereof, (iv) the factoring of accounts receivable
arising in the ordinary course of business pursuant to
arrangements customary in the region, (v) the licensing of
intellectual property, (vi) disposals or replacements of
obsolete equipment in the ordinary course of business, (vii)
the sale, lease, conveyance, disposition or other transfer by
the Company or any Restricted Subsidiary of assets or property
to one or more Wholly Owned Restricted Subsidiaries in
connection with Investments permitted under Section 4.10,
(viii) sales of accounts receivable, equipment and related
assets (including contract rights) of the type specified in the
definition of "Qualified Securitization Transaction" to a
Securitization Entity for the fair market value thereof,
including cash in an amount at least equal to 75% of the fair
market value thereof as determined in accordance with GAAP, and
(ix) transfers of accounts receivable, equipment and related
assets (including contract rights) of the type specified in the
definition of "Qualified Securitization Transaction" (or a
fractional undivided interest therein) by a Securitization
Entity in a Qualified Securitization Transaction. For the
purposes of clause (viii), Purchase Money Notes shall be deemed
to be cash.
"Authenticating Agent" has the meaning provided in
--------------------
Section 2.02.
"Bain Capital" means Bain Capital, Inc.
------------
"Bain Related Party" means Bain Capital and any
------------------
Affiliate of Bain Capital.
"Bank Credit Agreement" means the Credit Agreement
---------------------
dated as of the Issue Date, among the Company, Holdings, the
lenders party thereto in their capacities as lenders thereunder
-4-
and Bankers Trust Company, as agent, together with the related
documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such
agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity
of, refinancing, replacing or otherwise restructuring
(including, without limitation, increasing the amount of
available borrowings thereunder or adding Subsidiaries of the
Company as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Bankruptcy Law" means Title 11, U.S. Code or any
--------------
similar Federal, state or foreign law for the relief of
debtors.
"Blockage Period" has the meaning provided in
---------------
Section 10.02.
"Board of Directors" means, as to any Person, the
------------------
board of directors of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person,
----------------
a duly adopted resolution of the Board of Directors or other
equivalent governing body of such Person.
"Business Day" means a day that is not a Legal
------------
Holiday.
"Capitalized Lease Obligation" means, as to any
----------------------------
Person, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease
obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the
capitalized amount of such obligations at such date, determined
in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person
-------------
that is a corporation, any and all shares, interests,
participations or other equivalents (however designated) of
corporate stock, including each class of common stock and
preferred stock of such Person and (ii) with respect to any
Person that is not a corporation, any and all partnership or
other equity interests of such Person.
-5-
"Cash Equivalents" means (i) marketable direct
----------------
obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state
of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's; (iii) commercial paper
maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances (or, with
respect to foreign banks, similar instruments) maturing within
one year from the date of acquisition thereof issued by any
bank organized under the laws of the United States of America
or any state thereof or the District of Columbia, Japan or any
member of the European Economic Community or any U.S. branch of
a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $200.0 million;
provided that instruments issued by banks not having one of the
two highest ratings obtainable from either S&P or Moody's or by
banks organized under the laws of Japan or any member of the
European Economic Community shall not constitute "Cash
Equivalents" for purposes of the subordination provisions of
this Indenture; (v) repurchase obligations with a term of not
more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds which invest
substantially all their assets in securities of the types
described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or
-----------------
more of the following events: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company or Holdings to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise
in compliance with the provisions of this Indenture); (ii) the
approval by the holders of Capital Stock of the Company of any
plan or proposal for the liquidation or dissolution of the
Company (whether or not otherwise in compliance with the
provisions of this Indenture); (iii) any Person or Group (other
than
-6-
one or both of the Principals or their respective Related
Parties) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 50%
of the aggregate ordinary voting power represented by the
issued and outstanding Capital Stock of the Company or
Holdings; or (iv) the first day within any two-year period on
which a majority of the members of the Board of Directors of
the Company or Holdings are not Continuing Directors.
"Change of Control Date" has the meaning provided in
----------------------
Section 4.15.
"Change of Control Offer" has the meaning provided in
-----------------------
Section 4.15.
"Change of Control Payment Date" has the meaning
------------------------------
provided in Section 4.15.
"Company" means the party named as such in this
-------
Indenture until a successor replaces it pursuant to this
Indenture and thereafter means such successor.
"Consolidated EBITDA" means, with respect to any
-------------------
Person, for any period, the sum (without duplication) of (i)
Consolidated Net Income and (ii) to the extent Consolidated Net
Income has been reduced thereby, (A) all income taxes and
foreign withholding taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such
period, (B) Consolidated Interest Expense and (C) Consolidated
Non-cash Charges.
"Consolidated Fixed Charge Coverage Ratio" means,
----------------------------------------
with respect to any Person, the ratio of Consolidated EBITDA of
such Person during the four full fiscal quarters (the "Four
Quarter Period") ending on or prior to the date of the
transaction giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the
Four Quarter Period. In addition to and without limitation of
the foregoing, for purposes of this definition, "Consolidated
EBITDA" and "Consolidated Fixed Charges" shall be calculated
after giving effect on a pro forma basis for the period of such
--- -----
calculation to (i) the incurrence of any Indebtedness or the
issuance of any Designated Preferred Stock of such Person or
any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other
Indebtedness or the
-7-
issuance or redemption of other Designated
Preferred Stock (and the application of the proceeds thereof)
occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence,
repayment, issuance or redemption, as the case may be (and the
application of the proceeds thereof), occurred on the first day
of the Four Quarter Period and (ii) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as
a result of such Person or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also
including any Consolidated EBITDA (including any pro forma
--- -----
expense and cost reductions calculated on a basis consistent
with Regulation S-X under the Securities Act as in effect and
applied as of December 31, 1995) attributable to the assets
which are the subject of the Asset Acquisition or Asset Sale
during the Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as
if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness
or Acquired Indebtedness) occurred on the first day of the Four
Quarter Period. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of
a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or
any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness. Furthermore,
in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (1) interest on
outstanding Indebtedness determined on a fluctuating basis as
of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest
on any Indebtedness actually incurred on the Transaction Date
may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect
on the Transaction Date will be deemed to have been in effect
during the Four Quarter Period; and (3) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating
basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be
-8-
deemed to accrue at the rate per annum resulting after giving
effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to
--------------------------
any Person for any period, the sum, without duplication, of
(i) Consolidated Interest Expense (before amortization or
write-off of debt issuance costs) plus (ii) the amount of all
cash dividend payments on any series of Preferred Stock of such
Person plus (iii) the amount of all dividend payments on any
series of Permitted Foreign Subsidiary Preferred Stock or
Permitted Domestic Subsidiary Preferred Stock; provided that
--------
with respect to any series of Designated Preferred Stock that
was not paid cash dividends during such period but that is
eligible to be paid cash dividends during any period prior to
the maturity date of the Notes, cash dividends shall be deemed
to have been paid with respect to such series of Designated
Preferred Stock during such period for purposes of clause (ii)
of this definition.
"Consolidated Interest Expense" means, with respect
-----------------------------
to any Person for any period, the sum of, without duplication,
(i) the aggregate of all cash and non-cash interest expense
with respect to all outstanding Indebtedness of such Person and
its Restricted Subsidiaries, including the net costs associated
with Interest Swap Obligations, for such period determined on a
consolidated basis in conformity with GAAP, and (ii) the
interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the Company means, for
-----------------------
any period, the aggregate net income (or loss) of the Company
and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (a) gains and
- --------
losses from Asset Sales (without regard to the $1.0 million
limitation set forth in the definition thereof) or abandonments
or reserves relating thereto and the related tax effects
according to GAAP, (b) gains and losses due solely to
fluctuations in currency values and the related tax effects
according to GAAP, (c) items classified as extraordinary,
unusual or nonrecurring gains and losses (including, without
limitation, restructuring costs), and the related tax effects
according to GAAP, (d) the net income (or loss) of any Person
acquired in a pooling of interests transaction accrued prior to
the date it becomes a Restricted Subsidiary of the Company or
is merged or
-9-
consolidated with the Company or any Restricted
Subsidiary of the Company, (e) the net income of any Restricted
Subsidiary of the Company to the extent that the declaration of
dividends or similar distributions by that Restricted
Subsidiary of the Company of that income is restricted by
contract, operation of law or otherwise, (f) the net loss of
any Person, other than a Restricted Subsidiary of the Company,
(g) the net income of any Person, other than a Restricted
Subsidiary of the Company, except to the extent of cash
dividends or distributions paid to the Company or a Restricted
Subsidiary of the Company by such Person, (h) only for purposes
of clause (iii)(w) of the first paragraph of Section 4.10, any
amounts included pursuant to clause (iii)(z) of Section 4.10,
(i) one time non-cash compensation charges, including any
arising from existing stock options resulting from any merger
or recapitalization transaction and (j) start-up costs and
duplicative costs incurred in connection with the transition
service and distribution agreements in effect on the Issue Date
(as the same may be amended from time to time). For purposes
of clause (iii)(w) of the first paragraph of Section 4.10,
Consolidated Net Income shall be reduced by any cash dividends
paid with respect to any series of Designated Preferred Stock.
"Consolidated Net Worth" means, with respect to any
----------------------
Person for any date of determination, the sum of (i) stated
capital with respect to Capital Stock of such Person and
additional paid-in capital, and (ii) retained earnings (or
minus accumulated deficit) of such Person and its Subsidiaries
(or, in the case of the Company, the Restricted Subsidiaries),
less, to the extent included in the foregoing, amounts
attributable to Disqualified Capital Stock, each item
determined on a consolidated basis in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect
-----------------------------
to any Person for any period, the aggregate depreciation,
amortization and other non-cash expenses of such Person and its
Restricted Subsidiaries reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge constituting an
extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future period,
other than the net non-cash charges related to deferred revenue
in connection with recourse provisions under instrument sales
programs entered into in the ordinary course of business).
-10-
"Continuing Directors" means, as of any date of
--------------------
determination, any member of the Board of Directors of the
Company or Holdings, as the case may be, who (i) was a member
of such Board of Directors on the Issue Date or (ii) was
nominated for election or elected to such Board of Directors
with, or whose election to such Board of Directors was approved
by, the affirmative vote of a majority of the Continuing
Directors who were members of such Board of Directors at the
time of such nomination or election or (iii) is any designee of
the Principals or their Affiliates or was nominated by the
Principals or their Affiliates or any designees of the
Principals or their Affiliates on the Board of Directors.
"Covenant Defeasance" has the meaning provided in
-------------------
Section 8.02.
"Currency Agreement" means any foreign exchange
------------------
contract, currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any Restricted
Subsidiary against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee,
---------
liquidator, sequestrator or similar official under any
Bankruptcy Law.
"Default" means an event or condition the occurrence
-------
of which is, or with the lapse of time or the giving of notice
or both would be, an Event of Default.
"Default Notice" has the meaning provided in
--------------
Section 10.02.
"Depository" means The Depository Trust Company, its
----------
nominees and successors.
"Designated Noncash Consideration" means the fair
--------------------------------
market value of noncash consideration received by the Company
or one or its Restricted Subsidiaries in connection with an
Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an officers' certificate executed by
the principal executive officer and the principal financial
officer of the Company or such Restricted Subsidiary, less the
amount of cash or Cash Equivalents received in connection with
a sale of such Designated Noncash Consideration. Such
officers' certificate shall state the basis of such valuation,
which shall be a report of a nationally recognized investment
banking firm with respect to the receipt in one or a series of
related
-11-
transactions of Designated Noncash Consideration with a
fair market value in excess of $10.0 million.
"Designated Preferred Stock" means Preferred Stock
--------------------------
that is so designated as Designated Preferred Stock, pursuant
to an officers' certificate executed by the principal executive
officer and the principal financial officer of the Company, on
the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (iii) of the
first paragraph of Section 4.10.
"Designated Senior Debt" means (i) Indebtedness under
----------------------
or in respect of the Bank Credit Agreement and (ii) any other
Indebtedness constituting Senior Debt which, at the time of
determination, has an aggregate principal amount of at least
$25.0 million and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the
Company.
"Disqualified Capital Stock" means that portion of
--------------------------
any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than
an event which would constitute a Change of Control), matures
(excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at
the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control) on or prior to the
final maturity date of the Notes.
"DuPont" means E.I. du Pont de Nemours and Company.
------
"Equity Offering" means any offering of Qualified
---------------
Capital Stock of Holdings or the Company; provided that, in the
--------
event of any Equity Offering by Holdings, Holdings contributes
to the capital of the Company the portion of the net cash
proceeds of such Equity Offering necessary to pay the aggregate
redemption price (plus accrued interest to the redemption date)
of the Notes to be redeemed pursuant to Paragraph 6(b) of the
Notes.
"Event of Default" has the meaning provided in
----------------
Section 6.01.
-12-
"Exchange Act" means the Securities Exchange Act of
------------
1934, as amended, and the rules and regulations promulgated by
the SEC thereunder.
"Exchange Notes" has the meaning provided in the
--------------
preamble to this Indenture.
"Exchange Offer" means the registration by the
--------------
Company under the Securities Act pursuant to a registration
statement of the offer by the Company to each Holder of the
Initial Notes to exchange all the Initial Notes held by such
Holder for the Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Initial Notes
held by such Holder, all in accordance with the terms and
conditions of the Registration Rights Agreement.
"Existing Notes" means the Company's 13% Senior
--------------
Subordinated Notes due 2005.
"fair market value" means, unless otherwise
-----------------
specified, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing
and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company
acting reasonably and in good faith and shall be evidenced by a
resolution of the Board of Directors of the Company delivered
to the Trustee.
"GAAP" is defined to mean generally accepted
----
accounting principles in the United States of America as in
effect as of the date of this Indenture, including, without
limitation, those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP applied on a consistent basis,
except that calculations made for purposes of determining
compliance with the terms of the covenants and with other
provisions of this Indenture shall be made without giving
effect to (i) the deduction or amortization of any premiums,
fees, and expenses incurred in connection with the Acquisition
and related financings or any other permitted incurrence of
-13-
Indebtedness or Refinancing Indebtedness and (ii) except as
otherwise provided, the amortization of any amounts required or
permitted by Accounting Principles Board Opinion Nos. 16
(including non-cash write-ups and non-cash charges relating to
inventory, fixed assets and in-process research and
development, in each case arising in connection with the
Acquisition and the acquisition of the Company in 1994) and 17
(including non-cash charges relating to intangibles and
goodwill arising in connection with the Acquisition).
"Global Note" has the meaning provided in
-----------
Section 2.01.
"GS Capital" means GS Capital Partners, L.P.
----------
"GS Capital Related Party" means (a) any stockholder
------------------------
or partner of GS Capital on the Issue Date or (b) any trust,
corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding
an 80% or more controlling interest which consist of GS Capital
and/or such other Persons referred to in the immediately
preceding clause (a).
"Holder" or "Noteholder" means the Person in whose
------ ----------
name a Note is registered on the Registrar's books.
"Holdings" means Diagnostics Holding, Inc., a
--------
Delaware corporation.
"Holdings Preferred Stock" has the meaning provided
------------------------
in Section 4.10.
"incur" has the meaning provided Section 4.12.
-----
"Indebtedness" means with respect to any Person,
------------
without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person,
(iv) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention
agreement (but excluding trade accounts payable and warranty
and service obligations arising in the ordinary course of
business), (v) all obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar
credit transaction, (vi) guarantees and other contingent
obligations in
-14-
respect of Indebtedness referred to in clauses
(i) through (v) above and clause (viii) below, (vii) all
obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any lien on any
property or asset of such Person, the amount of such obligation
being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured,
(viii) all obligations under currency swap agreements and
interest swap agreements of such Person and (ix) all
Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed
repurchase price, but excluding accrued dividends, if any. For
purposes hereof, (x) the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured
by, the fair market value of such Disqualified Capital Stock,
such fair market value shall be determined reasonably and in
good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock and (y) any transfer of accounts
receivable, equipment or other assets (including contract
rights) which constitute a sale for purposes of GAAP and any
related recourse provisions under instrument sales programs
entered into in the ordinary course of business shall not
constitute Indebtedness hereunder.
"Indenture" means this Indenture, as amended or
---------
supplemented from time to time in accordance with the terms
hereof.
"Initial Notes" has the meaning provided in the
-------------
preamble to this Indenture.
"Initial Public Offering" means the first
-----------------------
underwritten public offering of Qualified Capital Stock by
either Holdings or the Company pursuant to a registration
statement filed with the SEC in accordance with the Securities
Act for aggregate net cash proceeds of at least $50.0 million;
provided that in the event the Initial Public Offering is
- --------
consummated by Holdings, Holdings contributes to the capital of
the Company at least $50.0 million of the net cash proceeds of
the Initial Public Offering.
-15-
"Initial Purchasers" means BT Securities Corporation,
------------------
CS First Boston Corporation and Morgan Stanley & Co.
Incorporated.
"Institutional Accredited Investor" means an
---------------------------------
institution that is an "accredited investor" as that term is
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Interest Payment Date" means the stated maturity of
---------------------
an installment of interest on the Notes.
"Interest Swap Obligations" means the obligations of
-------------------------
any Person, pursuant to any arrangement with any other Person,
whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made
by such other Person calculated by applying a fixed or a
floating rate of interest on the same notional amount.
"Internal Revenue Code" means the Internal Revenue
---------------------
Code of 1986, as amended to the date hereof and from time to
time hereafter.
"Investment" means, with respect to any Person, any
----------
direct or indirect loan or other extension of credit
(including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for
the account or use of others), or any purchase or acquisition
by such Person of any Capital Stock, bonds, notes, debentures
or other securities or evidences of Indebtedness issued by, any
Person. "Investment" shall exclude extensions of trade credit
by the Company and its Subsidiaries on commercially reasonable
terms in accordance with normal trade practices of the Company
or such Subsidiary, as the case may be. For the purposes of
Section 4.10, (i) "Investment" shall include and be valued at
the book value of the net assets of any Restricted Subsidiary
at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and shall exclude the book value of the
net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary
and (ii) the amount of any Investment shall be the original
cost of such Investment plus the cost of all additional
Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs
with respect to such
-16-
Investment. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Common Stock
of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition,
the Company no longer owns, directly or indirectly, 100% of
the outstanding Common Stock of such Restricted Subsidiary,
the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the book value
of the Common Stock of such Restricted Subsidiary not sold
or disposed of.
"Issue Date" means the date of original issuance of
----------
the Notes.
"Legal Defeasance" has the meaning provided in
----------------
Section 8.02.
"Legal Holiday" has the meaning provided in
-------------
Section 11.07.
"Lien" means any lien, mortgage, deed of trust,
----
pledge, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention
agreement, any lease in the nature thereof and any agreement to
give any security interest).
"Maturity Date" means May 1, 2006.
-------------
"Moody's" means Moody's Investors Service, Inc. and
-------
its successors.
"Net Cash Proceeds" means, with respect to any Asset
-----------------
Sale, the proceeds in the form of cash or Cash Equivalents
received by the Company or any of its Subsidiaries from such
Asset Sale net of (a) out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions),
(b) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements, (c) re-
payment of Indebtedness that is required to be repaid in
connection with such Asset Sale, (d) any portion of cash
proceeds which the Company determines in good faith should be
reserved for post-closing adjustments, it being understood and
agreed that on the day that all such post-closing adjustments
have been determined, the amount (if any) by which the reserved
amount in respect of such Asset Sale exceeds the actual post-
closing
-17-
adjustments payable by the Company or any of its Subsidiaries
shall constitute Net Cash Proceeds on such date.
"Net Proceeds Offer" has the meaning provided in
------------------
Section 4.16.
"Net Proceeds Offer Payment Date" has the meaning
-------------------------------
provided in Section 4.16.
"Net Proceeds Offer Trigger Date" has the meaning
-------------------------------
provided in Section 4.16.
"Non-U.S. Person" means a person who is not a U.S.
---------------
person, as defined in Regulation S.
"Notes" means the Initial Notes and the Exchange
-----
Notes treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Obligations" means all obligations for principal,
-----------
premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness, without duplication.
"Offering Memorandum" means the Offering Memorandum
-------------------
dated April 30, 1996, pursuant to which the Initial Notes were
offered, and any supplement thereto.
"Officer" means, with respect to any Person, the
-------
Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary of such Person, or
any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to any
---------------------
Person, a certificate signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of
such Person and otherwise complying with the requirements of
Sections 11.04 and 11.05, as they relate to the making of an
Officers' Certificate.
"Offshore Physical Notes" has the meaning provided in
-----------------------
Section 2.01.
-18-
"Opinion of Counsel" means a written opinion from
------------------
legal counsel, who may be counsel for the Company, and who is
reasonably acceptable to the Trustee complying with the
requirements of Sections 11.04 and 11.05, as they relate to the
giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in
------------
Section 2.03.
"Permitted Domestic Subsidiary Preferred Stock" means
---------------------------------------------
any series of Preferred Stock of a domestic Restricted
Subsidiary of the Company that constitutes Qualified Capital
Stock and has a fixed dividend rate, the liquidation value of
all series of which, when combined with the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries
incurred pursuant to clause (xvi) of the definition of
Permitted Indebtedness, does not exceed $37.5 million; provided
--------
that such amount shall increase to $75.0 million upon
consummation of an Initial Public Offering.
"Permitted Foreign Subsidiary Preferred Stock" means
--------------------------------------------
any series of Preferred Stock of a foreign Restricted
Subsidiary of the Company that constitutes Qualified Capital
Stock and has a fixed dividend rate, the liquidation value of
all series of which, when combined with the aggregate amount of
Indebtedness of foreign Restricted Subsidiaries of the Company
incurred pursuant to clause (iii) of the definition of
Permitted Indebtedness, does not exceed $35.0 million; provided
--------
that such amount shall increase to $50.0 million upon
consummation of an Initial Public Offering.
"Permitted Indebtedness" means, without duplication,
----------------------
(i) the Notes, (ii) Indebtedness incurred pursuant to the Bank
Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed $585.0 million less the aggregate
amount of Indebtedness of Securitization Entities in Qualified
Securitization Transactions (other than Qualified
Securitization Transactions involving equipment and related
assets); provided that the amount of such reduction shall not
--------
exceed $50.0 million, (A) less the amount of all mandatory
principal payments actually made by the Company in respect of
term loans thereunder (excluding any such payments to the
extent refinanced at the time of payment under a replaced Bank
Credit Agreement) and (B) reduced by any required permanent
repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder; provided that the amount of
--------
Indebtedness permitted to be incurred pursuant to the Bank
-19-
Credit Agreement in accordance with this clause (ii) shall be
in addition to any Indebtedness permitted to be incurred
pursuant to the Bank Credit Agreement in reliance on, and in
accordance with, clauses (x) and (xvi) of this definition,
(iii) Indebtedness of foreign Restricted Subsidiaries of the
Company, which together with the aggregate liquidation value of
all outstanding series of Permitted Foreign Subsidiary
Preferred Stock, does not exceed $35.0 million; provided that
--------
such amount shall increase to $50.0 million upon consummation
of an Initial Public Offering, (iv) other Indebtedness of the
Company and its Subsidiaries outstanding on the Issue Date
reduced by the amount of any scheduled amortization payments or
mandatory prepayments when actually paid or permanent
reductions thereon, (v) Interest Swap Obligations of the
Company or any of its Subsidiaries covering Indebtedness of the
Company or any of its Subsidiaries; provided that any
--------
Indebtedness to which any such Interest Swap Obligations
correspond is otherwise permitted to be incurred under this
Indenture; provided, further, that such Interest Swap
-------- -------
Obligations are entered into, in the judgment of the Company,
to protect the Company from fluctuation in interest rates on
their respective outstanding Indebtedness, (vi) Indebtedness
under Currency Agreements, (vii) intercompany Indebtedness owed
by the Company to any Wholly Owned Restricted Subsidiary of the
Company or by any Restricted Subsidiary of the Company to the
Company or any Wholly Owned Restricted Subsidiary of the
Company, (viii) Acquired Indebtedness to the extent the Company
could have incurred such Indebtedness in accordance with
Section 4.12 on the date such Indebtedness became Acquired
Indebtedness, (ix) guarantees by the Company and its Wholly
Owned Restricted Subsidiaries of each other's Indebtedness;
provided that such Indebtedness is permitted to be incurred
- --------
under this Indenture, including, with respect to guarantees by
Wholly Owned Restricted Subsidiaries of the Company, Section
4.19, (x) Indebtedness (including Capitalized Lease
Obligations) incurred by the Company or any of its Restricted
Subsidiaries to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the
direct purchase of assets or the Capital Stock of any Person
owning such assets) in an aggregate principal amount
outstanding not to exceed 5% of Total Assets at the time of any
incurrence thereof (including any Refinancing Indebtedness with
respect thereto) (which amount may, but need not, be incurred
in whole or in part under the Bank Credit Agreement), (xi)
Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of
-20-
credit in respect of workers' compensation claims or self-
insurance, or other Indebtedness with respect to reimbursement
type obligations regarding workers' compensation claims, (xii)
Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for
indemnification, adjustment of purchase price, earn out or
other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a
Restricted Subsidiary of the Company, other than guarantees of
Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition; provided that the
--------
maximum assumable liability in respect of all such Indebtedness
shall at no time exceed the gross proceeds actually received by
the Company and its Restricted Subsidiaries in connection with
such disposition, (xiii) obligations in respect of performance
and surety bonds and completion guarantees provided by the
Company or any Restricted Subsidiary of the Company in the
ordinary course of business, (xiv) any refinancing,
modification, replacement, renewal, restatement, refunding,
deferral, extension, substitution, supplement, reissuance or
resale of existing or future Indebtedness, including any
additional Indebtedness incurred to pay interest or premiums
required by the instruments governing such existing or future
Indebtedness as in effect at the time of issuance thereof
("Required Premiums") and fees in connection therewith
("Refinancing Indebtedness"); provided that any such event
--------
shall not (1) result in an increase in the aggregate principal
amount of Permitted Indebtedness (except to the extent such
increase is a result of a simultaneous incurrence of additional
Indebtedness (A) to pay Required Premiums and related fees or
(B) otherwise permitted to be incurred under this Indenture) of
the Company and its Subsidiaries and (2) create Indebtedness
with a Weighted Average Life to Maturity at the time such
Indebtedness is incurred that is less than the Weighted Average
Life to Maturity at such time of the Indebtedness being
refinanced, modified, replaced, renewed, restated, refunded,
deferred, extended, substituted, supplemented, reissued or
resold (except that this subclause (2) will not apply in the
event the Indebtedness being refinanced, modified, replaced,
renewed, restated, refunded, deferred, extended, substituted,
supplemented, reissued or resold was originally incurred in
reliance upon clauses (vii) or (xvi) of this definition),
(xv) the incurrence by a Securitization Entity of Indebtedness
in a Qualified Securitization Transaction that is not recourse
to the Company or any Subsidiary of the Company (except for
Standard Securitization Undertakings), and (xvi) additional
Indebtedness
-21-
of the Company and its Restricted Subsidiaries in an aggregate
principal amount, which together with the aggregate liquidation
value of all outstanding series of Permitted Domestic Subsidiary
Preferred Stock, does not exceed $37.5 million at any one time
outstanding (which amount, in the case of Indebtedness, may, but
need not, be incurred in whole or in part under the Bank Credit
Agreement); provided that such amount shall increase to $75.0
--------
million upon consummation of an Initial Public Offering.
"Permitted Investments" means (i) Investments by the
---------------------
Company or any Restricted Subsidiary of the Company in any
Wholly Owned Restricted Subsidiary of the Company (whether
existing on the Issue Date or created thereafter) or in any
other Person (including by means of transfer of cash or other
property) if as a result of such Investment such Person shall
become a Wholly Owned Restricted Subsidiary of the Company and
Investments in the Company by any Restricted Subsidiary of the
Company; (ii) cash and Cash Equivalents; (iii) Investments
existing on the Issue Date; (iv) loans and advances to
employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business; (v) accounts
receivable created or acquired in the ordinary course of
business; (vi) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the
Company's or its Restricted Subsidiaries' businesses and
otherwise in compliance with this Indenture; (vii) Investments
in Unrestricted Subsidiaries in an amount at any one time
outstanding not to exceed $25.0 million; provided that such
--------
amount shall increase to $50.0 million upon consummation of an
Initial Public Offering; (viii) Investments in securities of
trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers; (ix) guaran-
tees (A) by the Company of Indebtedness otherwise permitted to
be incurred by Restricted Subsidiaries of the Company under
this Indenture or (B) permitted by Section 4.19; (x) additional
Investments having an aggregate fair market value, taken
together with all other Investments made pursuant to this
clause (x) that are at that time outstanding, not to exceed 5%
of Total Assets at the time of such Investment (with the fair
market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value);
(xi) any Investment by the Company or a Wholly Owned Subsidiary
of the Company in a Securitization Entity or any Investment by
a Securitization Entity in any other Person in connection with
a Qualified Securitization Transaction; provided that any
--------
Investment in a Securitization Entity is in the
-22-
form of a Purchase Money Note or an equity interest; (xii) any
transaction to the extent it constitutes an Investment that is
permitted by, and made in accordance with, clause (b) of
Section 4.11 (other than transactions described in clause (v)
of such clause (b)); (xiii) investments the payment for which
consists exclusively of Qualified Capital Stock of the Company
and (xiv) Investments received by the Company or its Restricted
Subsidiaries as consideration for asset sales, including Asset
Sales; provided in the case of an Asset Sale, such Asset Sale
--------
is effected in compliance with Section 4.16.
"Permitted Liens" means the following types of Liens:
---------------
(i) Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b)
contested in good faith by appropriate proceedings and as
to which the Company or its Restricted Subsidiaries shall
have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, including any Lien securing letters of
credit issued in the ordinary course of business
consistent with past practice in connection therewith, or
to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of
Default;
(v) easements, rights-of-way, zoning restrictions
and other similar charges or encumbrances in respect of
real property not interfering in any material respect with
-23-
the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any
Capitalized Lease Obligation;
(vii) purchase money Liens to finance property or
assets of the Company or any Restricted Subsidiary of the
Company acquired in the ordinary course of business;
provided, however, that (A) the related purchase money
-------- -------
Indebtedness shall not exceed the cost of such property or
assets and shall not be secured by any property or assets
of the Company or any Restricted Subsidiary of the Company
other than the property and assets so acquired and (B) the
Lien securing such Indebtedness shall be created within 90
days of such acquisition;
(viii) Liens upon specific items of inventory or other
goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or
created for the account of such Person to facilitate the
purchase, shipment, or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with
respect to commercial letters of credit which encumber
documents and other property relating to such letters of
credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory,
contractual, or warranty requirements of the Company or
any of its Restricted Subsidiaries, including rights of
offset and set-off;
(xi) Liens securing Interest Swap Obligations which
Interest Swap Obligations relate to Indebtedness that is
otherwise permitted under this Indenture;
(xii) Liens securing Indebtedness under Currency
Agreements;
(xiii) Liens securing Indebtedness of foreign
Restricted Subsidiaries of the Company incurred in
reliance on clause (iii) of the definition of Permitted
Indebtedness;
-24-
(xiv) Liens securing Acquired Indebtedness incurred in
reliance on clause (viii) of the definition of Permitted
Indebtedness;
(xv) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary with
respect to obligations that do not in the aggregate exceed
$10.0 million at any one time outstanding;
(xvi) Liens on assets transferred to a Securitization
Entity or on assets of a Securitization Entity, in either
case incurred in connection with a Qualified
Securitization Transaction;
(xvii) leases or subleases granted to others that do
not materially interfere with the ordinary course of
business of the Company and its Restricted Subsidiaries;
(xviii) Liens arising from filing Uniform Commercial
Code financing statements regarding leases;
(xix) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment
of custom duties in connection with the importation of
goods; and
(xx) Liens existing on the Issue Date, together with
any Liens securing Indebtedness incurred in reliance on
clause (xiv) of the definition of Permitted Indebtedness
in order to refinance the Indebtedness secured by Liens
existing on the Issue Date; provided that the Liens
--------
securing the refinancing Indebtedness shall not extend to
property other than that pledged under the Liens securing
the Indebtedness being refinanced.
"Person" means an individual, partnership,
------
corporation, unincorporated organization, trust or joint
venture, or a governmental agency or political subdivision
thereof.
"Physical Notes" has the meaning provided in
--------------
Section 2.01.
"Plan of Liquidation" means, with respect to any
-------------------
Person, a plan that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or
not substantially contemporaneously, in phases or otherwise)
(i) the sale, lease, conveyance or other disposition of all or
substantially
-25-
all of the assets of such Person otherwise than as an entirety
or substantially as an entirety and (ii) the distribution of
all or substantially all of the proceeds of such sale, lease,
conveyance or other disposition and all or substantially all
of the remaining assets of such Person to holders of Capital
Stock of such Person.
"Preferred Stock" of any Person means any Capital
---------------
Stock of such Person that has preferential rights to any other
Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes)
---------
means the principal amount of such Indebtedness plus the
premium, if any, on such Indebtedness.
"Principals" means Bain Capital and GS Capital.
----------
"Private Placement Legend" means the legend initially
------------------------
set forth on the Notes in the form set forth in Section 2.15.
"Proceeds Purchase Date" has the meaning provided in
----------------------
Section 4.16.
"Productive Assets" means assets (including Capital
-----------------
Stock) of a kind used or usable in the businesses of the
Company and its Restricted Subsidiaries permitted by Section
4.20.
"pro forma" means, with respect to any calculation
---------
made or required to be made pursuant to the terms of this
Indenture, a calculation in accordance with Article 11 of
Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company in consultation with its
independent public accountants.
"Purchase Money Note" means a promissory note of a
-------------------
Securitization Entity evidencing a line of credit, which may be
irrevocable, from the Company or any Subsidiary of the Company
in connection with a Qualified Securitization Transaction to a
Securitization Entity, which note shall be repaid from cash
available to the Securitization Entity, other than amounts
required to be established as reserves pursuant to agreements,
amounts paid to investors in respect of interest, principal and
other amounts owing to such investors and amounts paid in
connection with the purchase of newly generated receivables or
newly acquired equipment.
-26-
"Qualified Capital Stock" means any stock that is not
-----------------------
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have
----------------------------- ---
the meaning specified in Rule 144A under the Securities Act.
"Qualified Securitization Transaction" means any
------------------------------------
transaction or series of transactions that may be entered into
by the Company or any of its Subsidiaries pursuant to which the
Company or any or its Subsidiaries may sell, convey or
otherwise transfer to (a) a Securitization Entity (in the case
of a transfer by the Company or any of its Subsidiaries) and
(b) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in,
any accounts receivable or equipment (whether now existing or
arising or acquired in the future) of the Company or any of its
Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable
and equipment, all contracts and contract rights and all
guarantees or other obligations in respect of such accounts
receivable and equipment, proceeds of such accounts receivable
and equipment and other assets (including contract rights)
which are customarily transferred or in respect of which
security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable
and equipment.
"Record Date" means the Record Dates specified in the
-----------
Notes, whether or not a Legal Holiday.
"Redemption Date," when used with respect to any Note
---------------
to be redeemed, means the date fixed for such redemption
pursuant to this Indenture and the Notes.
"Redemption Price," when used with respect to any
----------------
Note to be redeemed, means the price fixed for such redemption
pursuant to this Indenture and the Notes.
"Reference Date" has the meaning provided in
--------------
Section 4.10.
"Refinancing Indebtedness" has the meaning provided
------------------------
in clause (xiv) of the definition of Permitted Indebtedness.
"Refunding Capital Stock" has the meaning provided in
-----------------------
Section 4.10.
"Registrar" has the meaning provided in Section 2.03.
---------
-27-
"Registration Rights Agreement" means the
-----------------------------
Registration Rights Agreement dated May 7, 1996 among the
Company and the Initial Purchasers for the benefit of
themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms
thereof.
"Regulation S" means Regulation S under the
------------
Securities Act.
"Related Party" means, with respect to Bain Capital,
-------------
any Bain Related Party and with respect to GS Capital, any GS
Capital Related Party.
"Representative" means the indenture trustee or other
--------------
trustee, agent or representative in respect of any Designated
Senior Debt; provided that if, and for so long as, any
--------
Designated Senior Debt lacks such a representative, then the
Representative for such Designated Senior Debt shall at all
times constitute the holders of a majority in outstanding
principal amount of such Designated Senior Debt in respect of
any Designated Senior Debt.
"Required Premiums" has the meaning provided in
-----------------
clause (xiv) of the definition of Permitted Indebtedness.
"Restricted Investment" means an Investment other
---------------------
than a Permitted Investment.
"Restricted Payment" has the meaning provided in
------------------
Section 4.10.
"Restricted Security" has the meaning assigned to
-------------------
such term in Rule 144(a)(3) under the Securities Act; provided
that the Trustee shall be entitled to request and conclusively
rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any
---------------------
Subsidiary of such Person which at the time of determination is
not an Unrestricted Subsidiary.
"Retiring Capital Stock" has the meaning provided in
----------------------
Section 4.10.
"Rule 144A" means Rule 144A under the Securities Act.
---------
-28-
"S&P" means Standard & Poor's Corporation and its
---
successors.
"Sale and Leaseback Transaction" means any direct or
------------------------------
indirect arrangement with any Person or to which any such
Person is a party, providing for the leasing to the Company or
a Restricted Subsidiary of any property, whether owned by the
Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person or to any
other Person from whom funds have been or are to be advanced by
such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means, the Securities Act of 1933,
--------------
as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Securitization Entity" means a Wholly Owned
---------------------
Subsidiary of the Company (or another Person in which the
Company or any Subsidiary of the Company makes an Investment
and to which the Company or any Subsidiary of the Company
transfers accounts receivable or equipment and related assets)
which engages in no activities other than in connection with
the financing of accounts receivable or equipment and which is
designated by the Board of Directors of the Company (as
provided below) as a Securitization Entity (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 Standard Securitization Undertakings, (ii) is
recourse to or obligates the Company or any Subsidiary of the
Company in any way other than pursuant to Standard Securiti-
zation Undertakings or (iii) subjects any property or asset of
the Company or any Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any
Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms no less
favorable to the Company or such Subsidiary than those that
might be obtained at the time from Persons that are not
Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing
receivables of such entity, and (c) to which neither the
Company nor any Subsidiary of the Company has any obligation to
-29-
maintain or preserve such entity's financial condition or cause
such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors of
the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing conditions.
"Senior Debt" means the principal of, premium, if
-----------
any, and interest (including any interest accruing subsequent
to the filing of a petition of bankruptcy at the rate provided
for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any
Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the
case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not
be senior in right of payment to the Notes. Without limiting
the generality of the foregoing, "Senior Debt" shall also
include the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed
claim under applicable law) on, and all other amounts owing in
respect of, (x) all monetary obligations (including guarantees
thereof) of every nature of the Company under the Bank Credit
Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters
of credit, fees, expenses and indemnities, (y) all Interest
Swap Obligations (including guarantees thereof) and (z) all
obligations (including guarantees thereof) under Currency
Agreements, in each case whether outstanding on the Issue Date
or thereafter incurred. Notwithstanding the foregoing, Senior
Debt shall not include (i) any Indebtedness, if the instrument
creating or evidencing the same or the assumption or guarantee
thereof expressly provides that such Indebtedness shall not be
senior in right of payment to the Notes, (ii) any Indebtedness
of the Company to a Subsidiary of the Company, (iii) Indebted-
ness to, or guaranteed on behalf of, any shareholder, director,
officer or employee of the Company or any Subsidiary of the
Company (including, without limitation, amounts owed for
compensation), (iv) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods, materials
or services, (v) Indebtedness represented by Disqualified
Capital Stock, (vi) any liability for federal, state, local or
-30-
other taxes owed or owing by the Company, (vii) that portion of
any Indebtedness incurred in violation of the provisions set
forth under Section 4.12 (but, as to any such obligation, no
such violation shall be deemed to exist for purposes of this
clause (vii) if the holder(s) of such obligation or their
representative and the Trustee shall have received an Officers'
Certificate of the Company to the effect that the incurrence of
such Indebtedness does not (or, in the case of revolving credit
Indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing
thereunder is made) would not violate such provisions of this
Indenture) and (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other
Indebtedness of the Company, including, without limitation, the
Existing Notes.
"Significant Subsidiary" means, as of any date of
----------------------
determination, for any Person, each Subsidiary of such Person
which (i) for the most recent fiscal year of such Person (on or
prior to December 31, 1996, the fiscal period beginning on the
Issue Date and ending on the most recently completed fiscal
quarter of such Person) accounted for more than 10% of
consolidated revenues or consolidated net income of such Person
or (ii) as at the end of such fiscal year (on or prior to
December 31, 1996, the fiscal period beginning on the Issue
Date and ending on the most recently completed fiscal quarter
of such Person), was the owner of more than 10% of the
consolidated assets of such Person.
"Standard Securitization Undertakings" means
------------------------------------
representations, warranties, covenants and indemnities entered
into by the Company or any Subsidiary of the Company which are
reasonably customary in an accounts receivable or equipment
transaction.
"Subsidiary", with respect to any Person, means
----------
(i) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in
the election of directors under ordinary circumstances shall at
the time be owned, directly or indirectly, by such Person or
(ii) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time,
directly or indirectly, owned by such Person.
"Tax Allocation Agreement" means the tax allocation
------------------------
agreement between the Company and Holdings as in effect on the
Issue Date.
-31-
"TIA" means the Trust Indenture Act of 1939 (15
---
U.S.C. (S)(S) 77aaa-77bbbb), as amended, as in effect on the date
of this Indenture, except as otherwise provided in Section
9.04.
"Total Assets" means the total consolidated assets of
------------
the Company and its Restricted Subsidiaries, as set forth on
the Company's most recent consolidated balance sheet.
"Trust Officer" means any officer of the Trustee
-------------
assigned by the Trustee to administer this Indenture, or in the
case of a successor trustee, an officer assigned to the
department, division or group performing the corporation trust
work of such successor and assigned to administer this
Indenture.
"Trustee" means the party named as such in this
-------
Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such
successor.
"Unrestricted Subsidiary" of any Person means (i) any
-----------------------
Subsidiary of such Person that at the time of determination
shall be or continue to be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the
manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien
on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so
designated; provided that (x) the Company certifies to the
--------
Trustee that such designation complies with Section 4.10 and
(y) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to
any Indebtedness pursuant to which the lender has recourse to
any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if
(x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12 and (y) immediately before and immediately
after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced
-32-
to the Trustee by promptly filing with the Trustee a copy of the
resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct
---------------------------
obligations of, and obligations guaranteed by, the United
States of America for the payment of which the full faith and
credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of
-----------------
the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
"U.S. Physical Notes" has the meaning provided in
-------------------
Section 2.01.
"Weighted Average Life to Maturity" means, when
---------------------------------
applied to any Indebtedness at any date, the number of years
obtained by dividing (a) the then outstanding aggregate
principal amount of such Indebtedness into (b) the sum of the
total of the products obtained by multiplying (i) the amount of
each then remaining installment, sinking fund, serial maturity
or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person
----------------------------------
means any Restricted Subsidiary of such Person of which all the
outstanding voting securities (other than directors' qualifying
shares or an immaterial amount of shares required to be owned
by other Persons pursuant to applicable law) are owned by such
Person or any Wholly Owned Restricted Subsidiary of such
Person.
SECTION 1.02. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a
part of, this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a
Noteholder.
-33-
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company or any other obligor on the Notes.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule and not otherwise defined herein have
the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP as in
effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular; and
(5) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
---------------
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
hereto. The Exchange Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or depository rule or
usage. The Company and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them.
-34-
Each Note shall be dated the date of its issuance and shall
show the date of its authentication.
The terms and provisions contained in the Notes,
annexed hereto as Exhibits A and B, shall constitute, and are
hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global
Notes in registered form, substantially in the form set forth
in Exhibit A (the "Global Note"), deposited with the Trustee,
as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Note may from time to
time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued in the form of
permanent certificated Notes in registered form in
substantially the form set forth in Exhibit A (the "Offshore
Physical Notes"). Notes offered and sold in reliance on any
other exemption from registration under the Securities Act
other than as described in the preceding paragraph shall be
issued, and Notes offered and sold in reliance on Rule 144A may
be issued, in the form of permanent certificated Notes in
registered form, in substantially the form set forth in
Exhibit A (the "U.S. Physical Notes"). The Offshore Physical
Notes and the U.S. Physical Notes are sometimes collectively
herein referred to as the "Physical Notes." Physical Notes
shall initially be registered in the name of the Depository or
the nominee of such Depository and be delivered to the Trustee
as custodian for such Depository. Beneficial owners of
Physical Notes, however, may request registration of such
Physical Notes in their names or the names of their nominees.
SECTION 2.02. Execution and Authentication;
Aggregate Principal Amount.
-----------------------------
Two Officers, or an Officer and an Assistant
Secretary, shall sign, or one Officer shall sign and one
Officer or an Assistant Secretary (each of whom shall, in each
case, have been duly authorized by all requisite corporate
actions) shall
-35-
attest to, the Notes for the Company by manual or facsimile
signature. The Company's seal shall also be reproduced on
the Notes.
If an Officer or Assistant Secretary whose signature
is on a Note was an Officer or Assistant Secretary at the time
of such execution but no longer holds that office or position
at the time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for
original issue in the aggregate principal amount not to exceed
$350,000,000, and (ii) Exchange Notes from time to time for
issue only in exchange for a like principal amount of Initial
Notes, in each case upon written orders of the Company in the
form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Notes to be authenticated, the date
on which the Notes are to be authenticated and the aggregate
principal amount of Notes outstanding on the date of
authentication, whether the Notes are to be Initial Notes or
Exchange Notes, and shall further specify the amount of such
Notes to be issued as the Global Note, Offshore Physical Notes
or U.S. Physical Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed $350,000,000,
except as provided in Section 2.07.
The Trustee shall not be required to authenticate
Notes if the issuance of such Notes pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities
under the Notes and this Indenture in a manner which is not
reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") reasonably acceptable to the Company to
authenticate Notes. Unless otherwise provided in the
appointment, an Authenticating Agent may authenticate Notes
whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. An Authenticating
Agent has the same rights as an Agent to deal with the Company
and Affiliates of the Company.
-36-
The Notes shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which
shall be located in the Borough of Manhattan in the City of New
York, State of New York) where (a) Notes may be presented or
surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company, upon prior
written notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents
reasonably acceptable to the Trustee. The term "Paying Agent"
includes any additional Paying Agent. Neither the Company nor
any Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
agreement shall incorporate the provisions of the TIA and
implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee, in advance, of
the name and address of any such Agent. If the Company fails
to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of demands and
notices in connection with the Notes, until such time as the
Trustee has resigned or a successor has been appointed. The
Paying Agent or Registrar may resign upon 30 days notice to the
Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other
than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of the Holders or the
Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Company or any other obligor
on the Notes), and the Company and the Paying Agent shall
notify the Trustee of any Default by the Company (or any other
-37-
obligor on the Notes) in making any such payment. The Company
at any time may require a Paying Agent to distribute all assets
held by it to the Trustee and account for any assets disbursed
and the Trustee may at any time during the continuance of any
payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it
to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent
shall have no further liability for such assets.
SECTION 2.05. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of the Holders. If the Trustee is not
the Registrar, the Company shall furnish or cause the Registrar
to furnish to the Trustee before each Record Date and at such
other times as the Trustee may request in writing a list as of
such date and in such form as the Trustee may reasonably
require of the names and addresses of the Holders, which list
may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to the provisions of Sections 2.16 and 2.17,
when Notes are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes of
other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested
if its requirements for such transaction are met; provided,
--------
however, that the Notes presented or surrendered for
- -------
registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfer and
exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's or co-Registrar's
request. No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable
upon exchanges or transfers pursuant to Sections 2.10, 3.06,
4.15, 4.16 or 9.06,
-38-
in which event the Company shall be responsible for the payment
of such taxes).
The Registrar or co-Registrar shall not be required
to register the transfer of or exchange of any Note (i) during
a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of Notes and ending at
the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being
redeemed in part.
Any Holder of the Global Note shall, by acceptance of
such Global Note, agree that transfers of beneficial interests
in such Global Notes may be effected only through a book entry
system maintained by the Holder of such Global Note (or its
agent), and that ownership of a beneficial interest in the Note
shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Trustee or
if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the
Company, such Holder must provide an affidavit of lost
certificate and an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee,
to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. The
Company may charge such Holder for its reasonable, out-of-
pocket expenses in replacing a Note, including reasonable fees
and expenses of counsel. Every replacement Note shall
constitute an additional obligation of the Company.
SECTION 2.08. Outstanding Notes.
-----------------
Notes outstanding at any time are all the Notes that
have been authenticated by the Trustee except those cancelled
by it, those delivered to it for cancellation and those
described in this Section as not outstanding. Subject to the
provisions of Section 2.09, a Note does not cease to be
outstanding because the Company or any of its Affiliates holds
the Note.
-39-
If a Note is replaced pursuant to Section 2.07 (other
than a mutilated Note surrendered for replacement), it ceases
to be outstanding unless the Trustee receives an Opinion of
Counsel that the replaced Note is held by a bona fide
---- ----
purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to
Section 2.07.
If on a Redemption Date or the Maturity Date the
Paying Agent holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the
terms of this Indenture, then on and after that date such Notes
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction,
waiver, consent or notice, Notes owned by the Company or any of
its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Trust Officer
of the Trustee actually knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing,
when it or any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes
so repurchased or otherwise acquired.
SECTION 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate
temporary Notes upon receipt of a written order of the Company
in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to
be authenticated. Temporary Notes shall be substantially in
the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee
shall authenticate upon receipt of a written order of the
Company pursuant to Section 2.02 definitive Notes in exchange
for temporary Notes.
-40-
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of
the Company, shall dispose of all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to
Section 2.07, the Company may not issue new Notes to replace
Notes that it has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes
unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest
to the Persons who are Holders on a subsequent special record
date, which date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder, as of a
recent date selected by the Company, with a copy to the
Trustee, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest,
and interest payable on such defaulted interest, if any, to be
paid.
SECTION 2.13. CUSIP Number.
------------
The Company in issuing the Notes may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to Holders;
provided that no representation is hereby deemed to be made by
- --------
the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes, and that reliance
may be placed only on the other identification numbers printed
on the Notes. The Company shall promptly notify the Trustee of
any change in the CUSIP number.
-41-
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each
Interest Payment Date and on the Maturity Date, the Company
shall have deposited with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case
may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date or
Maturity Date, as the case may be.
SECTION 2.15. Restrictive Legends.
-------------------
Each Global Note and Physical Note that constitutes a
Restricted Security shall bear the following legend (the
"Private Placement Legend") on the face thereof until May 7,
1999, unless otherwise agreed by the Company and the Holder
thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES
THAT IT WILL NOT WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE OR
REGISTRAR), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN
-42-
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF
THE SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Each Global Note shall also bear the following legend
on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY
THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
-43-
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE
INDENTURE.
SECTION 2.16. Book-Entry Provisions
for Global Security.
---------------------
(a) The Global Note initially shall (i) be
registered in the name of the Depository or the nominee of such
Depository, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear legends as set forth in Sec-
tion 2.15.
Members of, or participants in, the Depository
("Agent Members") shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the
Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a
holder of any Note.
(b) Transfers of the Global Note shall be limited to
transfers in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of
beneficial owners in the Global Note may be transferred or
exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section
2.17. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in
the Global Note if (i) the Depository notifies the Company that
it is unwilling or unable to continue as Depository for the
Global Note and a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) an Event of
Default has
-44-
occurred and is continuing and the Registrar has received a
written request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in the Global Note to
beneficial owners pursuant to paragraph (b), the Registrar
shall (if one or more Physical Notes are to be issued) reflect
on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note
to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical
Notes of like tenor and amount.
(d) In connection with the transfer of the entire
Global Note to beneficial owners pursuant to paragraph (b), the
Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its
beneficial interest in the Global Note, an equal aggregate
principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted
Security delivered in exchange for an interest in the Global
Note pursuant to paragraph (b) or (c) shall, except as
otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the legend regarding transfer restrictions
applicable to the Physical Notes set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies
and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this
Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited
---------------------------------------------
Investors and Non-U.S. Persons. The following provisions shall
- ------------------------------
apply with respect to the registration of any proposed transfer
of a Note constituting a Restricted Security to any
Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Note constituting a Restricted Security, whether or not
-45-
such Note bears the Private Placement Legend, if (x) the
requested transfer is after May 7, 1999 or (y) (1) in the
case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the
proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto;
and
(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in the Global Note, upon
receipt by the Registrar of (x) the certificate, if any,
required by paragraph (i) above and (y) instructions given
in accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and
records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the
principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note
to be transferred, and (b) the Company shall execute and the
Trustee shall authenticate and deliver one or more Physical
Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions
-----------------
shall apply with respect to the registration of any proposed
transfer of a Note constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Note
stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for
on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as
it has requested
-46-
pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor
is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule
144A; and
(ii) if the proposed transferee is an Agent Member,
and the Notes to be transferred consist of Physical Notes
which after transfer are to be evidenced by an interest in
the Global Note, upon receipt by the Registrar of
instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the
principal amount of the Global Note in an amount equal to
the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical
Notes so transferred.
(c) Private Placement Legend. Upon the transfer,
------------------------
exchange or replacement of Notes not bearing the Private
Placement Legend, the Registrar shall deliver Notes that do not
bear the Private Placement Legend. Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private
Placement Legend unless (i) the circumstance contemplated by
paragraph (a)(i)(x) of this Section 2.17 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the
provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing
-------
the Private Placement Legend, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set
forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Company shall have the
right to inspect and make copies of all such letters, notices
or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
-47-
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to
Paragraph 6 of the Notes, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the
principal amount of the Notes to be redeemed.
The Company shall give each notice provided for in
this Section 3.01 at least 60 days before the Redemption Date
(unless a shorter notice period shall be satisfactory to the
Trustee, as evidenced in a writing signed on behalf of the
Trustee), together with an Officers' Certificate stating that
such redemption shall comply with the conditions contained
herein and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
---------------------------------
If fewer than all of the Notes are to be redeemed,
the Trustee shall select the Notes to be redeemed on a pro rata
--- ----
basis, by lot or in such other fair and reasonable manner
chosen at the discretion of the Trustee; provided, however,
-------- -------
that if a partial redemption is made with the proceeds of an
Equity Offering, selection of the Notes or portion thereof for
redemption shall be made by the Trustee only on a pro rata
--- ----
basis, unless such method is otherwise prohibited. The Trustee
shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify the
Company in writing of the Notes selected for redemption and, in
the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes in
denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal of Notes that
have denominations larger than $1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply
to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail, postage prepaid, to
each Holder whose Notes are to be redeemed, with a copy to the
-48-
Trustee and any Paying Agent. At the Company's written
request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense.
Each notice for redemption shall identify the Notes
to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which
such redemption is being made;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest, if any;
(6) that, unless the Company defaults in making the
redemption payment, interest on Notes called for
redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price plus
accrued interest, if any, upon surrender to the Paying
Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be
redeemed and that, after the Redemption Date, and upon
surrender of such Note, a new Note or Notes in the
aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
(8) if fewer than all the Notes are to be redeemed,
the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate
principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such
partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance
with Section 3.03, Notes called for redemption become due and
-49-
payable on the Redemption Date and at the Redemption Price plus
accrued interest, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price (which shall include accrued interest
thereon to the Redemption Date), but installments of interest,
the maturity of which is on or prior to the Redemption Date,
shall be payable to Holders of record at the close of business
on the relevant record dates referred to in the Notes.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all
Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any U.S. Legal Tender so
deposited which is not required for that purpose, except with
respect to monies owed as obligations to the Trustee pursuant
to Article Seven.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price plus accrued interest, if any, interest on the
Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is to be redeemed in
part, the Company shall execute and the Trustee shall
authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
----------------
The Company shall pay the principal of and interest
on the Notes on the dates and in the manner provided in the
Notes and in this Indenture. An installment of principal of or
interest on the Notes shall be considered paid on the date it
is due if the Trustee or Paying Agent (other than the Company
or an Affiliate of the Company) holds on that date U.S. Legal
-50-
Tender designated for and sufficient to pay the installment in
full and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture.
The Company shall pay, to the extent such payments
are lawful, interest on overdue principal and on overdue
installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate borne by
the Notes plus 2% per annum. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required
to do so by law, deduct or withhold income or other similar
taxes imposed by the United States of America from principal or
interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency
required under Section 2.03. The Company shall give prior
written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth
in Section 11.02.
SECTION 4.03. Corporate Existence.
-------------------
Except as otherwise permitted by Article Five and
Section 4.16, the Company shall do or cause to be done, at its
own cost and expense, all things necessary to preserve and keep
in full force and effect its corporate existence and the
corporate existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of each
such Restricted Subsidiary and the material rights (charter and
statutory) and franchises of the Company and each such
Restricted Subsidiary; provided, however, that the Company
-------- -------
shall not be required to preserve, with respect to itself, any
material right or franchise and, with respect to any of its
Restricted Subsidiaries, any such existence, material right or
franchise, if the Board of Directors of the Company shall
determine in good faith that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and the Restricted Subsidiaries, taken as a whole.
-51-
SECTION 4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and
additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and
(ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien upon the property of it
or any of its Subsidiaries; 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 properly instituted and
diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.05. Maintenance of Properties
and Insurance.
-------------------------
(a) The Company shall, and shall cause each of its
Restricted Subsidiaries to, maintain its material properties in
good working order and condition (subject to ordinary wear and
tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively
conduct and carry on its business; provided, however, that
--------- -------
nothing in this Section 4.05 shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the operation
and maintenance of any of its properties, if such
discontinuance is, in the good faith judgment of the Board of
Directors of the Company or the Restricted Subsidiary, as the
case may be, desirable in the conduct of their respective
businesses and is not disadvantageous in any material respect
to the Holders.
(b) The Company shall provide or cause to be
provided, for itself and each of its Restricted Subsidiaries,
insurance (including appropriate self-insurance) against loss
or damage of the kinds that, in the good faith judgment of the
Board of Directors of the Company, are adequate and appropriate
for the conduct of the business of the Company and such
Restricted Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America
or an agency or instrumentality thereof, in such amounts, with
such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Board of Directors of the
Company, for companies similarly situated in the industry.
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SECTION 4.06. Compliance Certificate;
Notice of Default.
-----------------------
(a) The Company shall deliver to the Trustee, within
90 days after the end of the Company's fiscal year, an
Officers' Certificate stating that a review of its activities
and the activities of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has
kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of such Officer's
knowledge the Company during such preceding fiscal year has
kept, observed, performed and fulfilled each and every such
covenant and no Default or Event of Default occurred during
such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing
or, if such signers do know of such Default or Event of
Default, the certificate shall describe the Default or Event of
Default and its status with particularity. The Officers'
Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year
end.
(b) The annual financial statements delivered
pursuant to Section 4.08 shall be accompanied by a written
report of the Company's independent accountants (who shall be a
firm of established national reputation) that in conducting
their audit of such financial statements nothing has come to
their attention that would lead them to believe that the
Company has violated any provisions of Article Four, Five or
Six of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood
that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of
any such violation.
(c) (i) If any Default or Event of Default has
occurred and is continuing or (ii) if any Holder seeks to
exercise any remedy hereunder with respect to a claimed Default
under this Indenture or the Notes, the Company shall deliver to
the Trustee, at its address set forth in Section 11.02 hereof,
by registered or certified mail or by telegram, telex or
facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event,
notice or other action within five Business Days of its
becoming aware of such occurrence.
-53-
SECTION 4.07. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing,
in respect of the conduct of their respective businesses and
the ownership of their respective properties, except for such
noncompliances as are not in the aggregate reasonably likely to
have a material adverse effect on the financial condition or
results of operations of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.08. SEC Reports.
-----------
(a) Upon consummation of the Exchange Offer and the
issuance of the Exchange Notes, the Company (at its own
expense) shall file with the SEC and shall file with the
Trustee within 15 days after it files them with the SEC copies
of the quarterly and annual reports and of the information,
documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations
prescribe) to be filed pursuant to Section 13 or 15(d) of the
Exchange Act (without regard to whether the Company is subject
to the requirements of such Section 13 or 15(d) of the Exchange
Act); provided that prior to the consummation of the Exchange
--------
Offer and the issuance of the Exchange Notes, the Company (at
its own expense) will mail to the Trustee and Holders in
accordance with paragraph (b) of this Section 4.08
substantially the same information that would have been
required by the foregoing documents within 15 days of when any
such document would otherwise have been required to be filed
with the SEC. Upon qualification of this Indenture under the
TIA, the Company shall also comply with the provisions of TIA
(S) 314(a).
(b) At the Company's expense, the Company shall
cause an annual report if furnished by it to stockholders
generally and each quarterly or other financial report if
furnished by it to stockholders generally to be filed with the
Trustee and mailed to the Holders at their addresses appearing
in the register of Notes maintained by the Registrar at the
time of such mailing or furnishing to stockholders.
(c) The Company shall provide to any Holder any
information reasonably requested by such Holder concerning the
-54-
Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in compliance with
Rule 144A under the Securities Act.
SECTION 4.09. Waiver of Stay, Extension
or Usury Laws.
-------------------------
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants
or the performance of this Indenture; and (to the extent that
it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital
Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock,
(b) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such
Capital Stock, or (c) make any Restricted Investment (each of
the foregoing actions set forth in clauses (a), (b) and (c)
being referred to as a "Restricted Payment"), if at the time of
such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default shall have
occurred and be continuing, (ii) the Company is not able to
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12, or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date shall exceed the sum of: (w) 50%
of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such
loss) of the Company earned subsequent to the Issue Date and on
or prior to the date the Restricted Payment occurs (the
"Reference Date") (treating such period as
-55-
a single accounting period); plus (x) 100% of the aggregate
net proceeds received by the Company (including the fair
market value of property other than cash) from any Person
(other than a Subsidiary of the Company) from the issuance
and sale subsequent to the Issue Date and on or prior to
the Reference Date of Qualified Capital Stock of the Company
(including Capital Stock issued upon the conversion of
convertible Indebtedness or in exchange for outstanding
Indebtedness); plus (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate
net proceeds (including the fair market value of property
other than cash) of any equity contribution received by
the Company from a holder of the Company's Capital Stock
(excluding any net proceeds from an Equity Offering to the
extent used to redeem Notes in accordance with the optional
redemption provisions of the Notes other than in connection
with an Equity Offering pursuant to a registration statement
filed with the SEC in accordance with the Securities Act); plus
(z) 100% of the aggregate net proceeds (including the fair
market value of property other than cash) of any (i) sale or
other disposition of Restricted Investments made by the Company
and its Restricted Subsidiaries or (ii) dividend from, or the
sale of the stock of, an Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set
forth in the immediately preceding paragraph do not prohibit:
(1) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of
declaration of such dividend or notice of such redemption if
the dividend or payment of the redemption price, as the case
may be, would have been permitted on the date of declaration or
notice; (2) if no Event of Default shall have occurred and be
continuing as a consequence thereof, the acquisition of any
shares of Capital Stock of the Company (the "Retired Capital
Stock"), either (i) solely in exchange for shares of Qualified
Capital Stock (the "Refunding Capital Stock"), or (ii) through
the application of net proceeds of a substantially concurrent
sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company, and, in the
case of subclause (i) of this clause (2), if immediately prior
to the retirement of Retired Capital Stock the declaration and
payment of dividends thereon was permitted under clause (3) of
this paragraph, the declaration and payment of dividends on the
Refunding Capital Stock in an aggregate amount per year no
greater than the aggregate amount of dividends per annum that
was declarable and payable on such Retired Capital Stock
immediately prior to such retirement; provided that at the time
--------
of the declaration of any such dividends, no Default or Event of
-56-
Default shall have occurred and be continuing or would occur
as a consequence thereof; (3) if no Default or Event of Default
shall have occurred and be continuing or would occur as a
consequence thereof, the declaration and payment of dividends
to holders of any class or series of Designated Preferred Stock
(other than Disqualified Capital Stock) issued after the Issue
Date (including, without limitation, the declaration and
payment of dividends on Refunding Capital Stock in excess of
the dividends declarable and payable thereon pursuant to clause
(2)); provided that, at the time of such issuance, the Company,
--------
after giving effect to such issuance on a pro forma basis,
would have had a Consolidated Fixed Charge Coverage Ratio of at
least 2.0 to 1.0; (4) payments for the purpose of and in an
amount equal to the amount required to permit Holdings to
redeem or repurchase Holdings' common equity or options in
respect thereof, in each case in connection with the repurchase
provisions under employee stock option or stock purchase
agreements or other agreements to compensate management
employees; provided that such redemptions or repurchases
--------
pursuant to this clause (4) shall not exceed $7.5 million
(which amount shall be increased (A) to $15.0 million upon
consummation of an Initial Public Offering and (B) by the
amount of any proceeds to the Company from (x) sales of Capital
Stock of Holdings to management employees subsequent to the
Issue Date and (y) any "key-man" life insurance policies which
are used to make such redemptions or repurchases) in the
aggregate; provided, further, that the cancellation of
-------- -------
Indebtedness owing to the Company from members of management of
the Company or any of its Restricted Subsidiaries in connection
with a repurchase of Capital Stock of Holdings will not be
deemed to constitute a Restricted Payment under the Indenture;
(5) the making of distributions, loans or advances in an amount
not to exceed $1.5 million per annum sufficient to permit
--- -----
Holdings to pay the ordinary operating expenses of Holdings
(including, without limitation, directors' fees,
indemnification obligations, professional fees and expenses)
related to Holdings' ownership of Capital Stock of the Company
(other than to the Principals or their Related Parties);
(6) the payment of any amounts pursuant to the Tax Allocation
Agreement; (7) the making of distributions, loans or advances
in an amount not to exceed $2.0 million per annum sufficient to
--- -----
permit Holdings to pay the salaries or other compensation of
employees who perform services for both Holdings and the
Company; (8) so long as no Default or Event of Default shall
have occurred and be continuing, payments to Holdings not to
exceed $100,000 in the aggregate, to enable Holdings to make
payments to holders of its Capital Stock in lieu of issuance of
fractional shares of its Capital
-57-
Stock; (9) so long as no Default or Event of Default
shall have occurred and be continuing, payments to, or on
behalf of, Holdings not to exceed an aggregate amount of
$10.0 million plus the amount of all capitalized or
accrued interest on the 10% Exchangeable Preferred Stock
of Holdings (the "Holdings Preferred Stock") solely to
purchase, redeem or otherwise retire some or all the
Holdings Preferred Stock which was issued to Baxter
International, Inc. and/or its affiliates in connection
with the acquisition of the Company from Baxter
International, Inc. in 1994 or any notes (including
interest thereon) of Holdings issued in exchange for the
Holdings Preferred Stock in accordance with the terms of
the Holdings Preferred Stock as in effect on the Issue
Date; (10) if no Default or Event of Default shall have
occurred and be continuing or would occur as a
consequence thereof and the Company would be permitted to
incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section
4.12, other Restricted Payments in an aggregate amount
not to exceed $12.0 million; and (11) repurchases of
Capital Stock deemed to occur upon the exercise of stock
options if such Capital Stock represents a portion of the
exercise price thereof. In determining the aggregate
amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the
immediately preceding paragraph, (a) amounts expended (to
the extent such expenditure is in the form of cash)
pursuant to clauses (1), (2), (4), (9) and (10) shall be
included in such calculation; provided such expenditures
--------
pursuant to clause (4) shall not be included to the
extent of cash proceeds received by the Company from any
"key man" life insurance policies and (b) amounts
expended pursuant to clauses (3), (5), (6), (7), (8) or
(11) shall be excluded from the such calculation.
SECTION 4.11. Limitation on Transactions
with Affiliates.
--------------------------
(a) The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction or series of
related transactions (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of
its Affiliates involving aggregate consideration in excess of
$1.0 million (an "Affiliate Transaction"), other than (x)
Affiliate Transactions permitted under paragraph (b) below and
(y) Affiliate Transactions on terms that are not materially
less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-
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length basis from a Person that is not an Affiliate; provided,
--------
however, that for a transaction or series of related
- -------
transactions with an aggregate value of $7.5 million or more,
at the Company's option (i) such determination shall be made in
good faith by a majority of the disinterested members of the
Board of the Directors of the Company or (ii) the Board of
Directors of the Company or any such Restricted Subsidiary
party to such Affiliate Transaction shall have received an
opinion from a nationally recognized investment banking firm
that such Affiliate Transaction is on terms not materially less
favorable than those that might reasonably have been obtained
in a comparable transaction at such time on an arm's-length
basis from a Person that is not an Affiliate; and provided,
--------
further, that for a transaction or series of related
- -------
transactions with an aggregate value of $10.0 million or more,
the Board of Directors of the Company or any such Restricted
Subsidiary party to such Affiliate Transaction shall have
received an opinion from a nationally recognized investment
banking firm that such Affiliate Transaction is on terms not
materially less favorable than those that might reasonably have
been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate.
(b) The foregoing restrictions shall not apply to
(i) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or
consultants of the Company or any Subsidiary as determined in
good faith by the Company's Board of Directors or senior
management; (ii) transactions exclusively between or among the
Company and any of its Restricted Subsidiaries or exclusively
between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by the Indenture;
(iii) transactions effected as part of a Qualified
Securitization Transaction; (iv) any agreement as in effect as
of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment
thereto) in any replacement agreement thereto so long as any
such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the
original agreement as in effect on the Issue Date;
(v) Restricted Payments permitted by this Indenture; (vi) the
payment of customary annual management, consulting and advisory
fees and related expenses to the Principals and their
Affiliates; (vii) payments by the Company or any of its
Restricted Subsidiaries to the Principals and their Affiliates
made pursuant to any financial advisory, financing,
underwriting or placement agreement or in respect of other
investment banking activities, including, without
-59-
limitation, in connection with acquisitions or divestitures
which are approved by the Board of Directors of the Company or
such Restricted Subsidiary in good faith; (viii) payments or
loans to employees or consultants which are approved by the
Board of Directors of the Company in good faith; (ix) the
existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of,
any stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it
is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; provided, however, that
-------- -------
the existence of, or the performance by the Company or any of
its Restricted Subsidiaries of obligations under, any future
amendment to any such existing agreement or under any similar
agreement entered into after the Issue Date shall only be
permitted by this clause (ix) to the extent that the terms of
any such amendment or new agreement are not otherwise
disadvantageous to the Holders of the Notes in any material
respect; (x) transactions permitted by, and complying with,
the provisions of Section 5.01; and (xi) transactions with
customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods or services, in each case in
the ordinary course of business (including, without
limitation, pursuant to joint venture agreements) and
otherwise in compliance with the terms of the Indenture which
are fair to the Company or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at
such time from an unaffiliated party.
SECTION 4.12. Limitation on Incurrence
of Additional Indebtedness.
--------------------------
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume, guarantee, acquire, become liable, contingently
or otherwise, with respect to, or otherwise become responsible
for payment of (collectively, "incur") any Indebtedness (other
than Permitted Indebtedness); provided, however, that if no
-------- -------
Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of
any such Indebtedness, the Company may incur Indebtedness if on
the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof, the Consolidated Fixed Charge
Coverage Ratio of the Company is greater than 2.0 to 1.0.
-60-
SECTION 4.13. Limitation on Dividend and
Other Payment Restrictions
Affecting Subsidiaries.
--------------------------
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual restriction on the ability
of any Restricted Subsidiary to (a) pay dividends or make any
other distributions on or in respect of its Capital Stock;
(b) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted
Subsidiary of the Company; or (c) transfer any of its property
or assets to the Company or any other Restricted Subsidiary of
the Company, except for such encumbrances or restrictions
existing under or by reason of: (1) applicable law; (2) this
Indenture; (3) non-assignment provisions of any contract or any
lease entered into in the ordinary course of business; (4) any
instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or
the properties or assets of the Person so acquired; (5)
agreements existing on the Issue Date (including, without
limitation, the Bank Credit Agreement and the indenture
governing the Existing Notes); (6) restrictions on the transfer
of assets subject to any Lien permitted under this Indenture
imposed by the holder of such Lien; (7) restrictions imposed by
any agreement to sell assets or Capital Stock permitted under
this Indenture to any Person pending the closing of such sale;
(8) any agreement or instrument governing Capital Stock of any
Person that is acquired; (9) Indebtedness or other contractual
requirements of a Securitization Entity in connection with a
Qualified Securitization Transaction; provided that such
--------
restrictions apply only to such Securitization Entity; (10) any
agreement or instrument governing Indebtedness (whether or not
outstanding) of foreign Restricted Subsidiaries of the Company
incurred in reliance on clause (iii) of the definition of
Permitted Indebtedness; (11) other Indebtedness permitted to be
incurred subsequent to the Issue Date pursuant to Section 4.12;
provided that any such restrictions are ordinary and customary
- --------
with respect to the type of Indebtedness being incurred (under
the relevant circumstances); (12) restrictions on cash or other
deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; and (13) any
encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts,
instruments or
-61-
obligations referred to in clauses (1) through (12) above;
provided that such amendments, modifications, restatements,
renewals increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company's
Board of Directors, no more restrictive with respect to such
dividend and other payment restrictions than those contained in
the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
SECTION 4.14. Prohibition on Incurrence of
Senior Subordinated Debt.
----------------------------
The Company shall not incur or suffer to exist
Indebtedness that is senior in right of payment to the Notes
and subordinate in right of payment to any other Indebtedness
of the Company.
SECTION 4.15. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, the
Company shall make an offer to purchase all outstanding Notes
pursuant to the offer described in paragraph (b) below (the
"Change of Control Offer") at a purchase price equal to 101% of
the principal amount thereof plus accrued interest, if any, to
the date of purchase. Prior to the mailing of the notice
referred to below, but in any event within 30 days following
any Change of Control, the Company shall (i) repay in full and
terminate all commitments under Indebtedness under the Bank
Credit Agreement, and all other Senior Debt the terms of which
require repayment upon a Change of Control, or offer to repay
in full and terminate all commitments under all Indebtedness
under the Bank Credit Agreement and all other such Senior Debt
and to repay the Indebtedness owed to each lender which has
accepted such offer, or (ii) obtain the requisite consents
under the Bank Credit Agreement and all other Senior Debt to
permit the repurchase of the Notes as provided below. The
Company shall first comply with the covenant in the immediately
preceding sentence before it shall be required to repurchase
Notes pursuant to the provisions described in this
Section 4.15. The Company's failure to comply with the
immediately preceding sentence shall constitute an Event of
Default under Section 6.01(3) and not under Section 6.01(2).
(b) Within 30 days following the date upon which the
Change of Control occurred (the "Change of Control Date"), the
Company shall send, by first class mail, a notice to each
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Holder, with a copy to the Trustee, which notice shall govern
the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Change
of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes tendered
and not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be no
earlier than 30 days nor later than 45 days from the date
such notice is mailed, other than as may be required by
law) (the "Change of Control Payment Date"); provided that
--------
the Change of Control Payment Date for the Notes shall be
a date subsequent to any payment dates for the purchase or
other repayment of Senior Debt having similar provisions;
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant
to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount
of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to
have such Notes purchased;
(7) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered;
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provided that each Note purchased and each new Note issued
--------
shall be in an original principal amount of $1,000 or
integral multiples thereof; and
(8) the circumstances and relevant facts regarding
such Change of Control.
On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes so
tendered and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price plus accrued
interest, if any, and the Trustee shall promptly authenticate
and mail to such Holders new Notes equal in principal amount to
any unpurchased portion of the Notes surrendered. Any Notes
not so accepted shall be promptly mailed by the Company to the
Holder thereof. For purposes of this Section 4.15, the Trustee
shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes
pursuant to a Change of Control Offer shall be returned by the
Trustee to the Company.
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
Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with
the provisions under this Section 4.15, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
-------------------------
(a) The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) the Company or the applicable Restricted Subsidiary,
as the case may be, receives consideration at the time of such
Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good
-64-
faith by the Company's Board of Directors), (ii) at least 75%
of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be
cash or Cash Equivalents; provided that the amount of (a) any
liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any
such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Notes) that are assumed by the
transferee of any such assets, (b) any notes or other
obligations received by the Company or any such Restricted
Subsidiary from such transferee that are immediately converted
by the Company or such Restricted Subsidiary into cash (to the
extent of the cash received) and (c) any Designated Noncash
Consideration received by the Company or any of its Restricted
Subsidiaries in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (c) that is at
that time outstanding (including any Designated Noncash
Consideration applied pursuant to the third paragraph of this
covenant), not to exceed 10% of Total Assets at the time of the
receipt of such Designated Noncash Consideration (with the fair
market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect
to subsequent changes in value), shall be deemed to be cash for
the purposes of this provision or for purposes of the third
paragraph of this covenant, and (iii) upon the consummation of
an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating
to such Asset Sale within 365 days of receipt thereof either
(A) to prepay any Senior Debt and, in the case of any Senior
Debt under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit
facility, (B) to repurchase Existing Notes required to be
repurchased under the indenture governing the Existing Notes,
(C) to reinvest in Productive Assets, or (D) a combination of
prepayment, repurchase and investment permitted by the
foregoing clauses (iii)(A), (iii)(B) and (iii)(C). Pending the
final application of any such Net Cash Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce Indebtedness
under a revolving credit facility, if any, or otherwise invest
such Net Cash Proceeds in Cash Equivalents. On the 366th day
after an Asset Sale or such earlier date, if any, as the Board
of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such
Asset Sale as set forth in clauses (iii)(A), (iii)(B), (iii)(C)
or (iii)(D) of the next preceding sentence (each, a "Net
Proceeds Offer Trigger Date"), such aggregate amount of Net
Cash Proceeds which
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have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (iii)(A), (iii)(B),
(iii)(C) and (iii)(D) of the next preceding sentence (each a
"Net Proceeds Offer Amount") shall be applied by the Company or
such Restricted Subsidiary to make an offer to purchase (the
"Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment
Date") not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on
a pro rata basis that amount of Notes equal to the Net Proceeds
--- ----
Offer Amount at a price equal to 100% of the principal amount of
the Notes to be purchased, plus accrued interest thereon, if
any, to the date of purchase; provided, however, that if at any
-------- -------
time any non-cash consideration (including any Designated
Noncash Consideration) received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect
to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in
accordance with this covenant.
Notwithstanding the foregoing, if a Net Proceeds
Offer Amount is less than $10.0 million, the application of the
Net Cash Proceeds constituting such Net Proceeds Offer Amount to
a Net Proceeds Offer may be deferred until such time as such Net
Proceeds Offer Amount plus the aggregate amount of all Net
Proceeds Offer Amounts arising subsequent to the Net Proceeds
Offer Trigger Date relating to such initial Net Proceeds Offer
Amount from all Asset Sales by the Company and its Restricted
Subsidiaries aggregates at least $10.0 million, at which time the
Company or such Restricted Subsidiary shall apply all Net Cash
Proceeds constituting all Net Proceeds Offer Amounts that have
been so deferred to make a Net Proceeds Offer (the first date the
aggregate of all such deferred Net Proceeds Offer Amounts is
equal to $10.0 million or more shall be deemed to be a "Net
Proceeds Offer Trigger Date").
Notwithstanding the two immediately preceding paragraphs,
the Company and its Restricted Subsidiaries will be permitted to
consummate an Asset Sale without complying with such paragraphs
to the extent (i) at least 75% of the consideration for such
Asset Sale constitutes Productive Assets, cash, cash equivalents
and/or marketable securities (i.e., such securities which could
----
be sold for cash within 180 days of the acquisition thereof) and
(ii) such Asset Sale is for fair market value (as determined in
good faith by the Company's Board
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of Directors); provided that any consideration not constituting
--------
Productive Assets received by the Company or any of its
Restricted Subsidiaries in connection with any Asset Sale
permitted to be consummated under this paragraph shall be
subject to the provisions of the two preceding paragraphs.
Each Net Proceeds Offer will be mailed to the
record Holders as shown on the register of Holders within 25
days following the Net Proceeds Offer Trigger Date, with a copy
to the Trustee, and shall comply with the procedures set forth
in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in
part in integral multiples of $1,000 in exchange for cash. To
the extent Holders properly tender Notes in an amount exceeding
the Net Proceeds Offer Amount, Notes of tendering Holders will
be purchased on a pro rata basis (based on amounts tendered). A
--- ----
Net Proceeds Offer shall remain open for a period of 20 business
days or such longer period as may be required by law. To the
extent that the aggregate amount of Notes tendered pursuant to a
Net Proceeds Offer is less than the Net Proceeds Offer Amount,
the Company may use any remaining Net Proceeds Offer Amount for
general corporate purposes. Upon completion of any such Net
Proceeds Offer, the Net Proceeds Offer Amount shall be reset at
zero.
The Company will 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
Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with
the "Asset Sale" provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the
"Asset Sale" provisions of this Indenture by virtue thereof.
(b) Subject to the deferral of the Net Proceeds Offer
Trigger Date contained in the second paragraph of subsection (a)
above, each notice of a Net Proceeds Offer pursuant to this
Section 4.16 shall be mailed or caused to be mailed, by first
class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last
registered addresses as of a date within 15 days of the mailing
of such notice, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Net Proceeds Offer and
shall state the following terms:
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(1) that the Net Proceeds Offer is being made
pursuant to Section 4.16 and that all Notes tendered will be
accepted for payment; provided, however, that if the aggregate
--------- -------
principal amount of Notes tendered in a Net Proceeds Offer plus
accrued interest at the expiration of such offer exceeds the
aggregate amount of the Net Proceeds Offer, the Company shall
select the Notes to be purchased on a pro rata basis (with such
--- ----
adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000 or multiples thereof shall
be purchased);
(2) the purchase price (including the amount
of accrued interest) and the purchase date (which shall be 20
Business Days from the date of mailing of notice of such Net
Proceeds Offer, or such longer period as required by law) (the
"Proceeds Purchase Date"); provided that the Proceeds Purchase
--------
Date for the Notes shall be a date subsequent to any payment
dates for the purchase or other repayment of Senior Debt having
similar provisions;
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the
Net Proceeds Offer shall cease to accrue interest after the
Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to a Net Proceeds Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying
Agent at the address specified in the notice prior to the close
of business on the third Business Day prior to the Proceeds
Purchase Date;
(6) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than five
Business Days prior to the Proceeds Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and
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(7) that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount equal to
the unpurchased portion of the Notes surrendered; provided that
--------
each Note purchased and each new Note issued shall be in an
original principal amount of $1,000 or integral multiples
thereof;
On or before the Proceeds Purchase Date, the
Company shall (i) accept for payment Notes or portions thereof
tendered pursuant to the Net Proceeds Offer which are to be
purchased in accordance with item (b)(1) above, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes to be
purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price plus accrued
interest, if any. For purposes of this Section 4.16, the Trustee
shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes
pursuant to a Net Proceeds Offer shall be returned by the
Trustee to the Company.
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 purchase of
Notes pursuant to a Net Proceeds Offer. To the extent the
provisions of any securities laws or regulations conflict with
the provisions of this Indenture relating to a Net Proceeds
Offer, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached
its obligations relating to such Net Proceeds Offer by virtue
thereof.
SECTION 4.17. Limitation on Preferred
Stock of Subsidiaries.
-----------------------
The Company shall not permit any of its Restricted
Subsidiaries to issue any Preferred Stock (other than to the
Company or to a Wholly Owned Restricted Subsidiary of the
Company) or permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company,
other than Permitted Foreign Subsidiary Preferred Stock and
Permitted Domestic Subsidiary Preferred Stock.
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SECTION 4.18. Limitation on Liens.
-------------------
The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, create, incur, assume or
suffer to exist any Liens of any kind against or upon any of its
property or assets, or any proceeds therefrom, unless (i) in the
case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the
Notes are secured by a Lien on such property, assets or proceeds
that is senior in priority to such Liens and (ii) in all other
cases, the Notes are equally and ratably secured, except for (A)
Liens existing as of the Issue Date and any extensions, renewals
or replacements thereof; (B) Liens securing Senior Debt; (C)
Liens securing the Notes; (D) Liens of the Company or a Wholly
Owned Restricted Subsidiary on assets of any Subsidiary of the
Company; (E) Liens securing Indebtedness which is incurred to
refinance Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided,
--------
however, that such Liens do not extend to or cover any property
- -------
or assets of the Company or any of its Restricted Subsidiaries
not securing the Indebtedness so refinanced; and (F) Permitted
Liens.
SECTION 4.19. Limitation of Guarantees
by Subsidiaries.
------------------------
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner
become liable with respect to any Indebtedness of the Company or
any other Subsidiary (other than (A) Indebtedness and other
obligations under the Bank Credit Agreement, (B) Permitted
Indebtedness of a Restricted Subsidiary, (C) Indebtedness under
Currency Agreements in reliance on clause (vi) of the definition
of Permitted Indebtedness or (D) Interest Swap Obligations
incurred in reliance on clause (v) of the definition of
Permitted Indebtedness), unless, in any such case (a) such
Restricted Subsidiary executes and delivers a supplemental
indenture to the Indenture, providing a guarantee of payment of
the Notes by such Restricted Subsidiary (the "Guarantee") and
(b) (x) if any such assumption, guarantee or other liability of
such Restricted Subsidiary is provided in respect of Senior
Debt, the guarantee or other instrument provided by such
Restricted Subsidiary in respect of such Senior Debt may be
superior to the Guarantee pursuant to subordination provisions
no less favorable to the
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Holders of the Notes than those contained in the Indenture and
(y) if such assumption, guarantee or other liability of such
Restricted Subsidiary is provided in respect of Indebtedness
that is expressly subordinated to the Notes, the guarantee or
other instrument provided by such Restricted Subsidiary in
respect of such subordinated Indebtedness shall be subordinated
to the Guarantee pursuant to subordination provisions no less
favorable to the Holders of the Notes than those contained in
the Indenture.
Notwithstanding the foregoing, any such Guarantee
by a Restricted Subsidiary of the Notes shall provide by its
terms that it shall be automatically and unconditionally
released and discharged, without any further action required on
the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Restricted Subsidiary from its
liability in respect of the Indebtedness in connection with
which such Guarantee was executed and delivered pursuant to the
preceding paragraph; or (ii) any sale or other disposition (by
merger or otherwise) to any Person which is not a Restricted
Subsidiary of the Company, of all of the Company's Capital Stock
in, or all or substantially all of the assets of, such
Restricted Subsidiary; provided that (a) such sale or
--------
disposition of such Capital Stock or assets is otherwise in
compliance with the terms of the Indenture and (b) such
assumption, guarantee or other liability of such Restricted
Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
SECTION 4.20. Conduct of Business.
-------------------
The Company and its Restricted Subsidiaries shall
not engage in any businesses a majority of whose revenues are
not derived from the same or reasonably similar, ancillary or
related to, or a reasonable extension, development or expansion
of, the businesses in which the Company and its Restricted
Subsidiaries are engaged on the Issue Date.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation
and Sale of Assets.
---------------------
(a) The Company shall not, in a single transaction
or a series of related transactions, consolidate with or merge
with or into, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets to,
another Person or Persons or adopt a Plan of Liquidation unless:
(1) either (A) the Company shall be the survivor
of such merger or consolidation or (B) the surviving Person is a
corporation, partnership or trust organized and existing under
the laws of the United States, any state thereof or the District
of Columbia and such surviving Person shall expressly assume all
the obligations of the Company under the Notes and this
Indenture;
(2) immediately after giving effect to such
transaction (on a pro forma basis, including any Indebtedness
incurred or anticipated to be incurred in connection with such
transaction), the Company or the surviving Person is able to
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12; and
(3) immediately before and immediately after
giving effect to such transaction (including any Indebtedness
incurred or anticipated to be incurred in connection with the
transaction), no Default or Event of Default shall have occurred
and be continuing.
(b) For purposes of the foregoing, the transfer
(by lease, assignment, sale or otherwise, in a single
transaction or series of transactions) of all or substantially
all of the properties and assets of one or more Subsidiaries of
the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company,
shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company. Notwithstanding the
foregoing clauses (2) and (3), (a) any Restricted Subsidiary of
the Company may consolidate with, merge into or transfer all or
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part of its properties and assets to the Company and (b) the
Company may merge with an Affiliate incorporated solely for the
purpose of reincorporating the Company in another jurisdiction.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation, combination or merger or
any transfer of all or substantially all of the assets of the
Company in accordance with the foregoing, the surviving entity
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture and the
Notes with the same effect as if such surviving entity had been
named as such; provided that solely for purposes of computing
--------
amounts described in clause (iii) of the first paragraph of
Section 4.10, any such surviving entity to the Company shall
only be deemed to have succeeded to and be substituted for the
Company with respect to periods subsequent to the effective time
of such merger, consolidation, combination or transfer of
assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any
Notes when the same becomes due and payable and the Default
continues for a period of 30 days (whether or not such payment
shall be prohibited by Article Ten of this Indenture); or
(2) the Company fails to pay the principal on any
Notes when such principal becomes due and payable, at maturity,
upon redemption or otherwise (including the failure to make a
payment to purchase Notes tendered pursuant to a Change of
Control Offer or a Net Proceeds Offer) (whether or not such
payment shall be prohibited by Article Ten); or
(3) the Company defaults in the observance or
performance of any other covenant or agreement contained in this
Indenture and which default continues for a period of
-73-
30 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the
Trustee or the Holders of at least 25% of the outstanding
principal amount of the Notes; or
(4) the Company fails to pay at final stated
maturity (giving effect to any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted
Subsidiary (other than a Securitization Entity) of the Company,
and such failure continues for a period of 20 days or more, or
the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 20 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with
the principal amount of any other such Indebtedness in default
for failure to pay principal at final stated maturity or which
has been accelerated, in each case with respect to which the 20-
day period described above has passed, aggregates $20.0 million
or more at any time; or
(5) one or more judgments in an aggregate amount in
excess of $20.0 million shall have been rendered against the
Company or any of its Significant Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period
of 60 days after such judgment or judgments become final and non-
appealable; or
(6) the Company or any Significant Subsidiary
(A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry
of a judgment, decree or order for relief against it in an
involuntary case or proceeding under any Bankruptcy Law, (C)
consents to the appointment of a Custodian of it or for
substantially all of its property, (D) consents to or acquiesces
in the institution of a bankruptcy or an insolvency proceeding
against it, (E) makes a general assignment for the benefit of
its creditors, or (F) takes any corporate action to authorize or
effect any of the foregoing; or
(7) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the Company
or any Significant Subsidiary in an involuntary case or
proceeding under any Bankruptcy Law, which shall (A) approve as
properly filed a petition seeking
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reorganization, arrangement, adjustment or composition in
respect of the Company or any Significant Subsidiary, (B)
appoint a Custodian of the Company or any Significant Subsidiary
or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period
of 60 consecutive days.
Any Event of Default shall not be deemed to have occurred under
clause (4) or (5) until the Trustee shall have received written
notice from the Company or any of the Holders or unless a Trust
Officer shall have actual knowledge of such Event of Default.
SECTION 6.02. Acceleration.
------------
(a) If an Event of Default (other than an Event
of Default specified in Section 6.01(6) or (7) with respect to
the Company) occurs and is continuing and has not been waived
pursuant to Section 6.04, then the Trustee or the Holders of at
least 25% in principal amount of outstanding Notes may declare
the principal of and accrued interest on all the Notes to be due
and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the
same (i) shall become immediately due and payable or (ii) if
there are any amounts outstanding under the Bank Credit
Agreement, shall become due and payable upon the first to occur
of an acceleration under the Bank Credit Agreement or 5 business
days after receipt by the Company and the Representative under
the Bank Credit Agreement of such Acceleration Notice but only
if such Event of Default is then continuing. Upon any such
declaration, but subject to the immediately preceding sentence,
such amount shall be immediately due and payable.
(b) If an Event of Default specified in
Section 6.01(6) or (7) occurs with respect to the Company, all
unpaid principal and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and
---- -----
payable without any declaration or other act on the part of the
Trustee or any Noteholder.
(c) At any time after a declaration of acceleration
with respect to the Notes in accordance with Section 6.02(a),
the Holders of a majority in principal amount of the Notes may
rescind and cancel such declaration and its consequences (i) if
the rescission would not conflict with any judgment or decree,
(ii) if all existing Events of Default have been cured or
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waived except nonpayment of principal or interest that has
become due solely because of the acceleration, (iii) to the
extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of
acceleration, has been paid, (iv) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee
for its expenses, disbursements and advances and (v) in the
event of the cure or waiver of an Event of Default of the type
described in Section 6.01(6) or (7), the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel that
such Event of Default has been cured or waived. The holders of a
majority in principal amount of the Notes may waive any existing
Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal
of or interest on any Notes.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy by proceeding at law
or in equity to collect the payment of principal of or interest
on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Noteholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 2.09, 6.07 and 9.02, the Holders
of a majority in principal amount of the outstanding Notes by
notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment
of principal of or interest on any Note as specified in clauses
(1) and (2) of Section 6.01. When a Default or Event of
Default is waived, it is cured and ceases.
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SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on it, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01,
however, the Trustee may refuse to follow any direction that
the Trustee reasonably believes conflicts with any law or this
Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder, or that may
involve the Trustee in personal liability; provided that the
--------
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and provided
--------
further that this provision shall not affect the rights of the
- -------
Trustee set forth in Section 7.01(d).
SECTION 6.06. Limitation on Suits.
-------------------
A Noteholder may not pursue any remedy with respect
to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) Holders of at least 25% in principal amount of
the outstanding Notes make a written request to the
Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss,
liability or expense to be incurred in compliance with
such request;
(4) the Trustee does not comply with the request
within 45 days after receipt of the request and the offer
of satisfactory indemnity; and
(5) during such 45-day period the Holders of a
majority in principal amount of the outstanding Notes do
not give the Trustee a direction which, in the opinion of
the Trustee, is inconsistent with the request.
A Noteholder may not use this Indenture to prejudice
the rights of another Noteholder or to obtain a preference or
priority over such other Noteholder.
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SECTION 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of
principal of and interest on a Note, on or after the respective
due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or
interest specified in clause (1) or (2) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or
any other obligor on the Notes for the whole amount of
principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment
of such interest is lawful, interest on overdue installments of
interest at the rate set forth in Section 4.01 and such further
amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, taxes, disbursements and
advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relating to the
Company or any other obligor upon the Notes, any of their
respective creditors or any of their respective property and
shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any
such judicial proceedings is hereby authorized by each
Noteholder 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 Noteholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this
Section 6.09 shall be secured in accordance with the provisions
of Section 7.07
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hereunder. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property
pursuant to this Article Six, it shall pay out the money in the
following order:
First: to the Trustee for amounts due under
Section 7.07;
Second: if the Holders are forced to proceed against
the Company directly without the Trustee, to Holders for
their collection costs;
Third: to Holders for amounts due and unpaid on the
Notes for principal and interest, ratably, without
preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and
interest, respectively; and
Fourth: to the Company or any other obligor on the
Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may
fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as 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 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07, or a suit by a
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Holder or Holders of more than 10% in principal amount of the
outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(1) The Trustee need perform only those duties as
are specifically set forth in this Indenture and no
covenants or obligations shall be implied in this
Indenture against the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
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is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or 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 against such risk or
liability is not reasonably assured to it.
(e) Whether or not herein expressly provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.01.
(f) The Trustee shall not be liable for interest on
any money or assets received by it except as the Trustee may
agree in writing with the Company. Assets held in trust by the
Trustee need not be segregated from other assets except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may 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,
note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may consult with counsel and may require an Officers'
Certificate, an Opinion of Counsel or both, which shall
conform to Sections 11.04 and 11.05. The Trustee shall
not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
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(c) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or indirectly or by or through agents or
attorneys and the Trustee shall not be responsible for the
misconduct or negligence of any agent or attorney
appointed with due care.
(d) The Trustee shall not be liable for any action
that it takes or omits to take in good faith which it
reasonably believes to be authorized or within its rights
or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
notice, request, direction, consent, order, bond,
debenture, 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,
upon reasonable notice to the Company, to examine the
books, records, and premises of the Company, personally or
by agent or attorney and to consult with the officers and
representatives of the Company, including the Company's
accountants and attorneys.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request,
order or direction.
(g) The Trustee shall not be required to give any
bond or surety in respect of the performance of its powers
and duties hereunder.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal
with the Company, any Subsidiary of the Company, or their
respective Affiliates with the same rights it would have if it
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were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The recitals contained herein and in the Notes shall
be taken as statements of the Company and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this Indenture
or the Notes, and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture
or the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Noteholder notice of the uncured Default or Event
of Default within 90 days after such Default or Event of
Default occurs. Except in the case of a Default or an Event of
Default in payment of principal of, or interest on, any Note,
including an accelerated payment and the failure to make
payment on the Change of Control Payment Date pursuant to a
Change of Control Offer or on the Proceeds Purchase Date
pursuant to a Net Proceeds Offer and, except in the case of a
failure to comply with Article V hereof, the Trustee may
withhold the notice if and so long as its Board of Directors,
the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of
the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15, the Trustee shall,
to the extent that any of the events described in TIA (S) 313(a)
occurred within the previous twelve months, but not otherwise,
mail to each Noteholder a brief report dated as of such date
that complies with TIA (S) 313(a). The Trustee also shall comply
with TIA (S)(S) 313(b), (c) and (d).
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the
SEC and each stock exchange, if any, on which the Notes are
listed.
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The Company shall promptly notify the Trustee if the
Notes become listed on any stock exchange and the Trustee shall
comply with TIA (S) 313(d).
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable fees and expenses,
including out-of-pocket expenses incurred or made by it in
connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its
agents, employees, stockholders and directors and officers for,
and hold them harmless against, any loss, liability or expense
incurred by them except for such actions to the extent caused
by any negligence, bad faith or willful misconduct on their
part, arising out of or in connection with the administration
of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of their
rights, powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee
for which it may seek indemnity. At the Trustee's sole
discretion, the Company shall defend the claim and the Trustee
shall cooperate and may participate in the defense; provided
--------
that any settlement of a claim shall be approved in writing by
the Trustee. Alternatively, the Trustee may at its option have
separate counsel of its own choosing and the Company shall pay
the reasonable fees and expenses of such counsel; provided that
--------
the Company will not be required to pay such fees and expenses
if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with
such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its
written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Notes
on all assets or money held or collected by the Trustee, in its
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capacity as Trustee, except assets or money held in trust to
pay principal of or interest on particular Notes. The
Trustee's right to receive payment of any amounts due under
this Section 7.07 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Notes
may be subordinate to such other liability or indebtedness).
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(6) or (7)
occurs, such expenses and the compensation for such services
are intended to constitute expenses of administration under any
Bankruptcy Law; provided, however, that this shall not affect
-------- -------
the Trustee's rights as set forth in the preceding paragraph or
Section 6.10.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company.
The Holders of a majority in principal amount of the outstand-
ing Notes may remove the Trustee by so notifying the Company
and the Trustee and may appoint a successor Trustee. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall notify each Holder of such event and shall promptly
appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in
Section 7.07, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall
have all the rights,
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powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act
shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee;
provided that such corporation shall be otherwise qualified and
- --------
eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who
satisfies the requirement of TIA (S)(S) 310(a)(1), (2) and (5).
The Trustee (or, in the case of a corporation included in a
bank holding company system, the related bank holding company)
shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report
of condition. In addition, if the Trustee is a corporation
included in a bank holding company system, the Trustee,
independently of such bank holding company, shall meet the
capital requirements of TIA (S) 310(a)(2). The Trustee shall
comply with TIA (S) 310(b); provided, however, that there shall
-------- -------
be excluded from the operation of TIA (S) 310(b)(1) any indenture
or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company
are
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outstanding, if the requirements for such exclusion set
forth in TIA (S) 310(b)(1) are met. The provisions of TIA (S) 310
shall apply to the Company, as obligor of the Notes.
SECTION 7.11. Preferential Collection of
Claims Against Company.
--------------------------
The Trustee shall comply with TIA (S) 311(a), excluding
any creditor relationship listed in TIA (S) 311(b). A Trustee
who has resigned or been removed shall be subject to TIA
(S) 311(a) to the extent indicated therein. The provisions of
TIA (S) 311 shall apply to the Company, as obligor on the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the
Company's Obligations.
---------------------
The Company may terminate its obligations under the
Notes and this Indenture, except those obligations referred to
in the penultimate paragraph of this Section 8.01, if all Notes
previously authenticated and delivered (other than destroyed,
lost or stolen Notes which have been replaced or paid or Notes
for whose payment U.S. Legal Tender has theretofore been
deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the
Company shall have given notice to the Trustee and mailed
a notice of redemption to each Holder of the redemption of
all of the Notes under arrangements satisfactory to the
Trustee for the giving of such notice or (ii) all Notes
have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee
satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Holders for that purpose,
U.S. Legal Tender
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in such amount as is sufficient without consideration of
reinvestment of such interest, to pay principal of, premium, if
any, and interest on the outstanding Notes to maturity or
redemption; provided that the Trustee shall have been irrevocably
--------
instructed to apply such U.S. Legal Tender to the payment of said
principal, premium, if any, and interest with respect to the Notes
and, provided, further, that from and after the time of deposit,
-------- -------
the money deposited shall not be subject to the rights of holders
of Senior Debt pursuant to the provisions of Article Ten;
(c) no Default or Event of Default with respect to
this Indenture or the Notes 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 it is bound;
(d) the Company shall have paid all other sums
payable by it hereunder; and
(e) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent providing for the
termination of the Company's obligations under the Notes
and this Indenture have been complied with. Such Opinion
of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Bank
Credit Agreement (if then in effect) or any other
agreement or instrument then known to such counsel that
binds or affects the Company.
Notwithstanding the foregoing paragraph, the
Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01,
4.02, 7.07, 8.05 and 8.06 shall survive until the Notes are no
longer outstanding pursuant to the last paragraph of Section
2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Notes and this Indenture
except for those surviving obligations specified above.
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SECTION 8.02. Legal Defeasance and
Covenant Defeasance.
-------------------
(a) The Company may, at its option by Board
Resolution of the Board of Directors of the Company, at any
time, elect to have either paragraph (b) or (c) below be
applied to all outstanding Notes upon compliance with the
conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (b), the
Company shall, subject to the satisfaction of the conditions
set forth in Section 8.03, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on
the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.04 hereof and
the other Sections of this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations
under such Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper
instruments acknowledging the same), and Holders of the Notes
and any amounts deposited under Section 8.03 hereof shall cease
to be subject to any obligations to, or the rights of, any
holder of Senior Debt under Article Ten or otherwise, except
for the following provisions, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal
of and interest on such Notes when such payments are due, (ii)
the Company's obligations with respect to such Notes under
Article Two and Section 4.02 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (iv) this
Article Eight. Subject to compliance with this Article Eight,
the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under
paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), the
Company shall, subject to the satisfaction of the conditions
set forth in Section 8.03 hereof, be released from its
obligations under the covenants contained in Sections 4.10
through 4.20 and
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Article Five hereof with respect to the outstanding Notes on and
after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all
other purposes hereunder (it being understood that such Notes
shall not be deemed outstanding for accounting purposes) and
Holders of the Notes and any amounts deposited under Section
8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or
otherwise. For this purpose, such Covenant Defeasance means
that, with respect to the outstanding Notes, 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
covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not
constitute a Default or an Event or Default under Section
6.01(3) hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under paragraph (a) hereof
of the option applicable to this paragraph (c), subject to the
satisfaction of the conditions set forth in Section 8.03 hereof,
Sections 6.01(3), 6.01(4) and 6.01(5) shall not constitute
Events of Default.
SECTION 8.03. Conditions to Legal Defeasance
or Covenant Defeasance.
------------------------------
The following shall be the conditions to the
application of either Section 8.02(b) or 8.02(c) hereof to the
outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, U.S.
Legal Tender or U.S. Government Obligations, or a
combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of
and interest on the Notes on the stated date for payment
thereof or on the applicable redemption date, as the case
may be, of
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such principal or installment of principal of or
interest on the Notes; provided that the Trustee shall
--------
have received an irrevocable written order from the
Company instructing the Trustee to apply such U.S. Legal
Tender or the proceeds of such U.S. Government Obligations
to said payments with respect to the Notes;
(b) in the case of an election under Section 8.02(b)
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Notes will not recognize income,
gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.02(c)
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of
the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default or event which
with notice or lapse of time or both would become a
Default or an Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to defease
the Notes pursuant to this Article Eight concurrently with
such incurrence) or insofar as Sections 6.01(6) and
6.01(7) hereof are concerned, at any time in the period
ending on the 91st day after the date of such deposit;
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(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of or constitute
a default under this Indenture or any other material
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;
(f) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company;
(g) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that (i) the trust
funds will not be subject to any rights of any holders of
Indebtedness of the Company other than the Notes, and
(ii) assuming no intervening bankruptcy or insolvency of
the Company between the date of deposit and the 91st day
following the deposit and that no Holder is an insider of
the Company, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any
applicable Bankruptcy Law.
SECTION 8.04. Application of Trust Money.
--------------------------
The Trustee or Paying Agent shall hold in trust U.S.
Legal Tender or U.S. Government Obligations deposited with it
pursuant to Article Eight, and shall apply the deposited U.S.
Legal Tender and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of
and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government
Obligations except as it may agree with the Company.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Legal Tender or U.S. Government Obligations
deposited pursuant to Section 8.03 hereof or the principal and
interest received in respect thereof other than any such tax,
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fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the Company's request any
U.S. Legal Tender or U. S. Government Obligations held by it as
provided in Section 8.03 hereof 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 that would then be
required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.05. Repayment to the Company.
------------------------
Subject to Article Eight, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess
U.S. Legal Tender or U.S. Government Obligations held by them
at any time and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed
for two years; provided that the Trustee or such Paying Agent,
--------
before being required to make any payment, may at the expense
of the Company cause to be published once in a newspaper of
general circulation in the City of New York or mail to each
Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall
be at least 30 days from the date of such publication or
mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company,
Noteholders entitled to such money must look to the Company for
payment as general creditors unless an applicable law
designates another Person.
SECTION 8.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any
U.S. Legal Tender or U.S. Government Obligations in accordance
with Article Eight by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Article Eight until such time as the
Trustee or Paying Agent is permitted to apply all such U.S.
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Legal Tender or U.S. Government Obligations in accordance with
Article Eight; provided that if the Company has made any
--------
payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution,
and the Trustee, together, may amend or supplement this
Indenture or the Notes without notice to or consent of any
Noteholder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not, in
--------
the opinion of the Trustee, adversely affect the rights of
any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(4) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
(5) to make any change that would provide any
additional benefit or rights to the Noteholders or that
does not adversely affect the rights of any Noteholder;
(6) to provide for issuance of the Exchange Notes,
which will have terms substantially identical in all
material respects to the Initial Notes (except that the
transfer restrictions contained in the Initial Notes will
be modified or eliminated, as appropriate), and which will
be treated together with any outstanding Initial Notes, as
a single issue of securities; or
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(7) to make any other change that does not, in the
opinion of the Trustee, adversely affect in any material
respect the rights of any Noteholders hereunder;
provided that the Company has delivered to the Trustee an
- --------
Opinion of Counsel stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
-----------------------
Subject to Section 6.07, the Company, when authorized
by a Board Resolution, and the Trustee, together, with the
written consent of the Holder or Holders of at least a majority
in aggregate principal amount of the outstanding Notes, may
amend or supplement this Indenture or the Notes, without notice
to any other Noteholders. Subject to Section 6.07, the Holder
or Holders of a majority in aggregate principal amount of the
outstanding Notes may waive compliance by the Company with any
provision of this Indenture or the Notes without notice to any
other Noteholder. No amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, shall, without the
consent of each Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must
consent to an amendment;
(2) reduce the rate of or change or have the effect
of changing the time for payment of interest, including
defaulted interest, on any Notes;
(3) reduce the principal of or change or have the
effect of changing the fixed maturity of any Notes, or
change the date on which any Notes may be subject to
redemption or repurchase, or reduce the redemption or
repurchase price therefor;
(4) make any Notes payable in money other than that
stated in the Notes;
(5) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of
principal of and interest on such Note on or after the due
date thereof or to bring suit to enforce such payment,
permitting holders of a majority in principal amount of
Notes to waive Defaults or Events of Default, other than
ones with respect to the payment of principal of or
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interest on the Notes, or relating to certain amendments
of this Indenture;
(6) amend, modify or change in any material respect
the obligation of the Company to make or consummate a
Change of Control Offer in the event of a Change of
Control or make and consummate a Net Proceeds Offer in
respect of any Asset Sale that has been consummated or
modify any of the provisions or definitions with respect
thereto after a Change of Control has occurred or the
subject Asset Sale has been consummated; or
(7) modify Article Ten or the definitions used in
Article Ten to adversely affect the Holders of the Notes
in any material respect.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. Effect on Senior Debt.
---------------------
No amendment of this Indenture shall adversely affect
the rights of any holder of Senior Debt under Article Ten of
this Indenture, without the consent of such holder.
SECTION 9.04. Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this
Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.05. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Note or portion
of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on
any
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Note. Subject to the following paragraph, any such Holder
or subsequent Holder may revoke the consent as to such Holder's
Note or portion of such Note by notice to the Trustee or the
Company received before the date on which the Trustee receives
an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement
or waiver.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver, which record
date shall be at least 30 days prior to the first solicitation
of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date
(or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given,
whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Noteholder, unless it makes a
change described in any of clauses (1) through (7) of Section
9.02, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note;
provided that any such waiver shall not impair or affect the
- --------
right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of
any such payment on or after such respective dates without the
consent of such Holder.
SECTION 9.06. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement or waiver changes the
terms of a Note, the Trustee may require the Holder of the Note
to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that
reflects the changed terms. Any such notation or exchange
shall be made at the sole cost and expense of the Company.
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SECTION 9.07. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement
or waiver authorized pursuant to this Article Nine; provided
--------
that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this
Article Nine is authorized or permitted by this Indenture.
Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt.
---------------------------------
The Company covenants and agrees, and the Trustee and
each Holder of the Notes, by its acceptance thereof, likewise
covenants and agrees, that all Notes shall be issued subject to
the provisions of this Article Ten; and the Trustee and each
Person holding any Note, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees
that the payment of all Obligations on the Notes by the Company
shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior
payment in full in cash or Cash Equivalents of all Obligations
on the Senior Debt; that the subordination is for the benefit
of, and shall be enforceable directly by, the holders of Senior
Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or
guaranteed shall be deemed to have acquired Senior Debt in
reliance upon the covenants and provisions contained in this
Indenture and the Notes.
SECTION 10.02. No Payment on Notes in
Certain Circumstances.
----------------------
(a) If any default occurs and is continuing in the
payment when due, whether at maturity, upon redemption, by
declaration or otherwise, of any principal of, interest on,
unpaid drawings for letters of credit issued in respect of, or
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regularly accruing fees with respect to, any Senior Debt, no
payment of any kind or character shall be made by, or on behalf
of, the Company or any other Person on its or their behalf with
respect to any Obligations on the Notes, or to acquire any of
the Notes for cash or property or otherwise. In addition, if
any other event of default occurs and is continuing with
respect to any Designated Senior Debt, as such event of default
is defined in the instrument creating or evidencing such
Designated Senior Debt, permitting the holders of such
Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective
issue of Designated Senior Debt gives notice of the event of
default to the Trustee (a "Default Notice"), then, unless and
until all events of default have been cured or waived or have
ceased to exist or the Trustee receives notice thereof from the
Representative for the respective issue of Designated Senior
Debt terminating the Blockage Period (as defined below), during
the 180 days after the delivery of such Default Notice (the
"Blockage Period"), neither the Company nor any other Person on
its behalf shall (x) make any payment of any kind or character
with respect to any Obligations on the Notes or (y) acquire any
of the Notes for cash or property or otherwise.
Notwithstanding anything herein to the contrary, in no event
will a Blockage Period extend beyond 180 days from the date the
payment on the Notes was due and only one such Blockage Period
may be commenced within any 360 consecutive days. No event of
default which existed or was continuing on the date of the
commencement of any Blockage Period with respect to the
Designated Senior Debt shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative
of such Designated Senior Debt whether or not within a period
of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period
commencing after the date of commencement of such Blockage
Period that, in either case, would give rise to an event of
default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a
new event of default for this purpose).
(b) In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee or any
Holder when such payment is prohibited by Section 10.02(a),
such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt
(pro rata to such holders on the basis of the respective amount
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of Senior Debt held by such holders) or their respective
Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding
amounts then due and owing on the Senior Debt, if any, received
from the holders of Senior Debt (or their Representatives) or,
if such information is not received from such holders or their
Representatives, from the Company and only amounts included in
the information provided to the Trustee shall be paid to the
holders of Senior Debt.
Nothing contained in this Article Ten shall limit the
right of the Trustee or the Holders of Notes to take any action
to accelerate the maturity of the Notes pursuant to
Section 6.02 or to pursue any rights or remedies hereunder;
provided that all Senior Debt thereafter due or declared to be
- --------
due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment of any
kind or character with respect to Obligations on the Notes.
SECTION 10.03. Payment Over of Proceeds
upon Dissolution, Etc.
------------------------
(a) Upon any payment or distribution of assets of
the Company of any kind or character, whether in cash, property
or securities, to creditors upon any total or partial
liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets
of the Company or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to the
Company or its property, whether voluntary or involuntary, all
Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of
Senior Debt, before any payment or distribution of any kind or
character is made on account of any Obligations on the Notes,
or for the acquisition of any of the Notes for cash or property
or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar
proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Notes or the Trustee
under this Indenture would be entitled, except for the
provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by
them, directly to the holders of Senior Debt (pro rata to such
holders on the basis of the respective amounts of Senior Debt
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held by such holders) or their respective Representatives, or
to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment
of Senior Debt remaining unpaid until all such Senior Debt has
been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment, distribution or provision
therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt
(whether by or on behalf of the Company, as proceeds of
security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then, if such payment is recovered by, or paid
over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to
be reinstated and outstanding as if such payment had not
occurred.
(c) In the event that, notwithstanding the
foregoing, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or
securities, shall be received by any Holder when such payment
or distribution is prohibited by Section 10.03(a), such payment
or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt
(pro rata to such holders on the basis of the respective amount
of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid
until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the
holders of such Senior Debt.
(d) The consolidation of the Company with, or the
merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its
assets, to another corporation upon the terms and conditions
provided in Article Five hereof and as long as permitted under
the terms of the Senior Debt shall not be deemed a dissolution,
winding-up,
-101-
liquidation or reorganization for the purposes of
this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article Five
hereof.
SECTION 10.04. Payments May Be Paid Prior
to Dissolution.
--------------------------
Nothing contained in this Article Ten or elsewhere in
this Indenture shall prevent (i) the Company, except under the
conditions described in Sections 10.02 and 10.03, from making
payments at any time for the purpose of making payments of
principal of and interest on the Notes, or from depositing with
the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment
would be prohibited by Section 10.02 or 10.03, the application
by the Trustee of any moneys deposited with it for the purpose
of making such payments of principal of, and interest on, the
Notes to the Holders entitled thereto unless at least two
Business Days prior to the date upon which such payment would
otherwise become due and payable a Trust Officer shall have
actually received the written notice provided for in the second
sentence of Section 10.02(a) or in Section 10.07 (provided
--------
that, notwithstanding the foregoing, such application shall
otherwise be subject to the provisions of the first sentence of
Section 10.02(a) and Section 10.03). The Company shall give
prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
SECTION 10.05. Subrogation.
-----------
Subject to the payment in full in cash or Cash
Equivalents of all Senior Debt, the Holders of the Notes shall
be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until
the Notes shall be paid in full; and, for the purposes of such
subrogation, no such payments or distributions to the holders
of the Senior Debt by or on behalf of the Company or by or on
behalf of the Holders by virtue of this Article Ten which
otherwise would have been made to the Holders shall, as between
the Company and the Holders of the Notes, be deemed to be a
payment by the Company to or on account of the Senior Debt, it
being understood that the provisions of this Article Ten are
and are intended solely for the purpose of defining the
relative rights of the Holders of the Notes, on the one hand,
and the holders of the Senior Debt, on the other hand.
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SECTION 10.06. Obligations of the Company
Unconditional.
--------------------------
Nothing contained in this Article Ten or elsewhere in
this Indenture or in the Notes is intended to or shall impair,
as among the Company, its creditors other than the holders of
Senior Debt, and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent
the Holder of any Note or the Trustee on its behalf from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if
any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit
the making of any payment to or by the Trustee in respect of
the Notes pursuant to the provisions of this Article Ten.
Regardless of anything to the contrary contained in this
Article Ten or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Debt or of any
other facts which would prohibit the making of any payment to
or by the Trustee unless and until the Trustee shall have
received notice in writing from the Company, or from a holder
of Senior Debt or a Representative therefor, together with
proof satisfactory to the Trustee of such holding of Senior
Debt or of the authority of such Representative, and, prior to
the receipt of any such written notice, the Trustee shall be
entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist.
In the event that the Trustee determines in good
faith that any evidence is required with respect to the right
of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article Ten, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of
Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribu-
tion and any
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other facts pertinent to the rights of such Person
under this Article Ten, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to
receive such payment.
SECTION 10.08. Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject
to the provisions of Article Seven hereof, and the Holders of
the Notes shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up,
liquidation, reorganization or similar case or proceeding is
pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other person making such payment
or distribution, delivered to the Trustee or the Holders of the
Notes, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of the
Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee and any agent of the Company or the
Trustee shall be entitled to all the rights set forth in this
Article Ten with respect to any Senior Debt which may at any
time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Debt and nothing
in this Indenture shall deprive the Trustee or any such agent
of any of its rights as such holder.
With respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Ten, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice
given to holders or owners of Senior Debt, the distribution may
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be made and the notice may be given to their Representative, if
any.
SECTION 10.10. Subordination Rights Not Impaired
by Acts or Omissions of the Company
or Holders of Senior Debt.
-----------------------------------
No right of any present or future holders of any
Senior Debt to enforce subordination as provided herein shall
at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt may, at any
time and from time to time, without the consent of or notice to
the Trustee, without incurring responsibility to the Trustee or
the Holders of the Notes and without impairing or releasing the
subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the
Senior Debt, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Debt, or otherwise amend
or supplement in any manner Senior Debt, or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for
the payment or collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any
other Person.
SECTION 10.11. Noteholders Authorize Trustee To
Effectuate Subordination of Notes.
---------------------------------
Each Holder of Notes by its acceptance of them
authorizes and expressly directs the Trustee on its behalf to
take such action as may be necessary or appropriate to
effectuate, as between the holders of Senior Debt and the
Holders of Notes, the subordination provided in this Article
Ten, and appoints the Trustee its attorney-in-fact for such
purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or
-105-
upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its
Notes and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30
days before the expiration of the time to file such claim or
claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to
file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Notes. Nothing
herein contained shall be deemed to authorize the Trustee or
the holders of Senior Debt or their Representative to authorize
or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Debt or their
Representative to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 10.12. This Article Ten Not To
Prevent Events of Default.
-------------------------
The failure to make a payment on account of principal
of or interest on the Notes by reason of any provision of this
Article Ten will not be construed as preventing the occurrence
of an Event of Default.
SECTION 10.13. Trustee's Compensation
Not Prejudiced.
----------------------
Nothing in this Article Ten will apply to amounts due
to the Trustee pursuant to other sections in this Indenture.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required to be
-106-
included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices.
-------
Any notices or other communications required or
permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by
telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company:
Dade International Inc.
1717 Deerfield Road
Deerfield, IL 60015-0778
Facsimile No.: (847) 267-5396
Attn: Chief Financial Officer
if to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, NY 10004
Facsimile No.: (212) 858-2952
Attention: Corporate Trust Department
Each of the Company and the Trustee by written notice
to each other such Person may designate additional or different
addresses for notices to such Person. Any notice or
communication to the Company or the Trustee shall be deemed to
have been given or made as of the date so delivered if
personally delivered; when answered back, if telexed; when
receipt is acknowledged, if faxed; and five (5) calendar days
after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Noteholder
shall be mailed to him by first class mail or other equivalent
means at his address as it appears on the registration books of
the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency
with respect to other Noteholders. If a notice or
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communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders
with Other Holders.
-------------------------
Noteholders may communicate pursuant to TIA { 312(b)
with other Noteholders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA
{ 312(c).
SECTION 11.04. Certificate and Opinion as
to Conditions Precedent.
--------------------------
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) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion
of the signers, all conditions precedent to be performed
by the Company, if any, provided for in this Indenture
relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent to
be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been
complied with.
SECTION 11.05. Statements Required in
Certificate or Opinion.
----------------------
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture, other than the Officers' Certificate required by
Section 4.06, shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition
and the definitions relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
-108-
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is
reasonably necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
SECTION 11.06. Rules by Trustee, Paying
Agent, Registrar.
------------------------
The Trustee may make reasonable rules in accordance
with the Trustee's customary practices for action by or at a
meeting of Noteholders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
--------------
A "Legal Holiday" used with respect to a particular
place of payment is a Saturday, a Sunday or a day on which
banking institutions in New York, New York or at such place of
payment are not required to be open. If a payment date is a
Legal Holiday at such place, payment may be made at such place
on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 11.09. No Adverse Interpretation
of Other Agreements.
-------------------------
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
-109-
Subsidiaries. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or
incorporator, as such, of the Company or of the Trustee shall
not have any liability for any obligations of the Company under
the Notes or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations.
Each Noteholder by accepting a Note waives and releases all
such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 11.11. Successors.
----------
All agreements of the Company in this Indenture and
the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
SECTION 11.13. Severability.
------------
In case any one or more of the provisions in this
Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any
way be affected or impaired thereby, it being intended that all
of the provisions hereof shall be enforceable to the full
extent permitted by law.
-110-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written
above.
Issuer:
DADE INTERNATIONAL INC.
By: /s/ John Connaughton
------------------------------------
Name: John Connaughton
Title: Vice President and Assistant
Secretary
Trustee:
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By: /s/ Nancy Besse
------------------------------------
Name: Nancy Besse
Title:
EXHIBIT A
---------
CUSIP No.:
DADE INTERNATIONAL INC.
11 1/8% SENIOR SUBORDINATED NOTE DUE 2006
No. $
DADE INTERNATIONAL INC., a Delaware corporation (the
"Company," which term includes any successor entity), for value
received promises to pay to or registered
assigns, the principal sum of Dollars, on May 1, 2006.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this
Note contained herein, which will for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
DADE INTERNATIONAL INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Dated: May 7, 1996 Title:
Certificate of Authentication
This is one of the 11 1/8% Senior Subordinated Notes
due 2006 referred to in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
Dated: May 7, 1996 By:
-----------------------------------
Authorized Signatory
A-1
(REVERSE OF SECURITY)
11 1/8% SENIOR SUBORDINATED NOTE DUE 2006
1. Interest. DADE INTERNATIONAL INC., a Delaware
--------
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown
above. Interest on the Notes will accrue from the most recent
date on which interest has been paid or, if no interest has
been paid, from May 7, 1996. The Company will pay interest
semi-annually in arrears on each Interest Payment Date,
commencing November 1, 1996. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal
and on overdue installments of interest from time to time on
demand at the rate borne by the Notes plus 2% per annum and on
overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay
-----------------
interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date.
Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and
interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal
and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, IBJ
--------------------------
Schroder Bank & Trust Company, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture. The Company issued the Notes under
---------
an Indenture, dated as of May 7, 1996 (the "Indenture"),
between the Company and the Trustee. This Note is one of a
duly authorized issue of Initial Notes of the Company
designated as its 11 1/8% Senior Subordinated Notes due 2006
(the "Initial Notes"). The Notes are limited in aggregate
principal amount to $350,000,000. The Notes include the
Initial Notes and the Exchange Notes, as defined below, issued
in exchange
A-2
for the Initial Notes pursuant to the Indenture. The Initial
Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined
herein. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code {{ 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to
the Indenture and said Act for a statement of them. The Notes
are general unsecured obligations of the Company.
5. Subordination. The Notes are subordinated in
-------------
right of payment, in the manner and to the extent set forth in
the Indenture, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by his acceptance
hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
6. Redemption.
----------
(a) Optional Redemption. The Notes will be
-------------------
redeemable, at the Company's option, in whole at any time or in
part from time to time, on and after May 1, 2001, upon not less
than 30 nor more than 60 days' notice, at the following
redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period
commencing on May 1 of the year set forth below, plus, in each
case, accrued interest to the date of redemption:
Year Percentage
- ---- ----------
2001..................................................... 105.563%
2002..................................................... 103.708
2003..................................................... 101.854
2004 and thereafter...................................... 100.000
(b) Optional Redemption Upon Equity Offerings. At
-----------------------------------------
any time, or from time to time, on or prior to May 1, 1999, the
Company may, at its option, use the net cash proceeds of one or
more Equity Offerings (as defined in the Indenture) to redeem
up to 40% (provided that such percentage shall decrease to 35%
if an Initial Public Offering (as defined in the Indenture) has
not been consummated on or prior to March 31, 1997 and any
A-3
other Notes previously redeemed pursuant to this provision
shall be included in determining such percentage) of the
aggregate principal amount of Notes originally issued at a
redemption price equal to 110% (111.125% in the case of any
Equity Offering after March 31, 1997) of the principal amount
thereof plus, in each case, accrued interest to the date of
redemption; provided that at least $175.0 million aggregate
--------
principal amount of Notes remains outstanding immediately after
any such redemption.
In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such
redemption not more than 120 days after the consummation of any
such Equity Offering.
7. Notice of Redemption. Notice of redemption will
--------------------
be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for
the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest
from and after such Redemption Date and the only right of the
Holders of such Notes will be to receive payment of the
Redemption Price plus accrued interest, if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of
------------------
the Indenture provide that, after certain Asset Sales (as
defined in the Indenture) and upon the occurrence of a Change
of Control (as defined in the Indenture), and subject to
further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance
with the procedures set forth in the Indenture.
9. Registration Rights. Pursuant to the
-------------------
Registration Rights Agreement among the Company and the Holders
of the Initial Notes, the Company will be obligated to
consummate an exchange offer pursuant to which the Holder of
this Note shall have the right to exchange this Note for the
Company's Series B 11 1/8% Senior Subordinated Notes due 2006
(the "Exchange Notes"), which have been registered under the
Securities Act, in like principal amount and having terms
identical in all material respects to the Initial Notes. The
Holders of the Initial Notes shall be entitled to receive
certain additional interest payments in the event such exchange
offer is not
A-4
consummated and upon certain other conditions, all pursuant to
and in accordance with the terms of the Registration Rights
Agreement.
10. Denominations; Transfer; Exchange. The Notes
---------------------------------
are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register
the transfer of or exchange of any Notes or portions thereof
selected for redemption.
11. Persons Deemed Owners. The registered Holder of
---------------------
a Note shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of
---------------
principal or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the
Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If
-----------------------------------------
the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the
principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Notes (including
certain covenants, but excluding its obligation to pay the
principal of and interest on the Notes).
14. Amendment; Supplement; Waiver. Subject to
-----------------------------
certain exceptions, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default
or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding. Without notice
to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things,
cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material
respect the rights of any Holder of a Note.
A-5
15. Restrictive Covenants. The Indenture imposes
---------------------
certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its
Capital Stock or certain Indebtedness, enter into transactions
with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries, merge or consolidate with any other
Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a
plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such
limitations.
16. Successors. When a successor assumes, in
----------
accordance with the Indenture, all the obligations of its
predecessor under the Notes and the Indenture, the predecessor
will be released from those obligations.
17. Defaults and Remedies. If an Event of Default
---------------------
occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable in
the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee is
not obligated to enforce the Indenture or the Notes unless it
has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount
of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest)
if it determines that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee
-----------------------------
under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No stockholder,
--------------------------
director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based
on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
A-6
20. Authentication. This Note shall not be valid
--------------
until the Trustee or Authenticating Agent manually signs the
certificate of authentication on this Note.
21. Governing Law. The Laws of the State of New
-------------
York shall govern this Note and the Indenture, without regard
to principles of conflict of laws.
22. Abbreviations and Defined Terms. Customary
-------------------------------
abbreviations may be used in the name of a Holder of a Note or
an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation
-------------
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed
on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Note,
---------
agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture,
which has the text of this Note in larger type. Requests may
be made to: Dade International Inc., 1717 Deerfield Road,
Deerfield, IL 60015-0778, Attn: Chief Financial Officer.
A-7
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in
the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________,
agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date: ___________________ Signed: ____________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ____________________________
In connection with any transfer of this Note
occurring prior to the date which is the earlier of (i) the
date of the declaration by the SEC of the effectiveness of a
registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note
(which effectiveness shall not have been suspended or
terminated at the date of the transfer) and (ii) May 7, 1999,
the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
A-8
[Check One]
---------
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that has furnished to the Trustee a
signed letter containing certain representations and
agreements (the form of which letter can be obtained
from the Trustee); or
(4) __ outside the United states to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) __ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act; or
(6) __ pursuant to an effective registration statement under
the Securities Act; or
(7) __ pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the
name of any person other than the registered Holder thereof;
provided that if box (3), (4), (5) or (7) is checked, the
- --------
Company or the Trustee may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal
opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Trustee or
the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of
the Securities Act.
A-9
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Note in the
name of any person other than the Holder hereof unless and
until the conditions to any such transfer of registration set
forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: __________________ Signed: ____________________________
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee: ___________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with
respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________ ____________________________
NOTICE: To be executed by
an executive officer
A-10
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.15 or Section
4.16 of the Indenture, state the amount you elect to have
purchased:
$___________________
Dated: __________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: ____________________________________
A-11
EXHIBIT B
---------
CUSIP No.:
DADE INTERNATIONAL INC.
SERIES B 11 1/8% SENIOR SUBORDINATED NOTE DUE 2006
No. $
DADE INTERNATIONAL INC., a Delaware corporation (the
"Company," which term includes any successor entity), for value
received promises to pay to or registered
assigns, the principal sum of Dollars, on May 1, 2006.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this
Note contained herein, which will for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
DADE INTERNATIONAL INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Dated: Title:
Certificate of Authentication
This is one of the Series B 11 1/8% Senior
Subordinated Notes due 2006 referred to in the within-mentioned
Indenture.
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
Dated: By:
-----------------------------------
Authorized Signatory
B-1
(REVERSE OF SECURITY)
SERIES B 11 1/8% SENIOR SUBORDINATED NOTE DUE 2006
1. Interest. DADE INTERNATIONAL INC., a Delaware
--------
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown
above. Interest on the Notes will accrue from the most recent
date on which interest has been paid or, if no interest has
been paid, from May 7, 1996. The Company will pay interest
semi-annually in arrears on each Interest Payment Date,
commencing November 1, 1996. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal
and on overdue installments of interest from time to time on
demand at the rate borne by the Notes plus 2% per annum and on
overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay
-----------------
interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date.
Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and
interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal
and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, IBJ
--------------------------
Schroder Bank & Trust Company, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture. The Company issued the Notes under
---------
an Indenture, dated as of May 7, 1996 (the "Indenture"),
between the Company and the Trustee. This Note is one of a
duly authorized issue of Exchange Notes of the Company
designated as its Series B 11 1/8% Senior Subordinated Notes
due 2006 (the "Exchange Notes"). The Notes are limited in
aggregate principal amount to $350,000,000. The Notes include
the Initial Notes (the 11 1/8% Senior Subordinated Notes due
2006)
B-2
and the Exchange Notes, issued in exchange for the
Initial Notes pursuant to the Indenture. The Initial Notes and
the Exchange Notes are treated as a single class of securities
under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The
terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code {{ 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to
the Indenture and said Act for a statement of them. The Notes
are general unsecured obligations of the Company.
5. Subordination. The Notes are subordinated in
-------------
right of payment, in the manner and to the extent set forth in
the Indenture, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by his acceptance
hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
6. Redemption.
----------
(a) Optional Redemption. The Notes will be
-------------------
redeemable, at the Company's option, in whole at any time or in
part from time to time, on and after May 1, 2001, upon not less
than 30 nor more than 60 days' notice, at the following
redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period
commencing on May 1 of the year set forth below, plus, in each
case, accrued interest to the date of redemption:
Year Percentage
- ---- ----------
2001..................................................... 105.563%
2002..................................................... 103.708
2003..................................................... 101.854
2004 and thereafter...................................... 100.000
(b) Optional Redemption Upon Equity Offerings. At
-----------------------------------------
any time, or from time to time, on or prior to May 1, 1999, the
Company may, at its option, use the net cash proceeds of one or
more Equity Offerings (as defined in the Indenture) to redeem
up to 40% (provided that such percentage shall decrease to 35%
if an Initial Public Offering (as defined in the Indenture) has
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not been consummated on or prior to March 31, 1997 and any
other Notes previously redeemed pursuant to this provision
shall be included in determining such percentage) of the
aggregate principal amount of Notes originally issued at a
redemption price equal to 110% (111.125% in the case of any
Equity Offering after March 31, 1997) of the principal amount
thereof plus, in each case, accrued interest to the date of
redemption; provided that at least $175.0 million aggregate
--------
principal amount of Notes remains outstanding immediately after
any such redemption.
In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such
redemption not more than 120 days after the consummation of any
such Equity Offering.
7. Notice of Redemption. Notice of redemption will
--------------------
be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for
the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest
from and after such Redemption Date and the only right of the
Holders of such Notes will be to receive payment of the
Redemption Price plus accrued interest, if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of
------------------
the Indenture provide that, after certain Asset Sales (as
defined in the Indenture) and upon the occurrence of a Change
of Control (as defined in the Indenture), and subject to
further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance
with the procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes
---------------------------------
are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register
the transfer of or
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exchange of any Notes or portions thereof
selected for redemption.
10. Persons Deemed Owners. The registered Holder of
---------------------
a Note shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of
---------------
principal or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the
Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If
-----------------------------------------
the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the
principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Notes (including
certain covenants, but excluding its obligation to pay the
principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to
-----------------------------
certain exceptions, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default
or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding. Without notice
to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things,
cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material
respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes
---------------------
certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its
Capital Stock or certain Indebtedness, enter into transactions
with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries, merge or consolidate with any other
Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a
plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must
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annually report to the Trustee on compliance with such
limitations.
15. Successors. When a successor assumes, in
----------
accordance with the Indenture, all the obligations of its
predecessor under the Notes and the Indenture, the predecessor
will be released from those obligations.
16. Defaults and Remedies. If an Event of Default
---------------------
occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable in
the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee is
not obligated to enforce the Indenture or the Notes unless it
has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount
of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest)
if it determines that withholding notice is in their interest.
17. Trustee Dealings with Company. The Trustee
-----------------------------
under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No stockholder,
--------------------------
director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based
on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid
--------------
until the Trustee or Authenticating Agent manually signs the
certificate of authentication on this Note.
20. Governing Law. The Laws of the State of New
-------------
York shall govern this Note and the Indenture, without regard
to principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary
-------------------------------
abbreviations may be used in the name of a Holder of a Note or
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an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP Numbers. Pursuant to a recommendation
-------------
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed
on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
23. Indenture. Each Holder, by accepting a Note,
---------
agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture,
which has the text of this Note in larger type. Requests may
be made to: Dade International Inc., 1717 Deerfield Road,
Deerfield, IL 60015-0778, Attn: Chief Financial Officer.
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in
the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________,
agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Dated: __________________ Signed: _________________________
(Sign exactly as name
appears on the other side
of this Note)
Signature Guarantee: _________________________________
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.15 or Section
4.16 of the Indenture, state the amount you elect to have
purchased:
$___________________
Dated: _________________ _____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: ____________________________
B-9
Exhibit C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Attention: Securities Processing
Window Level SC1
Re: Dade International Inc. 11 1/8% Senior
Subordinated Notes due 2006
---------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of 11 1/8%
Senior Subordinated Notes due 2006 (the "Notes") of Dade
International Inc. (the "Company"), we confirm that:
1. We have received a copy of the Offering
Memorandum (the "Offering Memorandum"), dated April 30, 1996
relating to the Notes and such other information as we deem
necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated
on pages (i)-(ii) of the Offering Memorandum and in the section
entitled "Transfer Restrictions" of the Offering Memorandum,
including the restrictions on duplication and circulation of
the Offering Memorandum.
2. We understand that any subsequent transfer of
the Notes is subject to certain restrictions and conditions set
forth in the Indenture relating to the Notes (as described in
the Offering Memorandum) and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the
Notes have not been registered under the Securities Act, and
that the Notes may not be offered or sold except as permitted
in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Notes
prior to the date which is three years after the original
issuance of the Notes, we will do so only (i) to the Company or
any of its subsidiaries, (ii) inside the United States in
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accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to the Trustee (as defined in
the Indenture relating to the Notes), a signed letter
containing certain representations and agreements relating to
the restrictions on transfer of the Notes, (iv) outside the
United States in accordance with Rule 904 of Regulation S under
the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are
restricted as stated herein.
4. We are not acquiring the Notes for or on behalf
of, and will not transfer the Notes to, any pension or welfare
plan (as defined in Section 3 of the Employee Retirement Income
Security Act of 1974), except as permitted in the section
entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale of
any Notes, we will be required to furnish to the Trustee and
the Company such certification, legal opinions and other
information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment, as
the case may be.
7. We are acquiring the Notes purchased by us for
our account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we
exercise sole investment discretion.
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You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
---------------------------------------
Name:
Title:
C-3
Exhibit D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
______________, ____
IBJ Schroder Bank & Trust Company
One State Street
New York, NY 10004
Attention: Securities Processing
Window Level SC1
Re: Dade International Inc. (the "Company")
11 1/8% Senior Subordinated Notes due 2006
(the "Notes")
---------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $___________
aggregate principal amount of the Notes, we confirm that such
sale has been effected pursuant to and in accordance with
Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person
in the United States;
(2) either (a) at the time the buy offer was
originated, the transferee was outside the United States
or we and any person acting on our behalf reasonably
believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or
through the facilities of a designated off-shore
securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in
the United States in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
D-1
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities
Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
Authorized Signature
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