EXHIBIT 4(p)
XXXXX HEALTHCARE CORPORATION
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$1,005,000,000
8 1/8% SENIOR SUBORDINATED NOTES due 2008
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INDENTURE
Dated as of May 21, 1998
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THE BANK OF NEW YORK
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as Trustee
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . . . .11
SECTION 1.03. INCORPORATION BY REFERENCE OF TIA . . . . . . . . . . . . . .11
SECTION 1.04. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . .12
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY. . . . . . . . . . . . . .13
SECTION 2.03. EXECUTION AND AUTHENTICATION. . . . . . . . . . . . . . . . .13
SECTION 2.04. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . . . . . .14
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST . . . . . . . . . . . . .14
SECTION 2.06. HOLDER LISTS. . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 2.07. TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . . . .15
SECTION 2.08. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . .15
SECTION 2.09. REPLACEMENT SECURITIES. . . . . . . . . . . . . . . . . . . .16
SECTION 2.10. OUTSTANDING SECURITIES. . . . . . . . . . . . . . . . . . . .16
SECTION 2.11. TREASURY SECURITIES . . . . . . . . . . . . . . . . . . . . .17
SECTION 2.12. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . . .17
SECTION 2.13. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 2.14. DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . . . .17
SECTION 2.15. RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 2.16. CUSIP NUMBER. . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. . . . . . . . . . . . . . . . . . . . . .18
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. . . . . . . . . . . .18
SECTION 3.03. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . .18
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . . . . . .19
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . .19
SECTION 3.06. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . . . .20
SECTION 3.07. OPTIONAL REDEMPTION . . . . . . . . . . . . . . . . . . . . .20
SECTION 3.08. MANDATORY REDEMPTION. . . . . . . . . . . . . . . . . . . . .20
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES . . . . . . . . . . . . . . . . . . . .21
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . .21
SECTION 4.03. COMMISSION REPORTS. . . . . . . . . . . . . . . . . . . . . .21
SECTION 4.04. COMPLIANCE CERTIFICATE. . . . . . . . . . . . . . . . . . . .22
SECTION 4.05. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 4.06. STAY, EXTENSION AND USURY LAWS. . . . . . . . . . . . . . . .23
SECTION 4.07. LIMITATIONS ON RESTRICTED PAYMENTS. . . . . . . . . . . . . .24
SECTION 4.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. . . . . . . . . . . . . . . . . . . .25
SECTION 4.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND
ISSUANCE OF PREFERRED STOCK. . . . . . . . . . . . . . . .26
SECTION 4.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES . . . . . . . . .28
SECTION 4.11. LIMITATIONS ON LIENS. . . . . . . . . . . . . . . . . . . . .28
SECTION 4.12. CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . . . . .28
SECTION 4.13. CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.14. LINE OF BUSINESS. . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.15. LIMITATIONS ON ISSUANCES OF GUARANTEES OF
INDEBTEDNESS BY SUBSIDIARIES . . . . . . . . . . . . . . .30
SECTION 4.16. NO SENIOR SUBORDINATED DEBT . . . . . . . . . . . . . . . . .31
ARTICLE 5
SUCCESSORS
SECTION 5.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS OR
SALES OF ASSETS . . . . . . . . . . . . . . . . . . . . . .31
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . .32
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . .32
SECTION 6.02. ACCELERATION. . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 6.03. OTHER REMEDIES. . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 6.04. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . .34
SECTION 6.05. CONTROL BY MAJORITY . . . . . . . . . . . . . . . . . . . . .35
SECTION 6.06. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . .35
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. . . . . . . . . . . . .35
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. . . . . . . . . . . . . . . . . .35
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . .36
SECTION 6.10. PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 6.11. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . .37
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . .37
SECTION 7.02. RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . .38
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . .38
SECTION 7.04. TRUSTEE'S DISCLAIMER. . . . . . . . . . . . . . . . . . . . .39
SECTION 7.05. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . .39
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS . . . . . . . . . . . . . . . .39
SECTION 7.07. COMPENSATION AND INDEMNITY. . . . . . . . . . . . . . . . . .39
SECTION 7.08. REPLACEMENT OF TRUSTEE. . . . . . . . . . . . . . . . . . . .40
SECTION 7.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC.. . . . . . . . . .41
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . . . . . .41
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . . . .41
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE
AND THE SECURITIES . . . . . . . . . . . . . . . . . . . .41
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . . . .42
SECTION 8.03. COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . .42
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. . . . . . . . . .42
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . .44
SECTION 8.06. REPAYMENT TO COMPANY. . . . . . . . . . . . . . . . . . . . .45
SECTION 8.07. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . .45
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . .45
SECTION 9.02. WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . .46
SECTION 9.03. COMPLIANCE WITH TIA . . . . . . . . . . . . . . . . . . . . .47
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . . . . . .47
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES . . . . . . . . . . . .48
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.. . . . . . . . . . . . . . .48
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. . . . . . . . . . . . . . . . . . .48
SECTION 10.02. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . .48
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY. . . . . . . . . . . . .49
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT . . . . . . . . . . . . . .49
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SECTION 10.05. ACCELERATION OF SECURITIES. . . . . . . . . . . . . . . . . .50
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER . . . . . . . . . . . . .50
SECTION 10.07. NOTICE BY COMPANY . . . . . . . . . . . . . . . . . . . . . .51
SECTION 10.08. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 10.09. RELATIVE RIGHTS . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. . . . . . . . .51
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. . . . . . . . . . .51
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT. . . . . . . . . . . . . .52
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION . . . . . . . . . . . .52
SECTION 10.14. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . .52
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS. . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 11.02. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . . . .54
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . .54
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . .54
SECTION 11.06. RULES BY TRUSTEE AND AGENTS . . . . . . . . . . . . . . . . .54
SECTION 11.07. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 11.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS . . . . . . . . . . . . . . . .55
SECTION 11.09. DUPLICATE ORIGINALS . . . . . . . . . . . . . . . . . . . . .55
SECTION 11.10. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . .55
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . . . .55
SECTION 11.12. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . .55
SECTION 11.13. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . .55
SECTION 11.14. COUNTERPART ORIGINALS . . . . . . . . . . . . . . . . . . . .55
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . . . .56
SIGNATURES
APPENDIX A RULE 144A/REGULATION S
APPENDIX B FORM OF SUPPLEMENTAL INDENTURE
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CROSS-REFERENCE TABLE (*)
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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310 (a)(1) . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . 7.08; 7.10
(c). . . . . . . . . . . . . . . . . . N.A.
311 (a). . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . N.A.
312 (a). . . . . . . . . . . . . . . . . . 2.06
(b). . . . . . . . . . . . . . . . . . 11.03
(c). . . . . . . . . . . . . . . . . . 11.03
313 (a). . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . 7.06; 11.02
(d). . . . . . . . . . . . . . . . . . N.A.
314 (a). . . . . . . . . . . . . . . . . . 4.03; 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(iii)(b)
(b). . . . . . . . . . . . . . . . . . 7.05; 11.02
(c). . . . . . . . . . . . . . . . . . 7.01(i)
(d). . . . . . . . . . . . . . . . . . 7.01(iii)
(e). . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . 2.11
(a)(1)(A) . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . 6.07
(c). . . . . . . . . . . . . . . . . . 2.15; 9.04
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(*) This Cross-Reference Table is not part of the indenture.
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317 (a)(1) . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . 2.05
318 (a). . . . . . . . . . . . . . . . . . 11.01
(b). . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . 11.01
N.A. means not applicable
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INDENTURE dated as of May 21, 1998 between Xxxxx Healthcare
Corporation, a Nevada corporation (the "COMPANY"), and The Bank of New York, as
trustee (the "TRUSTEE").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 8 1/8% Senior
Subordinated Notes due 2008:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) other than in the ordinary course of business consistent with past
practices and (ii) the issuance or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single transaction or a series
of related transactions (a) that have a fair market value in excess of $25.0
million or (b) for net proceeds in excess of $25.0 million. Notwithstanding the
foregoing: (a) a transfer of assets by the Company to a Subsidiary or by a
Subsidiary to the Company or to another Subsidiary, (b) an issuance of Equity
Interests by a Subsidiary to the Company or to another Subsidiary, (c) a
Restricted Payment that is permitted by Section 4.07 hereof and (d) a Hospital
Swap shall not be deemed to be an Asset Sale.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
any authorized committee thereof.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE" means, at the time any determination thereof is to be
made, any lease of property, real or personal, in respect of which the present
value of the minimum rental commitment would be capitalized on a balance sheet
of the lessee in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a Capital Lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole to any Person or group (as such
term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than
to a Person or group who, prior to such transaction, held a majority of the
voting power of the voting stock of the Company, (ii) the acquisition by any
Person or group (as defined above) of a direct or indirect interest in more than
50% of the voting power of the voting stock of the Company, by way of merger or
consolidation or otherwise, or (iii) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of both a
Change of Control and a Rating Decline.
"CLOSING DATE" means May 21, 1998.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means Xxxxx Healthcare Corporation, as obligor under the
Securities, unless and until a successor replaces Xxxxx Healthcare Corporation,
in accordance with Article 5 hereof and thereafter includes such successor.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period PLUS in each
case, without duplication (i) an amount equal to any extraordinary loss plus any
net loss realized in connection with an Asset Sale (to the extent such losses
were deducted in computing such Consolidated Net Income), (ii) provision for
taxes based on income or profits of such Person and its Subsidiaries for such
period, to the extent that such provision for taxes was included in computing
such Consolidated Net Income, (iii) the Fixed Charges of such Person and its
Subsidiaries for such period, to the extent that such Fixed Charges were
deducted in computing such Consolidated Net Income, (iv) depreciation and
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) of such Person and its Subsidiaries for such period to the extent that
such depreciation and amortization were deducted in computing such Consolidated
Net Income, in each case, on a consolidated basis and determined in accordance
with GAAP, (v) the amount of any restructuring charges deducted in such period
in computing Consolidated Net Income for such period, (vi) the amount of all
losses related
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to discontinued operations deducted in such period in computing Consolidated Net
Income for such period, (vii) the amount of all non-recurring charges and
expenses related to acquisitions and mergers deducted in such period in
computing Consolidated Net Income for such period and (viii) any non-cash
charges reducing Consolidated Net Income for such period (excluding any portion
of such charge requiring an accrual of a cash reserve for anticipated cash
charges for any future period). Notwithstanding the foregoing, the provision
for taxes on the income or profits of, and the depreciation and amortization of,
a Subsidiary of the referent Person shall be added to Consolidated Net Income to
compute Consolidated Cash Flow only to the extent (and in same proportion) that
the Net Income of such Subsidiary was included in calculating the Consolidated
Net Income of such Person and only if a corresponding amount would be permitted
at the date of determination to be dividended to the Company by such Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or
its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP but
excluding any one-time charge or expense incurred in order to consummate the
Refinancing; PROVIDED that (i) the Net Income of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, (iii) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded and (iv) the cumulative effect of a change in
accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date PLUS (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock), LESS
all write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made in accordance
with GAAP as a result of the acquisition of such business) subsequent to the
Closing Date in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, and excluding the cumulative effect of a
change in accounting principles, all as determined in accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Closing Date or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
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"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEPOSITARY" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to December
1, 2008.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE SECURITIES" shall have the meaning set forth in Appendix A.
"EXISTING CREDIT FACILITY" means that certain Credit Agreement by and
among the Company and Xxxxxx Guaranty Trust Company of New York and the other
banks that are party thereto, providing for $2.8 billion in aggregate principal
amount of Indebtedness, including any related notes, instruments, and agreements
executed in connection therewith, as amended, modified, extended, renewed,
refunded, replaced or refinanced, in whole or in part, from time to time.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Existing Credit Facility) in
existence on the Closing Date, until such amounts are repaid, including all
reimbursement obligations with respect to letters of credit outstanding as of
the Closing Date.
"EXISTING SENIOR NOTES" means the 8 5/8% 2003 Senior Notes, the
2002 Senior Notes, the 2005 Senior Notes and the 7 7/8% 2003 Senior Notes.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"),
then the Fixed Charge Coverage Ratio shall be calculated giving PRO FORMA effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Subsidiaries, including through mergers
or consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be deemed to have occurred on the first day
of the four-quarter reference period, and (ii) the Consolidated Cash Flow and
-4-
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded.
"FIXED CHARGES" means, with respect to any Person for any period, the
sum of (i) the consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letters of credit or
bankers' acceptance financings, and net payments or receipts (if any) pursuant
to Hedging Obligations) and (ii) the consolidated interest expense of such
Person and its Subsidiaries that was capitalized during such period, and (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon) and (iv) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person, TIMES (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, as in effect from time to time.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.02.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) forward foreign
exchange contracts or currency swap agreements and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values.
"HOLDER" means a Person in whose name a Security is registered.
"HOSPITAL" means a hospital, outpatient clinic, long-term care
facility or other facility or business that is used or useful in or related to
the provision of healthcare services.
-5-
"HOSPITAL SWAP" means an exchange of assets by the Company or a
Subsidiary of the Company for one or more Hospitals and/or one or more Related
Businesses or for the Capital Stock of any Person owning one or more Hospitals
and/or one or more Related Businesses.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INITIAL SECURITIES" shall have the meaning set forth in Appendix A.
"INVESTMENT GRADE" means a rating of BBB- or higher by S&P or Baa3 or
higher by Xxxxx'x or the equivalent of such ratings by S&P or Xxxxx'x. In the
event that the Company shall select any other Rating Agency, the equivalent of
such ratings by such Rating Agency shall be used.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge, charge or
security interest).
"MOODY'S" means Xxxxx'x Investors Services, Inc. and its successors.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but not
loss).
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
-6-
"OFFICERS" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
and any Vice President of the Company or any Subsidiary, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers,
one of whom must be the principal executive officer, principal financial officer
or principal accounting officer of the Company.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
"PERMITTED LIENS" means (i) Liens in favor of the Company; (ii) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; PROVIDED that such Liens were in existence prior to
the contemplation of such merger, consolidation or acquisition (unless such
Liens secure Indebtedness that was incurred in connection with or in
contemplation of such acquisition and is used to refinance tax-exempt
Indebtedness) and do not extend to any assets or the Company or its Subsidiaries
other than those of the Person merged into or consolidated with the Company or
that becomes a Subsidiary of the Company; (iii) Liens on property existing at
the time of acquisition thereof by the Company or any Subsidiary of the Company;
PROVIDED that such Liens were in existence prior to the contemplation of such
acquisition (unless such Liens secure Indebtedness that was incurred in
connection with or in contemplation of such acquisition and is used to refinance
tax-exempt Indebtedness); (iv) Liens to secure the performance of statutory
obligations, tender, bid, performance, government contract, surety or appeal
bonds or other obligations of a like nature incurred in the ordinary course of
business; (v) Liens existing on the Closing Date; (vi) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (vii) other Liens on assets of the Company or any Subsidiary
of the Company securing Indebtedness that is permitted by the terms hereof to be
outstanding having an aggregate principal amount at any one time outstanding not
to exceed 10% of the Stockholders' Equity of the Company; and (viii) Liens to
secure Permitted Refinancing Indebtedness incurred to refinance Indebtedness
that was secured by a Lien permitted hereunder and that was incurred in
accordance with the provisions hereof; PROVIDED that such Liens do not extend to
or cover any property or assets of the Company or any Subsidiary other than
assets or property securing the Indebtedness so refinanced.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used solely to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Subsidiaries; PROVIDED
that, except in the case of Indebtedness of the Company issued in exchange for,
or the net proceeds of which are used solely to extend, refinance, renew,
replace, defease or refund, Indebtedness of a Subsidiary of the Company: (i)
the principal amount of such Permitted Refinancing Indebtedness does not exceed
the principal amount of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of any premiums paid and
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
-7-
refunded is subordinated in right of payment to the Securities, such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Securities on
subordination terms at least as favorable to the Holders of Securities as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iv) such Indebtedness is
incurred by the Company if the Company is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (v) such
Indebtedness is incurred by the Company or a Subsidiary if a Subsidiary is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust or unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PHYSICIAN JOINT VENTURE DISTRIBUTIONS" means distributions made by
the Company or any of its Subsidiaries to any physician, pharmacist or other
allied healthcare professional in connection with the unwinding, liquidation or
other termination of any joint venture or similar arrangement between any such
Person and the Company or any of its Subsidiaries.
"PHYSICIAN SUPPORT OBLIGATIONS" means any obligation or Guarantee
incurred in the ordinary course of business by the Company or a Subsidiary of
the Company in connection with any advance, loan or payment to, or on behalf of
or for the benefit of any physician, pharmacist or other allied healthcare
professional for the purpose of recruiting, redirecting or retaining the
physician, pharmacist or other allied healthcare professional to provide service
to patients in the service area of any Hospital or Related Business owned or
operated by the Company or any of its Subsidiaries; EXCLUDING, HOWEVER,
compensation for services provided by physicians, pharmacists or other allied
healthcare professionals to any Hospital or Related Business owned or operated
by the Company or any of its Subsidiaries.
"QUALIFIED EQUITY INTERESTS" shall mean all Equity Interests of the
Company other than Disqualified Stock of the Company.
"RATING AGENCIES" means (i) S&P and (ii) Moody's or (iii) if neither
S&P nor Xxxxx'x shall make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Xxxxx'x or both,
as the case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Securities has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Xxxxx'x; or
the equivalent gradations for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+, shall constitute a decrease of one gradation).
"RATING DATE" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) the first public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control.
-8-
"RATING DECLINE" means the occurrence on or within 90 days after the
date of the first public notice of the occurrence of a Change of Control or of
the intention by the Company to effect a Change of Control (which period shall
be extended so long as the rating of the Securities is under publicly announced
consideration for possible downgrade by any of the Rating Agencies) of: (a) in
the event the Securities are rated by either Xxxxx'x or S&P on the Rating Date
as Investment Grade, a decrease in the rating of the Securities by both Rating
Agencies to a rating that is below Investment Grade, or (b) in the event the
Securities are rated below Investment Grade by both Rating Agencies on the
Rating Date, a decrease in the rating of the Securities by either Rating Agency
by one or more gradations (including gradations within Rating Categories as well
as between Rating Categories).
"REFINANCING" has the meaning ascribed to it in the offering
memorandum dated May 8, 1998 relating to the Senior Notes and the Securities.
"RELATED BUSINESS" means a healthcare business affiliated or
associated with a Hospital or any business related or ancillary to the provision
of healthcare services or information or the investment in, management, leasing
or operation of a Hospital.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"SECURITIES" means the Initial Securities and the Exchange Securities,
treated as a single class.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR NOTES" means the 7 5/8% Senior Notes due 2008 of the
Company in an aggregate principal amount of $350.0 million, issued pursuant
to the Senior Note Indenture.
"SENIOR NOTE INDENTURE" means the Indenture dated as of May 21, 1998
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time, under which the Senior Notes were issued.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Closing Date.
"S&P" means Standard & Poor's Corporation and its successors.
"SPECIFIED EXCHANGE" means any retirement of Indebtedness upon the
exercise by a holder of such Indebtedness, pursuant to the terms thereof, of any
right to exchange such Indebtedness for shares of common stock of Vencor, Inc.
or any successor thereto or any other equity securities, other than Equity
Interests of a Subsidiary, owned by the Company as of October 11, 1995, or for
any securities or other property received with respect to such common stock or
equity securities or cash in lieu thereof, whether or not such right is subject
to the Company's ability to pay an amount in cash in lieu thereof.
-9-
"STOCKHOLDERS' EQUITY" means, with respect to any Person as of any
date, the stockholders' equity of such Person determined in accordance with GAAP
as of the date of the most recent available internal financial statements of
such Person, and calculated on a PRO FORMA basis to give effect to any
acquisition or disposition by such Person consummated or to be consummated since
the date of such financial statements and on or prior to the date of such
calculation.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03 hereof.
"TRANSFER RESTRICTION" means, with respect to the Company's
Subsidiaries, any encumbrance or restriction on the ability of any Subsidiary to
(i)(a) pay dividends or make any other distributions to the Company or any of
its Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Company or any of its Subsidiaries, (ii) make loans or
advances to the Company or any of its Subsidiaries, or (iii) transfer any of its
properties or assets to the Company or any of its Subsidiaries.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
"2002 SENIOR NOTES" means the 9% Senior Notes due 2002 of the Company
in an aggregate principal amount of $300.0 million, issued pursuant to the
Indenture dated as of March 1, 1995, between the Company and The Bank of New
York, as trustee, as amended or supplemented from time to time.
-10-
"7% 2003 SENIOR NOTES" means the 7% Senior Notes due 2003 of the
Company in an aggregate principal amount of $400.0 million, issued pursuant to
the Indenture dated as of January 15, 1997, between the Company and The Bank of
New York, as trustee, as amended or supplemented from time to time.
"8% 2003 SENIOR NOTES" means the 8% Senior Notes due 2003 of the
Company in an aggregate principal amount of $500.0 million, issued pursuant
to the Indenture dated as of October 16, 1995, between the Company and The
Bank of New York, as trustee, as amended or supplemented from time to time.
"2005 EXCHANGEABLE SUBORDINATED NOTES" means the 6% Exchangeable
Subordinated Notes due 2005 of the Company in an aggregate principal amount of
$320.0 million, issued pursuant to the Indenture dated as of January 10, 1996,
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
"2005 SENIOR NOTES" means the 8% Senior Notes due 2005 of the Company
in an aggregate principal amount of $900.0 million, issued pursuant to the
Indenture dated as of January 15, 1997, between the Company and The Bank of New
York, as trustee, as amended or supplemented from time to time.
"2005 SENIOR SUBORDINATED NOTES" means the 10% Senior Subordinated
Notes due 2005 of the Company in an aggregate principal amount of
$900.0 million, issued pursuant to the Indenture dated as of March 1, 1995,
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
"2007 SENIOR SUBORDINATED NOTES" means the 8% Senior Subordinated
Notes due 2007 of the Company in an aggregate principal amount of $700.0
million, issued pursuant to the Indenture dated as of January 15, 1997, between
the Company and The Bank of New York, as trustee, as amended or supplemented
from time to time.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . . . 4.10
"Bankruptcy Law" . . . . . . . . . . . . . . . . . 6.01
"Change of Control Offer" . . . . . . . . . . . . . 4.12
"Change of Control Payment" . . . . . . . . . . . . 4.12
"Change of Control Payment Date" . . . . . . . . . 4.12
"Company Deposit" . . . . . . . . . . . . . . . . . 8.04
"Covenant Defeasance" . . . . . . . . . . . . . . . 8.03
"Deposits" . . . . . . . . . . . . . . . . . . . . 8.04
"Designated Senior Debt" . . . . . . . . . . . . . 10.02
"Custodian" . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . 6.01
"incur" . . . . . . . . . . . . . . . . . . . . . . 4.09
"Legal Defeasance" . . . . . . . . . . . . . . . . 8.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . 11.07
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"New Lender Deposit" . . . . . . . . . . . . . . . 8.04
"New Loan" . . . . . . . . . . . . . . . . . . . . 8.04
"New Loan Agreement" . . . . . . . . . . . . . . . 8.04
"Notice of Default" . . . . . . . . . . . . . . . . 6.01
"Paying Agent" . . . . . . . . . . . . . . . . . . 2.03
"Payment Blockage Notice" . . . . . . . . . . . . . 10.04
"Registrar" . . . . . . . . . . . . . . . . . . . . 2.03
"Representative" . . . . . . . . . . . . . . . . . 10.02
"Restricted Payments" . . . . . . . . . . . . . . . 4.07
"Senior Debt" . . . . . . . . . . . . . . . . . . . 10.02
SECTION 1.03. INCORPORATION BY REFERENCE OF XXX.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. 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;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
-12-
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
Provisions relating to the Initial Securities and the Exchange
Securities are set forth in the Rule 144A/Regulation S Appendix attached hereto
("Appendix A"), which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to Appendix A,
which is hereby incorporated in and expressly made a part of this Indenture.
The Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 2 to Appendix A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Appendix A and the Exhibits thereto are part of the
terms of this Indenture. The Securities shall be issuable only in registered
form, without coupons, in denominations of $1,000 and integral multiples
thereof. The Securities may be Global Securities, as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be exchanged in
whole or in part for a Security registered, and no transfer of this
Security in whole or in part may be registered, in the name of any person
other than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture."
SECTION 2.03. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Appendix A and the exhibits thereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Securities for original issue up to the
aggregate principal amount stated in
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paragraph 4 of the Securities. The aggregate principal amount of Securities
outstanding at any time shall not exceed the amount set forth herein except as
provided in Section 2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
The Company initially appoints The Depository Trust Company as the
Depositary.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Securities
may be presented for registration of transfer or for exchange (including any
co-registrar, the "REGISTRAR") and (ii) an office or agency where Securities may
be presented for payment (the "PAYING AGENT"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder. The Company shall notify the Trustee and the Trustee shall notify the
Holders of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent, Registrar or co-registrar. The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture,
which shall incorporate the provisions of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Securities.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to the due date of principal of, premium, if any, and
interest on any Securities, the Company shall deposit with the Trustee or the
Paying Agent money sufficient to pay such principal, premium, if any, and
interest becoming due. The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Securities,
and shall notify the Trustee of any Default by the Company in making any such
payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money
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held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company) shall have no further liability for
the money delivered to the Trustee. If the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, including
the aggregate principal amount of the Securities held by each thereof, and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar with a request to
register the transfer or to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met; PROVIDED,
HOWEVER, that any Security presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar and the Trustee duly executed by
the Holder thereof or by his attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Company shall issue and the Trustee
shall authenticate Securities at the Registrar's request, subject to such rules
as the Trustee may reasonably require.
Neither the Company nor the Registrar shall be required to (i)
register the transfer or exchange of Securities during a period beginning at the
opening of business on a Business Day 15 days before the day of mailing of a
notice of redemption of Securities for redemption under Section 3.03 hereof and
ending at the close of business on the day of such mailing, (ii) register the
transfer or exchange of any Security selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part or
(iii) register the transfer or exchange of a Security between the record date
and the next succeeding interest payment date.
No service charge shall be made to any Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), 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 such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Sections 2.12 or 9.05 hereof, which shall be paid by the Company).
Notwithstanding the foregoing, a Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or any such nominee to a successor of the Depositary or a nominee of such
successor, unless:
(i) the Depositary is at any time unwilling or unable to
continue as depository or if at any time the Depositary ceases to be a
clearing agency registered under the Exchange Act and a successor
depository is not appointed by the Company within 90 days,
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(ii) an Event of Default under this Indenture with respect to
the Securities has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the Securities advise the
Depositary to cease acting as depositary or
(iii) the Company, in its sole discretion, determines at any
time that the Securities shall no longer be represented by a Global
Security, the Company will issue individual Securities of the applicable
amount and in certificated form in exchange for a Global Security. In any
such instance, an owner of a beneficial interest in the Global Security
will be entitled to physical delivery of individual securities in
certificated form of like tenor, equal in principal amount to such
beneficial interest and to have such Securities in certificated form
registered in its name.
SECTION 2.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Security,
the Trustee, any Agent and the Company may deem and treat the Person in whose
name any Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
So long as the Depositary or its nominee is the registered Holder of a
Global Security, the Depositary or its nominee, as the case may be, will be
treated as the sole owner of it for all purposes under the Indenture and the
beneficial owners of the Securities will be entitled only to those rights and
benefits afforded to them in accordance with the Depositary's regular operating
procedures. Except as provided in Section 2.07, owners of beneficial interests
in a Global Security will not be entitled to have Securities represented by a
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Securities in certificated form and will not be
considered the registered Holders thereof under the Indenture.
None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.09. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee or the
Company, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. An indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss which any of them may suffer if a Security is replaced. Each of the
Company and the Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
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SECTION 2.10. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.11 hereof, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
SECTION 2.11. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities then outstanding have concurred in any demand, direction, waiver or
consent, Securities owned by the Company or any Affiliate of the Company shall
be considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such demand, direction,
waiver or consent, only Securities that a Responsible Officer actually knows to
be so owned shall be so considered. Notwithstanding the foregoing, Securities
that are to be acquired by the Company or an Affiliate of the Company pursuant
to an exchange offer, tender offer or other agreement shall not be deemed to be
owned by the Company or an Affiliate of the Company until legal title to such
Securities passes to the Company or such Affiliate, as the case may be.
SECTION 2.12. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee, upon receipt of the written order of the Company signed
by two Officers of the Company, shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company and the Trustee consider appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee, upon receipt of the written order of the Company signed by two
Officers of the Company, shall authenticate definitive Securities in exchange
for temporary Securities. Until such exchange, temporary Securities shall be
entitled to the same rights, benefits and privileges as definitive Securities.
SECTION 2.13. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall return
such cancelled Securities to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
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SECTION 2.14. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
related payment date, in each case at the rate provided in the Securities and in
Section 4.01 hereof. The Company shall, with the consent of the Trustee, fix or
cause to be fixed each such special record date and payment date. At least 15
days before the special record date, the Company (or the Trustee, in the name of
and at the expense of the Company) shall mail to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.15. RECORD DATE.
The record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA
Section 316(c).
SECTION 2.16. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number, and if
it does so, the Trustee shall use the CUSIP number in notices to Holders;
PROVIDED that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the
Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Securities to be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Securities
pursuant to the provisions of Section 4.12 hereof, it shall furnish to the
Trustee an Officers' Certificate setting forth (i) the Section of this Indenture
pursuant to which the purchase shall occur, (ii) the purchase date, (iii) the
principal amount of Securities to be purchased, (iv) the purchase price and (v)
a statement to the effect that a Change of Control has occurred and the
conditions set forth in Section 4.12 hereof have been satisfied, as applicable.
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SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select the Securities to be redeemed among the Holders in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are then listed, or, if the Securities are not
so listed, on a PRO RATA basis, by lot or by such method the Trustee shall deem
fair and appropriate; PROVIDED that Securities with a principal amount of $1,000
shall not be redeemed in part.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in the amounts of $1,000 or whole multiples
of $1,000; except that if all of the Securities of a Holder are to be redeemed,
the entire outstanding amount of Securities held by such Holders, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities 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 by first class mail a notice of
redemption to each Holder of Securities to be redeemed at its registered
address.
The notice shall identify the Securities to be redeemed (including
CUSIP number) and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the redemption date upon surrender of such Security, a new
Security or Securities in principal amount equal to the
unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on
the Securities.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date, unless the Trustee shall agree to a shorter period, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of, and accrued interest on, all Securities to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of (including any
applicable premium), and accrued interest on, all Securities to be redeemed.
On and after the redemption date, interest ceases to accrue on the
Securities or the portions of Securities called for redemption. If a Security
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whoso name such Security was registered at the close of business on
such record date. If any Security called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case the rate
provided in the Securities and in Section 4.01 hereof.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security equal in principal amount to the unredeemed portion
of the Security surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
On or after June 1, 2003, the Company may redeem all or any portion of
the Securities at the redemption prices (expressed as a percentage of the
principal amount thereof), as set forth in the immediately succeeding paragraph,
plus accrued and unpaid interest, if any, to the redemption date.
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The redemption price (expressed as a percentage of the principal
amount) shall be as follows, if the Securities are redeemed during the
twelve-month period beginning on June 1 of the following years:
Year Percentage
---- ----------
2003 104.063%
2004 102.708%
2005 101.354%
----------
----------
2006 and thereafter 100.000%
SECTION 3.08. MANDATORY REDEMPTION.
Subject to the Company's obligation to make an offer to repurchase
Securities under certain circumstances pursuant to Section 4.12 hereof, the
Company shall not be required to make any mandatory redemption or sinking fund
payments with respect to the Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Securities on the dates and in the manner provided
in this Indenture and the Securities. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary of the Company, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. Such Paying Agent shall return to the Company, no later than
five days following the date of payment, any money (including accrued interest)
that exceeds such amount of principal, premium, if any, and interest to be paid
on the Securities.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the interest rate then applicable to the Securities
to the extent lawful. In addition, it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required
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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
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates The Bank of New York, 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 as one such office or agency of the
Company in accordance with Section 2.04 hereof.
SECTION 4.03. COMMISSION REPORTS.
(i) So long as any of the Securities remain outstanding, the
Company shall provide to the Trustee within 15 days after the filing
thereof with the Commission copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may by rules and regulations prescribe)
that the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act. All obligors on the Securities
shall comply with the provisions of TIA Section 314(a). Notwithstanding
that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual
and quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the Commission,
the Company shall file with the Commission and provide to the Trustee (a)
within 90 days after the end of each fiscal year, annual reports on Form
10-K (or any successor or comparable form) containing the information
required to be contained therein (or required in such successor or
comparable form), including a "MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS" and a report thereon by the
Company's certified public accountants; (b) within 45 days after the end of
each of the first three fiscal quarters of each fiscal year, reports on
Form 10-Q (or any successor or comparable form) containing the information
required to be contained therein (or required in any successor or
comparable form), including a "MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS"; and (c) promptly from time
to time after the occurrence of an event required to be therein reported,
such other reports on Form 8-K (or any successor or comparable form)
containing the information required to be contained therein (or required in
any successor or comparable form); PROVIDED, HOWEVER, that the Company
shall not be in default of the provisions of this Section 4.03(i) for any
failure to file reports with the Commission solely by the refusal of the
Commission to accept the same for filing. Each of the financial statements
contained in such reports shall be prepared in accordance with GAAP.
(ii) The Trustee, at the Company's request and expense, shall
promptly mail copies of all such annual reports, information, documents and
other reports provided to the Trustee pursuant to Section 4.03(i) hereof to
the Holders at their addresses appearing in the register of Securities
maintained by the Registrar.
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(iii) Whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability and make such
information available to securities analysts and prospective investors upon
request.
(iv) The Company shall provide the Trustee with a sufficient number
of copies of all reports and other documents and information that the
Trustee may be required to deliver to the Holders under this Section 4.03.
(v) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(i) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each 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 his or her knowledge each entity has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto), all without regard to periods of
grace or notice requirements, and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which payments
on account of the principal of or interest, if any, on the Securities is
prohibited or if such event has occurred, a description of the event and
what action each is taking or proposes to take with respect thereto.
(ii) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's certified independent
public accountants (who shall be a firm of established national reputation)
that in making the examination necessary for certification of such
financial statements nothing has come to their attention which would lead
them to believe that the Company or any Subsidiary of the Company has
violated any provisions of Article 4 or of Article 5 of this Indenture 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.
(iii) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of (a) any Default or Event of Default or (b) any event of default
under any other mortgage, indenture or instrument referred to in Section
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6.01(v) hereof, an Officers' Certificate specifying such Default, Event of
Default or event of default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken in accordance with GAAP or
(ii) where the failure to effect such payment is not adverse in any material
respect to the Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. LIMITATIONS ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Subsidiaries' Equity
Interests (other than (w) Physician Joint Venture Distributions, (x) dividends
or distributions payable in Qualified Equity Interests of the Company,
(y) dividends or distributions payable to the Company or any Subsidiary of the
Company, and (z) dividends or distributions by any Subsidiary of the Company
payable to all holders of a class of Equity Interests of such Subsidiary on a
PRO RATA basis); (ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company; or (iii) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Securities, except at the original
final maturity date thereof or pursuant to a Specified Exchange or the
Refinancing (all such payments and other actions set forth in clauses (i)
through (iii) above being collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment (the
amount of any such Restricted Payment, if other than cash, shall be the fair
market value (as conclusively evidenced by a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the Trustee within
60 days prior to the date of such Restricted Payment) of the asset(s) proposed
to be transferred by the Company or such Subsidiary, as the case may be,
pursuant to such Restricted Payment):
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving PRO FORMA effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least
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$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after March 1,
1995 (excluding Restricted Payments permitted by clauses (ii), (iii) and
(iv) of the next succeeding paragraph), is less than the sum of (1) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after March 1, 1995 to the end of the Company's most recently
ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such deficit), PLUS (2) 100% of
the aggregate net cash proceeds received by the Company from the issue or
sale (other than to a Subsidiary of the Company) since March 1, 1995 of
Qualified Equity Interests of the Company or of debt securities of the
Company or any of its Subsidiaries that have been converted into or
exchanged for such Qualified Equity Interests of the Company, PLUS (3)
$50.0 million.
If no Default or Event of Default has occurred and is continuing, or
would occur as a consequence thereof, the foregoing provisions shall not
prohibit the following Restricted Payments:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions hereof;
(ii) the payment of cash dividends on any series of Disqualified
Stock issued after the Closing Date in an aggregate amount not to exceed
the cash received by the Company since the Closing Date upon issuance of
such Disqualified Stock;
(iii) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company or any Subsidiary in exchange for,
or out of the net cash proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of Qualified Equity Interests
of the Company; PROVIDED that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c)(2) of the preceding
paragraph;
(iv) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or in exchange for or out of the net cash proceeds
from the substantially concurrent sale (other than to a Subsidiary of the
Company) of Qualified Equity Interests of the Company; PROVIDED that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c)(2) of the preceding paragraph;
(v) the repurchase, redemption or other acquisition or retirement
for value of (A) any Equity Interests of the Company or any Subsidiary of
the Company held by any member of the Company's (or any of its
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement or (B) any Equity Interests of the
Company which are or intended to be used to satisfy issuances of such
Equity Interests upon exercise of employee stock options or upon exercise
or satisfaction of other similar instruments outstanding under employee
benefit plans of the Company or any subsidiary of the Company; PROVIDED
that
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the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $25.0 million in any twelve-month
period; and
(vi) the making and consummation of (A) a senior subordinated asset
sale offer in accordance with the provisions of the indenture relating to
the 2005 Senior Subordinated Notes or (B) a Change of Control Offer with
respect to the Senior Subordinated Notes in accordance with the provisions
of the Senior Subordinated Note Indenture or change of control offer with
respect to the 2005 Senior Subordinated Notes or the 2005 Exchangeable
Subordinated Notes in accordance with the provisions of the indentures
relating thereto.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this covenant were computed.
SECTION 4.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual Transfer Restriction, except for such Transfer
Restrictions existing under or by reason of:
(a) Existing Indebtedness as in effect on the Closing Date,
(b) this Indenture, the Senior Subordinated Note Indenture and the
Indenture relating to the Company's 8% Senior Notes due 2005,
(c) applicable law,
(d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition, unless
such Indebtedness was incurred in connection with or in contemplation of
such acquisition for the purpose of refinancing Indebtedness which was
tax-exempt, or in violation of Section 4.09 hereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person,
so acquired, PROVIDED that the Consolidated Cash Flow of such Person shall
not be taken into account in determining whether such acquisition was
permitted by the terms hereof except to the extent that such Consolidated
Cash Flow would be permitted to be dividends to the Company without the
prior consent or approval of any third party,
(e) customary non-assignment provisions in leases entered into in
the ordinary course of business,
(f) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the ability of any
of the Company's Subsidiaries to transfer the property so acquired to the
Company or any of its Subsidiaries,
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(g) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in
the agreements governing the Indebtedness being refinanced, or
(h) the Existing Credit Facility and related documentation as the
same is in effect on the Closing Date and as amended, modified, extended,
renewed, refunded, refinanced, restated or replaced from time to time,
PROVIDED that no such amendment or replacement is more restrictive as to
Transfer Restrictions than the Existing Credit Facility and related
documentation as in effect on the Closing Date.
SECTION 4.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, Guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "INCUR") after the Closing Date any Indebtedness (including
Acquired Debt), and the Company shall not issue any Disqualified Stock and shall
not permit any of its Subsidiaries to issue any shares of preferred stock;
PROVIDED, HOWEVER, that the Company may incur Indebtedness (including Acquired
Debt) and the Company may issue shares of Disqualified Stock if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock is issued would have been at least 2.5 to 1, determined on a PRO FORMA
basis (including a PRO FORMA application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
Indebtedness consisting of reimbursement obligations in respect of a letter of
credit shall be deemed to be incurred when the letter of credit is first issued.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company of Indebtedness pursuant to the
Existing Credit Facility in an aggregate principal amount at any time
outstanding not to exceed an amount equal to $2.8 billion less the
aggregate amount of all mandatory repayments applied to permanently reduce
the commitments with respect to such Indebtedness;
(b) the incurrence by the Company of Indebtedness represented by
the Securities, the 8% Senior Notes due 2005 and the Senior Subordinated
Notes;
(c) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
(d) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred
(including, without limitation, Existing Indebtedness);
(e) the incurrence by the Company of Hedging Obligations that are
incurred for the purpose of fixing or hedging interest rate or currency
risk with respect to any fixed or floating rate Indebtedness that is
permitted by the terms hereof to be outstanding or any receivable or
liability the payment of which is determined by reference to a foreign
currency; PROVIDED that the
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notional principal amount of any such Hedging Obligation does not exceed
the principal amount of the Indebtedness to which such Hedging Obligation
relates;
(f) the incurrence by the Company or any of its Subsidiaries of
Physician Support Obligations;
(g) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Subsidiaries;
(h) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by tender, bid, performance, government contract,
surety or appeal bonds, standby letters of credit or warranty or
contractual service obligations of like nature, in each case to the extent
incurred in the ordinary course of business of the Company or such
Subsidiary;
(i) the incurrence by any Subsidiary of the Company of
Indebtedness, the aggregate principal amount of which, together with all
other Indebtedness of the Company's Subsidiaries at the time outstanding
(excluding the Existing Indebtedness until repaid or refinanced and
excluding Physician Support Obligations), does not exceed the greater of
(1) 10% of the Company's Stockholders' Equity as of the date of incurrence
or (2) $10.0 million; PROVIDED that, in the case of clause (1) only, the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such Indebtedness is incurred would
have been at least 2.5 to 1, determined on a PRO FORMA basis (including a
PRO FORMA application of the net proceeds therefrom), as if such
Indebtedness had been incurred at the beginning of such four-quarter
period; and
(j) the incurrence by the Company of Indebtedness (in addition to
Indebtedness permitted by any other clause of this covenant) in an
aggregate principal amount at any time outstanding not to exceed
$400.0 million.
SECTION 4.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make any
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"),
unless (i) such Affiliate Transaction, is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that could have been obtained
in a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $5.0
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction was approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $15.0
million, an opinion as to the fairness to the Company or such Subsidiary of such
Affiliate Transaction from a financial point of view issued by an investment
banking firm of national standing; PROVIDED that (x) transactions or payments
pursuant to any employment arrangements or employee or director benefit plans
entered into by the Company or any of its Subsidiaries in the ordinary course of
business and consistent with the past practice of the Company or such
Subsidiary, (y) transactions
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between or among the Company and/or its Subsidiaries and (z) transactions
permitted under Section 4.07 hereof, in each case, shall not be deemed to be
Affiliate Transactions.
SECTION 4.11. LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(except Permitted Liens) on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom unless all payments due hereunder and under the Securities are secured
on an equal and ratable basis with the Obligations so secured until such time as
such Obligations are no longer secured by a Lien.
SECTION 4.12. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control Triggering Event, each
Holder of Securities shall have the right to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Securities pursuant to the offer described below (the "CHANGE OF
CONTROL OFFER") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any, thereon to
the date of purchase (the "CHANGE OF CONTROL PAYMENT") on a date that is not
more than 90 days after the occurrence of such Change of Control Triggering
Event (the "CHANGE OF CONTROL PAYMENT DATE").
Within 30 days following any Change of Control Triggering Event, the
Company shall mail, or at the Company's request the Trustee shall mail, a notice
of a Change of Control to each Holder (at its last registered address with a
copy to the Trustee and the Paying Agent) offering to repurchase the Securities
held by such Holder pursuant to the procedure specified in such notice. The
Change of Control Offer shall remain open from the time of mailing until the
close of business on the Business Day next preceding the Change of Control
Payment Date. The notice, which shall govern the terms of the Change of Control
Offer, shall contain all instructions and materials necessary to enable the
Holders to tender Securities pursuant to the Change of Control Offer and shall
state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.12 and that all Securities tendered will be accepted for
payment;
(2) the Change of Control Payment and the Change of Control
Payment Date, which date shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed;
(3) that any Security not tendered will continue to accrue
interest in accordance with the terms of this Indenture;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment, all Securities accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
any Change of Control Offer will be required to surrender the Security,
with the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Security completed, to the Company, a depositary, if
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appointed by the Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the Business Day next preceding
the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be, receives, not
later than the close of business on the Business Day next preceding the
Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the
Holder delivered for purchase, and a statement that such Xxxxxx is
withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control (including, but not limited to, information with respect to PRO
FORMA historical financial information after giving effect to such Change
of Control, information regarding the Person or Persons acquiring control
and such Person's or Persons' business plans going forward) and any other
information that would be material to a decision as to whether to tender a
Security pursuant to the Change of Control Offer.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment all Securities or portions thereof
properly tendered and not withdrawn pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Securities or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Securities so tendered the Change of
Control Payment for such Securities, and the Trustee shall promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new
Security equal in principal amount to any unpurchased portion of the Securities
surrendered, if any; PROVIDED that each such new Security shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
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 Securities as a result of a Change of Control Triggering Event.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Section 4.12 and Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; PROVIDED, HOWEVER, that the Company shall
not be required to preserve any such right, license or franchise, or the
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corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.14. LINE OF BUSINESS.
The Company shall not, and shall not permit any of its Subsidiaries
to, engage in any material extent in any business other than the ownership,
operation and management of Hospitals and Related Businesses.
SECTION 4.15. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES.
The Company shall not permit any Subsidiary, directly or indirectly,
to Guarantee or secure the payment of any other Indebtedness of the Company or
any of its Subsidiaries (except Indebtedness of a Subsidiary of such Subsidiary
or Physician Support Obligations) unless such Subsidiary simultaneously executes
and delivers a supplemental indenture to this Indenture, in substantially the
form attached hereto as Appendix B, providing for the Guarantee of the payment
of the Securities by such Subsidiary, which Guarantee shall be subordinated to
such Subsidiary's Guarantee of or pledge to secure such other Indebtedness to
the same extent as the Securities are subordinated to such other Indebtedness
under this Indenture. Notwithstanding the foregoing, such Guarantee by a
Subsidiary of the Securities shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon the sale or other
disposition, by way of merger or otherwise, to any Person not an Affiliate of
the Company, of all of the Company's stock in, or all or substantially all the
assets of, such Subsidiary. The foregoing provisions shall not be applicable to
any one or more Guarantees that otherwise would be prohibited of up to $25.0
million in aggregate principal amount of Indebtedness of the Company or its
Subsidiaries at any time outstanding.
SECTION 4.16. NO SENIOR SUBORDINATED DEBT.
The Company shall not incur any Indebtedness that is subordinate or
junior in right of payment to any Senior Debt and senior in any respect in right
of payment to the Securities.
ARTICLE 5
SUCCESSORS
SECTION 5.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless:
(i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
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organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the Obligations of the Company
under this Indenture and the Securities pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company or the entity or Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made (A) shall have a Consolidated Net Worth immediately after
the transaction equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction and (B) shall, at the time of
such transaction and after giving PRO FORMA effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel, covering clauses (i) through (iv) above, stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
The Trustee shall be entitled to conclusively rely upon such Officers'
Certificate and Opinion of Counsel.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation), and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF DEFAULT":
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(i) default for 30 days in the payment when due of interest on the
Securities, whether or not such payment is prohibited by the provisions of
Article 10 hereof;
(ii) default in payment when due of the principal of or premium, if
any, on the Securities, at maturity or otherwise, whether or not such
payment is prohibited by the provisions of Article 10 hereof;
(iii) failure by the Company to comply with the provisions of
Sections 4.07, 4.09 or 4.12 hereof;
(iv) failure by the Company to comply with any other covenant or
agreement in the Indenture or the Securities for the period and after the
notice specified below;
(v) any default that occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of
its Significant Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Significant Subsidiaries), whether such Indebtedness
or Guarantee exists on the Closing Date or is created after the Closing
Date, which default (a) constitutes a failure to pay principal at final
maturity or (b) results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness that has not been paid at final maturity or that has been so
accelerated, aggregates $25.0 million or more;
(vi) failure by the Company or any of its Significant Subsidiaries
to pay a final judgment or final judgments aggregating in excess of $25.0
million entered by a court or courts of competent jurisdiction against the
Company or any of its Significant Subsidiaries if such final judgment or
judgments remain unpaid or undischarged for a period (during which
execution shall not be effectively stayed) of 60 days after their entry;
(vii) the Company or any Significant Subsidiary thereof pursuant to
or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it
in an involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) admits in writing its inability generally to pay its
debts as the same become due; and
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
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(a) is for relief against the Company or any Significant
Subsidiary thereof in an involuntary case in which it is the debtor,
(b) appoints a Custodian of the Company or any Significant
Subsidiary thereof or for all or substantially all of the property of
the Company or any Significant Subsidiary thereof, or
(c) orders the liquidation of the Company or any
Significant Subsidiary thereof, and the order or decree remains
unstayed and in effect for 60 days.
The term "BANKRUPTCY LAW" means title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (iv) is not an Event of Default until the
Trustee notifies the Company in writing, or the Holders of at least 25% in
principal amount of the then outstanding Securities notify the Company and the
Trustee in writing, of the Default and the Company does not cure the Default
within 60 days after receipt of such notice. The written notice must specify
the Default, demand that it be remedied and state that the notice is a "NOTICE
OF DEFAULT."
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (vii) or (viii) of Section 6.01 hereof) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the then outstanding Securities by written notice to the Company and
the Trustee, may declare the unpaid principal of, premium, if any, and any
accrued and unpaid interest on all the Securities to be due and payable
immediately. Upon such declaration the principal, premium, if any, and interest
shall be due and payable immediately. If an Event of Default specified in
clause (vii) or (viii) of Section 6.01 hereof occurs with respect to the Company
or any Significant Subsidiary thereof such an amount shall IPSO FACTO become and
be immediately due and payable without further action or notice on the part of
the Trustee or any Holder.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Securities pursuant to
Section 3.07 hereof, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of the
Securities.
If an Event of Default occurs under this Indenture prior to June 1,
2003 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of such Securities prior to June 1, 2003 pursuant to Section 3.07
hereof, then a premium with respect thereto (expressed as a percentage of the
amount that would otherwise be due but for the provisions of this sentence)
shall also become and be immediately due and payable to the extent permitted by
law upon the acceleration of such Securities if such Event of Default occurs
during the twelve-month period beginning on June 1 of the years set forth below:
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Year Percentage
---- ----------
1998..................... %
1999..................... %
2000..................... %
2001..................... %
2002..................... %
Any determination regarding the primary purpose of any such action or
inaction, as the case may be, shall be made by and set forth in a resolution of
the Board of Directors (including the concurrence of a majority of the
independent directors of the Company then serving) delivered to the Trustee
after consideration of the business reasons for such action or inaction, other
than the avoidance of payment of such premium or prohibition on redemption. In
the absence of fraud, each such determination shall be final and binding upon
the Holders of Securities. Subject to Section 7.01 hereof, the Trustee shall be
entitled to rely on the determination set forth in any such resolutions
delivered to the Trustee.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Securities or to enforce the performance of any provision of the Securities
or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy 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. All remedies are cumulative
to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may on
behalf of the Holders of all of the Securities waive any existing Default or
Event of Default and its consequences under this Indenture except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on any Security. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders or
that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper which is not inconsistent with any such
direction.
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SECTION 6.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal, premium, if any, and interest on the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor for the whole amount of principal, premium, if any, and interest
remaining unpaid on the Securities and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
amounts due the Trustee under Section 7.07 hereof, including 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 is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to
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pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties which the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10 upon five Business Days prior notice to
the Company.
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 a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(i) If 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 their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(ii) Except during the continuance of an Event of Default known to
the Trustee:
(a) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are required to be furnished
to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(iii) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect of paragraph
(ii) of this Section;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(iv) Whether or not therein expressly so provided every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (i), (ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it against any loss,
liability or expense.
(vi) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Absent written instruction from the
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Company, the Trustee shall not be required to invest any such money. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(vii) The Trustee shall not be deemed to have knowledge of any
matter unless such matter is actually known to a Responsible Officer.
SECTION 7.02. RIGHTS OF TRUSTEE.
(i) The Trustee may conclusively rely upon any 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.
(ii) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. 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.
The Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(iii) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(iv) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Indenture. A permissive
right granted to the Trustee hereunder shall not be deemed an obligation to
act.
(v) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(vi) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture.
(vii) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, nor shall it
be accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, nor shall it be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Security, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each December 31 beginning with the December 31
following the Closing Date, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange or of delisting
thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
Company and Trustee shall agree in writing. 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 promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities, damages, claims or expenses incurred by it arising out of or in
connection with the acceptance of its duties and the administration of the
trusts under this Indenture, except as set forth below. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the
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claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Securities may remove the Trustee by
so notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or 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 promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
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
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amount of the then outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or Agent.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by federal or
state authority and shall have a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE SECURITIES.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, with respect to
the Securities, elect to have either
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Section 8.02 or 8.03 hereof be applied to all outstanding Securities subject to
compliance with the conditions set forth below in this Article 8. Subject to
such compliance, the application of Section 8.02 or 8.03 hereof shall occur on
the date of a New Lender Deposit (as defined below) or on the 91st day after the
date of a Company Deposit (as defined below), as the case may be.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Securities, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (i) and (ii) of this Section
8.02, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Securities 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,
premium, if any, and interest on such Securities when such payments are due,
(ii) the Company's obligations with respect to such Securities under Article 2
and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including, without limitation, the Trustee's rights
under Section 7.07 hereof, and the Company's obligations in connection therewith
and (iv) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof with respect to the Securities.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.14, 4.15, and 4.16 and Article 5 hereof with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Securities 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
Securities shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such 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 of Default under Section 6.01(iii)
hereof, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section
8.03, Sections 6.01(iv) through 6.01(vi) hereof shall not constitute Events of
Default.
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SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 hereof to the outstanding Securities:
(i) The Company shall irrevocably have deposited or caused to be
deposited (a "Company Deposit") or an entity other than the Company (a "New
Lender") shall irrevocably have deposited or caused to be deposited (a "New
Lender Deposit" and, together with the Company Deposit, the "Deposits")
with the Trustee (or another trustee satisfying the requirements of Section
7.10 who shall agree to comply with the provisions of this Article 8
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (a) cash in U.S.
Dollars in an amount, or (b) non-callable Government Securities that
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, cash in U.S. Dollars in an amount, or (c) a
combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, interest
and liquidated damages, if any, on such outstanding Securities on the
stated maturity date or the applicable redemption date, as the case may be.
(ii) Simultaneously with any Deposit, the Company shall have
delivered to the Trustee (or other qualifying trustee) a notice specifying
whether the Company is exercising its option under Section 8.02 or
Section 8.03 hereof or both and whether the Securities are being defeased
to maturity or to a particular redemption date.
(iii) In the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States confirming that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the Closing Date, 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 outstanding Securities
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.
(iv) In the case of an election under Section 8.03 hereof before
the date that is one year prior to the final maturity of the Securities,
the Company shall have delivered to the Trustee an Opinion of Counsel in
the United States confirming that the Holders of the outstanding Securities
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.
(v) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing (a) on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of
funds to be applied to such deposit) or, (b) in the case of a
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Company Deposit, insofar as Section 6.01(vii) or 6.01(viii) hereof is
concerned, at any time within 90 days after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(vi) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound (other than a breach, violation or default resulting
from the borrowing of funds to be applied to such deposit).
(vii) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (a) on and after the date of the New Lender
Deposit or after the 90th day following the Company Deposit, as the case
may be, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and (b) all conditions precedent provided for relating to
either the Legal Defeasance under Section 8.02 hereof or the Covenant
Defeasance under Section 8.03 hereof (as the case may be) have been
complied with as contemplated by this Section 8.04.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 8.02 or 8.03 hereof was not made by the Company with
the intent of preferring the Holders of the Securities over the other
creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others.
(ix) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the Legal Defeasance under Section 8.02 hereof or the Covenant
Defeasance under Section 8.03 hereof (as the case may be) have been
complied with as contemplated by this Section 8.04.
(x) In the case of a New Lender Deposit, the Company shall have
delivered to the Trustee an Officers' Certificate stating that (a) the New
Lender made the New Lender Deposit under an agreement (the "New Loan
Agreement") with the Company; (b) under the New Loan Agreement, the New
Lender Deposit constitutes an unsecured loan (the "New Loan") by the New
Lender to the Company; (c) the maturity date of the New Loan is later than
the 90th day after the date of the New Lender Deposit; and (d) the New Loan
Agreement prohibits prepayment of the New Loan on or before the 90th day
after the date of the New Lender Deposit, except in the event of a default
thereunder, and the remaining terms of the New Loan Agreement (including
the interest rate on the New Loan) are consistent with ordinary business
practice.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all
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sums due and to become due thereon in respect of principal, premium, if any,
interest and liquidated damages, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(i) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, interest or liquidated damages, if any, has
become due and payable shall be paid to the Company on its written request or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the NEW YORK
TIMES and THE WALL STREET JOURNAL National edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes
any payment of principal of, premium, if any, interest or liquidated damages, if
any, on any Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Security to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
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AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iii) to provide for any supplemental indenture required pursuant to
Section 4.15 hereof;
(iv) to provide for the assumption of the Company's obligations to
Holders of Securities in the case of a merger, consolidation or sale of
assets pursuant to Article 5 hereof;
(v) to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect
the legal rights hereunder of any such Holder; or
(vi) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 9.06
hereof, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Except as provided in Section 9.01 and the next succeeding paragraphs,
this Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for such Securities), and any existing default or compliance with
any provision of this Indenture or the Securities may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for such Securities).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own
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rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 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 or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities. Without the consent of each Holder affected, however, an amendment
or waiver may not (with respect to any Security held by a non-consenting
Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Security or alter the provisions with respect to the redemption of the
Securities (other than provisions relating to the covenants in Section 4.12
hereof);
(iii) reduce the rate of or change the time for payment of interest
on any Security;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a
majority in aggregate principal amount thereof and a waiver of the payment
default that resulted from such acceleration);
(v) make any Security payable in money other than that stated in
the Securities;
(vi) make any change in Section 6.04 or 6.07 hereof;
(vii) waive a redemption payment with respect to any Security (other
than a payment required under Section 4.12 hereof); or
(viii) make any change in this sentence of this Section 9.02.
Notwithstanding the foregoing, any amendment to the provisions of
Article 10 hereof shall require the consent of the Holders of at least 75% in
aggregate principal amount of the Securities then outstanding if such amendment
would adversely affect the rights of Holders of Securities.
SECTION 9.03. COMPLIANCE WITH XXX.
Every amendment to this Indenture or the Securities- shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Xxxxxx's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security if the Trustee receives written notice of revocation before the date
the waiver or amendment becomes effective. An amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders must consent to such amendment or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 2.06 hereof or (ii) such other date as the Company shall
designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company in exchange for
all Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 7.01, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or Supplemental Indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it shall be valid and
binding upon the Company in accordance with its terms. The Company may not sign
an amendment or supplemental indenture until the Board of Directors approves it.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Security agrees,
that the Indebtedness evidenced by the Security is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full of all Senior Debt (whether outstanding on the Closing
Date or created, incurred, assumed or Guaranteed after the Closing Date), and
that the subordination is for the benefit of the holders of Senior Debt.
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SECTION 10.02. CERTAIN DEFINITIONS.
"Designated Senior Debt" means (i) so long as any Obligations are
outstanding under the Existing Credit Facility, such Obligations and (ii)
thereafter, any other Senior Debt permitted hereunder the principal amount of
which is $100.0 million or more and that has been designated by the Company as
"Designated Senior Debt".
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Debt.
"Senior Debt" means (i) Indebtedness under the Existing Credit
Facility, (ii) the Senior Notes, the Existing Senior Notes and any other
Indebtedness permitted to be incurred by the Company under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities and (iii) all Obligations with respect to any of the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt shall not include (v) the Securities, the Company's untendered 2005 Senior
Subordinated Notes, the Company's 2007 Senior Subordinated Notes and the 2005
Exchangeable Subordinated Notes, (w) any liability for federal, state, local or
other taxes owed or owing by the Company, (x) any Indebtedness of the Company to
any of its Subsidiaries or other Affiliates, (y) any trade payables or (z) any
Indebtedness that is incurred in violation of this Indenture.
A distribution may consist of cash, securities or other property, by
set-off or otherwise.
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities, the holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of such Senior Debt (including
interest accruing after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt, whether or not allowed or allowable as
a claim in such proceeding) before the Holders shall be entitled to receive any
payment with respect to the Securities, and until all Obligations with respect
to Senior Debt are paid in full, any distribution to which the Holders would be
entitled shall be made to the holders of Senior Debt (except (a) that Holders
may receive securities that (i) are subordinated at least to the same extent as
the Securities to Senior Debt and any securities issued in exchange for Senior
Debt, (ii) are unsecured (except to the extent the Securities are secured),
(iii) are not Guaranteed by any Subsidiary of the Company (except to the extent
the Securities are so Guaranteed), and (iv) have a Weighted Average Life to
Maturity and final maturity that are not shorter than the Weighted Average Life
to Maturity of the Securities or any securities issued to holders of Senior Debt
under the Existing Credit Facility pursuant to a plan of reorganization or
readjustment, and (b) payments made from the trust described in Section 8.04).
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment upon or in respect of the
Securities (except in securities that (i) are subordinated to at least the same
extent as the Securities to Senior Debt and any securities issued in exchange
for Senior Debt, (ii) are unsecured (except to the extent the Securities are
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secured), (iii) are not Guaranteed by any Subsidiary of the Company (except
to the extent the Securities are so Guaranteed), and (iv) have a Weighted
Average Life to Maturity and final maturity that are not shorter than the
Weighted Average Life to Maturity of the Securities or any securities issued to
Holders of Senior Debt under the Existing Credit Facility pursuant to a plan or
reorganization or readjustment or from the trust described in Section 8.04
hereof) if;
(i) a default in the payment of the principal of, premium, if any
or interest on Designated Senior Debt occurs and is continuing beyond any
applicable period of grace in the agreement, indenture or other document
governing such Designated Senior Debt; or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt as to
which such default relates to accelerate its maturity and the Trustee receives a
notice of such default (a "Payment Blockage Notice"), for so long as any
Obligations are outstanding under the Existing Credit Facility, from the
Representative thereunder and, thereafter, from the holders or Representative of
any Designated Senior Debt. No new period of payment blockage may be commenced
within 360 days after the receipt by the Trustee of any prior Payment Blockage
Notice. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on the Securities:
(1) in the case of a payment default, upon the date on which such
default is cured or waived, and
(2) in the case of a nonpayment default referred to in Section
10.04(ii) hereof, the earlier of the date on which such nonpayment default is
cured or waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Senior Debt
has been accelerated.
SECTION 10.05. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Securities at a time when the Trustee or
such Holder, as applicable, has actual knowledge that such payment is prohibited
by Section 10.04 hereof, such payment shall be held by the Trustee or such
Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which such Senior Debt may have been issued, as
their respect interests may appear, for application for the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
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With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, 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, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 10.07. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
as provided in this Article.
SECTION 10.08. SUBROGATION.
After all Senior Debt is paid in full and until the Securities are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Securities) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 10 to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on the Securities.
SECTION 10.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of or
interest on a Security on the due date, the failure is still a Default or Event
of Default.
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
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No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or any Holder or by the failure of the Company or
any Holder to comply with this Indenture.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
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 10.
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Securities, unless the Trustee shall have received at
its Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Securities to violate this Article 10. Only the Company or
a Representative may give the notice. Nothing to this Article 10 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes.
SECTION 10.14. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
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If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first class
mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Treasurer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Unless otherwise set forth above, any notice or communication to a
Holder shall be mailed by first class mail, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
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If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 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 (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.
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 a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been satisfied; PROVIDED, HOWEVER,
that with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
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The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 11.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS.
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of the Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
SECTION 11.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.10. GOVERNING LAW.
The internal law of the State of New York, shall govern and be used to
construe this Indenture and the Securities, without regard to the conflict of
laws provisions thereof.
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 11.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be
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affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 11.14. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
-57-
SIGNATURES
Dated as of May 21, 1998 XXXXX HEALTHCARE CORPORATION
By:
---------------------------
Name:
Title:
Attest:
---------------------------
Xxxxxxx X. Xxxxxx
Dated as of May 21, 1998 THE BANK OF NEW YORK,
as Trustee
By:
---------------------------
Name:
Title:
Attest:
---------------------------
By:
------------------------
Authorized Signatory
-58-
APPENDIX A
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT
TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Offer" means the exchange and issuance by the Company,
pursuant to the Registration Rights Agreement, of a principal amount of Exchange
Securities equal to the outstanding principal amount of Initial Securities that
are tendered by the Holders in connection with such exchange and issuance.
"Exchange Securities" means the 8 1/8% Senior Subordinated Notes due
2008 to be issued pursuant to this Indenture in connection with an Exchange
Offer pursuant to the Registration Rights Agreement.
"Initial Purchasers" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Salomon Brothers Inc,
Deutsche Xxxxxx Xxxxxxxx Inc. and BancAmerica Xxxxxxxxx Xxxxxxxx.
"Initial Securities" means the 8 1/8% Senior Subordinated Notes due
2008, issued under this Indenture on or about the date hereof.
"Purchase Agreement" means the Purchase Agreement, dated May 8, 1998,
among the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
of the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated May 21, 1998, among the Company and the Initial Purchasers.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the registration statement, if
any, filed by the Company, in connection with the offer and sale of Initial
Securities, pursuant to the Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.3(b) hereto.
1.2 OTHER DEFINITIONS
Defined in
Term Section:
---- ----------
"Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
"Regulation S" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
"Rule 144A". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
2. THE SECURITIES
2.1 FORM AND DATING
The Initial Securities are being offered and sold by the Company
pursuant to the Purchase Agreement. Initial Securities offered and sold to a
QIB in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global Securities in definitive, fully registered form
without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit 1 hereto (each, a "Global Security"),
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York, New York office, as
custodian for the Depositary (or with such other custodian as the Depositary may
direct), and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee.
2.2 AUTHENTICATION.
The Trustee shall authenticate and deliver: (1) Initial Securities for
original issue in an aggregate principal amount of $1,005,000,000 and (2)
Exchange Securities for issue only in an Exchange Offer pursuant to the
Registration Rights Agreement, for a like principal amount of Initial
Securities, in each case pursuant to Section 2.03 of this Indenture. The Company
Order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities or Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$1,005,000,000 except as provided in Section 2.09 of this Indenture.
2.3 LEGEND. (i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security (and all Securities issued in exchange therefor or
in substitution thereof) shall bear a legend in substantially the following
form:
-2-
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS
NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF
THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE, EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE HOLDER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING RESTRICTIONS."
-3-
(ii) Prior to any sale or transfer of a Transfer Restricted
Security, the Holder must complete the Assignment Form and present it to the
Registrar. Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Security)
pursuant to Rule 144 under the Securities Act, in the case of any Transfer
Restricted Security that is represented by a Global Security, the Registrar
shall permit the Holder thereof to exchange such Transfer Restricted Security
for a Security in certificated or global form that does not bear the legend set
forth above and rescind any restriction on the transfer of such Transfer
Restricted Security, if the Holder certifies in writing to the Registrar that
its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities during the period
of the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to legends on such Initial
Security will cease to apply, and an Initial Security in certificated or global
form that does not bear the legend set forth above will be available to the
transferee of the Holder of such Initial Securities upon exchange of such
transferring Holder's certificated Initial Security or directions to transfer
such Holder's interest in the Global Security, as applicable.
(iv) Upon the consummation of an Exchange Offer with respect to the
Initial Securities pursuant to which Holders of such Initial Securities are
offered Exchange Securities in exchange for their Initial Securities, Exchange
Securities in certificated or global form without restrictive legends, in the
form set forth in Exhibit 2 hereto, will be available to Holders that exchange
such Initial Securities in such Exchange Offer. Initial Securities not
exchanged for Exchange Securities shall continue to bear the legend set forth in
Exhibit 1 hereto.
-4-
EXHIBIT 1
to
APPENDIX A
(Face of Initial Security)
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS
NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF
THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE HOLDER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
8 1/8% Senior Subordinated Note
due December 1, 2008
CUSIP:
No. $____________
XXXXX HEALTHCARE CORPORATION
promises to pay to
______________________________________________________________
or its registered assigns, the principal sum of_______________ Dollars on
December 1, 2008.
Interest Payment Dates: June 1 and December 1, commencing December 1, 1998.
Record Dates: May 15 and November 15 (whether or not a Business Day).
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
XXXXX HEALTHCARE CORPORATION
By:
-------------------------
(SEAL)
Dated: ,
--------- ----
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture:
The Bank of New York, as Trustee
By:
-------------------------------
Authorized Signatory
-2-
(Back of Initial Security)
8 1/8% Senior Subordinated Note
due December 1, 2008
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. INTEREST/LIQUIDATED DAMAGES. Xxxxx Healthcare Corporation, a Nevada
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate and in the manner specified below.
The Company shall pay interest in cash on the principal amount of this
Security at the rate per annum of 8 1/8%. The Company shall pay interest
semiannually in arrears on June 1 and December 1 of each year, commencing
December 1, 1998 to Holders of record on the immediately preceding May 15 and
November 15, respectively, or if any such date of payment is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date").
However, (i) if the Company fails to file a registration statement
(the "Exchange Offer Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), registering a security substantially
identical to this Security pursuant to an exchange offer (the "Exchange Offer")
upon the terms and conditions set forth in the Registration Rights Agreement
with the Commission on or prior to the 30th day after the date of the filing of
the Company's Annual Report on Form 10-K for the year ending May 31, 1998 (the
"Filing Date"), (ii) if the Exchange Offer Registration Statement is not
declared effective by the Commission on or prior to the 90th day after the
Filing Date, (iii) if the Exchange Offer is not consummated on or before the
30th business day after the Exchange Offer Registration Statement is declared
effective, (iv) if the Company is obligated to file the registration statement
under the Securities Act registering this Security for resale (the "Shelf
Registration Statement") and the Company fails to file the Shelf Registration
Statement with the Commission on or prior to the 30th day after such filing
obligation arises, (v) if the Company is obligated to file a Shelf Registration
Statement and the Shelf Registration Statement is not declared effective on or
prior to the 60th day after the obligation to file a Shelf Registration
Statement arises, or (vi) if the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, is declared effective but
thereafter ceases to be effective or useable, for such time of non-effectiveness
or non-usability in connection with resales of the Transfer Restricted
Securities (as defined below) (each, a "Registration Default"), the Company
agrees to pay to each Holder of Transfer Restricted Securities affected thereby
liquidated damages ("Liquidated Damages") in an amount equal to $0.05 per week
per $1,000 in principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default continues
for the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the Liquidated Damages shall increase by an
additional $0.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Liquidated Damages of $0.35
per week per $1,000 in principal amount of Transfer Restricted Securities. The
Company shall not be required to pay Liquidated Damages for more than one
Registration Default at any given time. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages will cease.
All accrued Liquidated Damages shall be paid by the Company to Holders
entitled thereto by wire transfer to the accounts specified by them or by
mailing checks to their registered address if no such accounts have been
specified.
-3-
Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Securities. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 1% per annum in excess of the
interest rate then applicable to the Securities; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder hereof must
surrender this Security 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.
Principal, premium, if any, and interest shall be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, payment of interest may be made by
check mailed to the Holder's registered address. Notwithstanding the foregoing,
all payments with respect to Securities, the Holders of which have given
appropriate written wire transfer instructions, on or before the relevant record
date, to the Paying Agent shall be made by wire transfer of immediately
available funds to the accounts specified by such Holders.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
or co-registrar without prior notice to any Holder. The Company and any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture,
dated as of May 21, 1998 (the "Indenture"), between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in effect on the
date of the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such act for a statement of such
terms. The terms of the Indenture shall govern any inconsistencies between the
Indenture and the Securities. The Securities are unsecured general obligations
of the Company. The Securities are limited to $1,005,000,000 in aggregate
principal amount.
5. OPTIONAL REDEMPTION. On or after June 1, 2003, the Company may redeem
all or any portion of the Securities at a redemption price (expressed as a
percentage of the principal amount thereof), as set forth in the immediately
succeeding paragraph, plus accrued and unpaid interest, if any, to the
redemption date.
The redemption price as a percentage of the principal amount shall be
as follows, if the Securities are redeemed during the twelve-month period
beginning on June 1 of the following years:
Year Percentage
---- ----------
2003 104.063%
2004 102.708%
2005 101.354%
--------
--------
2006 and thereafter 100.000%
-4-
6. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days and not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at its registered address. Securities may be redeemed
in part but only in whole multiples of $1,000, unless all of the Securities held
by a Holder are to be redeemed. On and after the redemption date, interest
ceases to accrue on Securities or portions of them called for redemption.
7. MANDATORY REDEMPTION. Subject to the Company's obligation to make an
offer to repurchase Securities under certain circumstances pursuant to
Section 4.12 of the Indenture (as described in paragraph 8 below), the Company
shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Securities.
8. REPURCHASE AT OPTION OF HOLDER. If there is a Change of Control
Triggering Event, the Company shall offer to repurchase on the Change of Control
Payment Date all outstanding Securities at 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon to the Change of Control
Payment Date. Holders that are subject to an offer to purchase shall receive a
Change of Control Offer from the Company prior to any related Change of Control
Payment Date and may elect to have such Securities purchased by completing the
form entitled "Option of Holder to Elect Purchase" appearing below.
9. SUBORDINATION. The Securities are subordinated to Senior Debt (as
defined in the Indenture), which includes any Indebtedness arising under or in
connection with (a) the Existing Credit Facility, (b) the Senior Notes, the
Existing Senior Notes and any other Indebtedness permitted by the Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the
Securities and (c) all Obligations of the Company with respect to any of the
foregoing. To the extent provided in the Indenture, Senior Debt must be paid
before the Securities may be paid. The Company agrees, and each Holder by
accepting a Security consents and agrees, to the subordination provided in the
Indenture and authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons, and in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Securities between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Security and for all other purposes
whatsoever, whether or not this Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary. The
registered Holder of a Security shall be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVERS. Except as provided in the next
succeeding paragraphs, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a tender offer or exchange offer for such Securities), and any
existing default or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents obtained
in connection with a tender offer or exchange offer for such Securities).
-5-
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Security held by a non-consenting Holder): (i)
reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the principal of or change the
fixed maturity of any Security or alter the provisions with respect to the
redemption of the Securities (other than provisions relating to Section 4.12 of
the Indenture); (iii) reduce the rate of or change the time for payment of
interest on any Security; (iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Securities,
(except a rescission of acceleration of the Securities by the Holders of at
least a majority in aggregate principal amount thereof and a waiver of the
payment default that resulted from such acceleration); (v) make any Security
payable in money other than that stated in the Securities; (vi) make any change
in the provisions of the Indenture relating to waivers of past Defaults or the
rights of Holders of Securities to receive payments of principal of or premium,
if any, or interest on the Securities; (vii) waive a redemption payment with
respect to any Security (other than a payment required under Section 4.12 of the
Indenture); or (viii) make any change in the foregoing amendment and waiver
provisions.
Any amendment to the provisions of Article 10 of the Indenture shall
require the consent of the Holders of at least 75% in principal amount of the
Securities then outstanding if such amendment would adversely affect the rights
of the Holders of the Securities.
Notwithstanding the foregoing, without the consent of any Holder of
Securities, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for any supplemental indenture required pursuant to Section 4.15 of
the Indenture, to provide for the assumption of the Company's obligations to
Holders of Securities in the case of a merger, consolidation or sale of assets
pursuant to Article 5 of the Indenture, to make any change that would provide
any additional rights or benefits to the Holders of the Securities or that does
not adversely affect the legal rights under the Indenture of any such Holder, or
to comply with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA.
13. DEFAULTS AND REMEDIES. Events of Default under the Indenture include:
(i) a default for 30 days in the payment when due of interest on the Securities,
whether or not such payment is prohibited by the provisions of Article 10 of the
Indenture; (ii) a default in payment when due of the principal of or premium, if
any, on the Securities, at maturity or otherwise, whether or not such payment is
prohibited by the provisions of Article 10 of the Indenture; (iii) a failure by
the Company to comply with the provisions of Sections 4.07, 4.09 or 4.12 of
Indenture; (iv) a failure by the Company for 60 days after notice to comply with
any of its other agreements in the Indenture or the Securities; (v) any default
that occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Significant Subsidiaries (or the payment
of which is Guaranteed by the Company or any of its Significant Subsidiaries),
whether such Indebtedness or Guarantee exists on the date of the Indenture or is
created after the date of the Indenture, which default (a) constitutes a failure
to pay principal at final maturity or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness that has not been paid at final maturity or that has been so
accelerated, aggregates $25.0 million or more; (vi) failure by the Company or
any of its Significant Subsidiaries to pay a final judgment or final judgments
aggregating in excess of $25.0 million, which judgment or judgments are not
paid, discharged or stayed for a period of 60 days; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries.
-6-
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
by written notice to the Company and the Trustee, may declare all the Securities
to be due and payable immediately. Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
with respect to the Company or any of its Significant Subsidiaries, all
outstanding Securities shall become due and payable without further action or
notice. Holders of the Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Securities notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in the
Holders' interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Securities pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Securities. If an Event of Default occurs under
the Indenture prior to June 1, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of such Securities prior to June 1,
2003, then the premium specified in Section 6.02 of the Indenture shall also
become immediately due and payable to the extent permitted by law upon the
acceleration of such Securities.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may on
behalf of the Holders of all of the Securities waive any existing Default or
Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Securities.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
The above description of Events of Default and remedies is qualified
by reference, and subject in its entirety, to the more complete description
thereof contained in the Indenture.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to incur additional indebtedness
and issue preferred stock, pay dividends or make other distributions, repurchase
Equity Interests or subordinated indebtedness, create certain liens, enter into
certain transactions with affiliates, issue or sell Equity Interests of the
Company's Subsidiaries, issue Guarantees of Indebtedness by the Company's
Subsidiaries and enter into certain mergers and consolidations.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
16. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS. No director, officer, employee, incorporator or shareholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or
-7-
by reason of, such obligations or their creation. Each Holder of Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
17. AUTHENTICATION. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder 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).
19. 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 Securities and has directed the Trustee to
use CUSIP numbers as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the Securities and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
20. GOVERNING LAW. The internal laws of the State of New York shall
govern and be used to construe the Indenture and the Securities, without regard
to conflict of laws provisions thereof.
-8-
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received
(I) or (we) hereby sell, assign and transfer this Security to
_____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and do hereby irrevocably constitute and appoint ____________________________
Attorney to transfer this Security on the books of the Company with full power
of substitution in the premises.
_____________________________________________________________________________
Date:
----------------------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the face of
this Security)
Signature Guarantee.(*)
--------------------
(*)NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) the New York Stock
Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
-9-
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Company or any Subsidiary thereof; or
(2) / / to a person whom the Holder reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) purchasing for its own account or for the account
of a qualified institutional buyer in compliance with Rule 144A
under the Securities Act; or
(3) / / outside the United States in an offshore transaction in
compliance with Rule 903 or Rule 904 under the Securities Act; or
(4) / / pursuant to the exemption from registration provided by Rule 144
under the Securities Act.
(5) / / pursuant to an effective registration statement under the
Securities Act; or
(6) / / in accordance with another exemption from the registration
requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered holder thereof; PROVIDED, HOWEVER, that if box
(6) is checked, the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions, certifications and other
information as 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.
-----------------------------
Signature
Signature Guarantee:
---------------------------- -----------------------------
Signature must be guaranteed Signature
-10-
_______________________________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security 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 of
1933, 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:
-------------------- ---------------------
Signature
-11-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 4.12 of the Indenture, check the
box below:
Section 4.12
(Change of Control)
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.12 of the Indenture, state the amount you elect to have
purchased:
$ _______________
Date:
------------
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.(*)
---------------------
(*) NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) the New York Stock
Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
-12-
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase
in Principal in Principal Principal amount of this Signature of authorized
Date of Amount of this Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Depositary
-13-
EXHIBIT 2
to
APPENDIX A
(Face of Exchange Security)
8 1/8% Senior Subordinated Note
due December 1, 2008
CUSIP:
No. $____________
XXXXX HEALTHCARE CORPORATION
promises to pay to
--------------------------------------------------------------
or its registered assigns, the principal sum of_______________ Dollars on
December 1, 2008.
Interest Payment Dates: June 1 and December 1, commencing December 1, 1998.
Record Dates: May 15 and November 15 (whether or not a Business Day).
XXXXX HEALTHCARE CORPORATION
By:
-------------------------
(SEAL)
Dated: ,
------------ ----
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture:
The Bank of New York, as Trustee
By:
---------------------------
Authorized Signatory
(Back of Exchange Security)
8 1/8% Senior Subordinated Note
due December 1, 2008
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. INTEREST. Xxxxx Healthcare Corporation, a Nevada corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate and in the manner specified below.
The Company shall pay interest in cash on the principal amount of this
Security at the rate per annum of 8 1/8%. The Company shall pay interest
semiannually in arrears on June 1 and December 1 of each year, commencing
December 1, 1998 to Holders of record on the immediately preceding May 15 and
November 15, respectively, or if any such date of payment is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date").
Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Securities. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 1% per annum in excess of the
interest rate then applicable to the Securities; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder hereof must
surrender this Security 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.
Principal, premium, if any, and interest shall be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, payment of interest may be made by
check mailed to the Holder's registered address. Notwithstanding the foregoing,
all payments with respect to Securities, the Holders of which have given
appropriate written wire transfer instructions, on or before the relevant record
date, to the Paying Agent shall be made by wire transfer of immediately
available funds to the accounts specified by such Holders.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
or co-registrar without prior notice to any Holder. The Company and any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture,
dated as of May 21, 1998 (the "Indenture"), between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in effect on the
date of the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such act for a statement of such
terms. The terms of the Indenture shall govern any inconsistencies between the
Indenture and the
-2-
Securities. The Securities are unsecured general obligations of the Company.
The Securities are limited to $1,005,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION. On or after June 1, 2003, the Company may redeem
all or any portion of the Securities at a redemption price (expressed as a
percentage of the principal amount thereof), as set forth in the immediately
succeeding paragraph, plus accrued and unpaid interest, if any, to the
redemption date.
The redemption price as a percentage of the principal amount shall be
as follows, if the Securities are redeemed during the twelve-month period
beginning on June 1 of the following years:
Year Percentage
---- ----------
2003 104.063%
2004 102.708%
2005 101.354%
--------
--------
2006 and thereafter 100.000%
6. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days and not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at its registered address. Securities may be redeemed
in part but only in whole multiples of $1,000, unless all of the Securities held
by a Holder are to be redeemed. On and after the redemption date, interest
ceases to accrue on Securities or portions of them called for redemption.
7. MANDATORY REDEMPTION. Subject to the Company's obligation to make an
offer to repurchase Securities under certain circumstances pursuant to
Section 4.12 of the Indenture (as described in paragraph 8 below), the Company
shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Securities.
8. REPURCHASE AT OPTION OF HOLDER. If there is a Change of Control
Triggering Event, the Company shall offer to repurchase on the Change of Control
Payment Date all outstanding Securities at 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon to the Change of Control
Payment Date. Holders that are subject to an offer to purchase shall receive a
Change of Control Offer from the Company prior to any related Change of Control
Payment Date and may elect to have such Securities purchased by completing the
form entitled "Option of Holder to Elect Purchase" appearing below.
9. SUBORDINATION. The Securities are subordinated to Senior Debt (as
defined in the Indenture), which includes any Indebtedness arising under or in
connection with (a) Existing Credit Facility, (b) the Senior Notes, the Existing
Senior Notes and any other Indebtedness permitted by the Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Securities and
(c) all Obligations of the Company with respect to any of the foregoing. To the
extent provided in the Indenture, Senior Debt must be paid before the Securities
may be paid. The Company agrees, and each Holder by accepting a Security
consents and agrees, to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons, and in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any
-3-
taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Securities between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Security and for all other purposes
whatsoever, whether or not this Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary. The
registered Holder of a Security shall be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVERS. Except as provided in the next
succeeding paragraphs, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a tender offer or exchange offer for such Securities), and any
existing default or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents obtained
in connection with a tender offer or exchange offer for such Securities).
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Security held by a non-consenting Holder): (i)
reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the principal of or change the
fixed maturity of any Security or alter the provisions with respect to the
redemption of the Securities (other than provisions relating to Section 4.12 of
the Indenture); (iii) reduce the rate of or change the time for payment of
interest on any Security; (iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Securities,
(except a rescission of acceleration of the Securities by the Holders of at
least a majority in aggregate principal amount thereof and a waiver of the
payment default that resulted from such acceleration); (v) make any Security
payable in money other than that stated in the Securities; (vi) make any change
in the provisions of the Indenture relating to waivers of past Defaults or the
rights of Holders of Securities to receive payments of principal of or premium,
if any, or interest on the Securities; (vii) waive a redemption payment with
respect to any Security (other than a payment required under Section 4.12 of the
Indenture); or (viii) make any change in the foregoing amendment and waiver
provisions.
Any amendment to the provisions of Article 10 of the Indenture shall
require the consent of the Holders of at least 75% in principal amount of the
Securities then outstanding if such amendment would adversely affect the rights
of the Holders of the Securities.
Notwithstanding the foregoing, without the consent of any Holder of
Securities, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for any supplemental indenture required pursuant to Section 4.15 of
the Indenture, to provide for the assumption of the Company's obligations to
Holders of Securities in the case of a merger, consolidation or sale of assets
pursuant to Article 5 of the Indenture, to make any change that would provide
any additional rights or benefits to the Holders of the Securities or that does
not adversely affect the legal rights under the Indenture of any such Holder, or
to comply with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA.
-4-
13. DEFAULTS AND REMEDIES. Events of Default under the Indenture include:
(i) a default for 30 days in the payment when due of interest on the Securities,
whether or not such payment is prohibited by the provisions of Article 10 of the
Indenture; (ii) a default in payment when due of the principal of or premium, if
any, on the Securities, at maturity or otherwise, whether or not such payment is
prohibited by the provisions of Article 10 of the Indenture; (iii) a failure by
the Company to comply with the provisions of Sections 4.07, 4.09 or 4.12 of
Indenture; (iv) a failure by the Company for 60 days after notice to comply with
any of its other agreements in the Indenture or the Securities; (v) any default
that occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Significant Subsidiaries (or the payment
of which is Guaranteed by the Company or any of its Significant Subsidiaries),
whether such Indebtedness or Guarantee exists on the date of the Indenture or is
created after the date of the Indenture, which default (a) constitutes a failure
to pay principal at final maturity or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness that has not been paid at final maturity or that has been so
accelerated, aggregates $25.0 million or more; (vi) failure by the Company or
any of its Significant Subsidiaries to pay a final judgment or final judgments
aggregating in excess of $25.0 million, which judgment or judgments are not
paid, discharged or stayed for a period of 60 days; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
by written notice to the Company and the Trustee, may declare all the Securities
to be due and payable immediately. Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
with respect to the Company or any of its Significant Subsidiaries, all
outstanding Securities shall become due and payable without further action or
notice. Holders of the Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Securities notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in the
Holders' interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Securities pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Securities. If an Event of Default occurs under
the Indenture prior to June 1, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of such Securities prior to June 1,
2003, then the premium specified in Section 6.02 of the Indenture shall also
become immediately due and payable to the extent permitted by law upon the
acceleration of such Securities.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may on
behalf of the Holders of all of the Securities waive any existing Default or
Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Securities.
-5-
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
The above description of Events of Default and remedies is qualified
by reference, and subject in its entirety, to the more complete description
thereof contained in the Indenture.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to incur additional indebtedness
and issue preferred stock, pay dividends or make other distributions, repurchase
Equity Interests or subordinated indebtedness, create certain liens, enter into
certain transactions with affiliates, issue or sell Equity Interests of the
Company's Subsidiaries, issue Guarantees of Indebtedness by the Company's
Subsidiaries and enter into certain mergers and consolidations.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
16. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS. No director, officer, employee, incorporator or shareholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
17. AUTHENTICATION. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder 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).
19. 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 Securities and has directed the Trustee to
use CUSIP numbers as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the Securities and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
-6-
20. GOVERNING LAW. The internal laws of the State of New York shall
govern and be used to construe the Indenture and the Securities, without regard
to conflict of laws provisions thereof.
-7-
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received
(I) or (we) hereby sell, assign and transfer this Security to
_____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and do hereby irrevocably constitute and appoint ____________________________
Attorney to transfer this Security on the books of the Company with full power
of substitution in the premises.
_____________________________________________________________________________
Date:
----------------------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the face of
this Security)
Signature Guarantee.*
--------------------
*NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) the New York Stock
Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
-8-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 4.12 of the Indenture, check the
box below:
/ / Section 4.12
(Change of Control)
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.12 of the Indenture, state the amount you elect to have
purchased:
$ _______________
Date:
------------
Your Signature:
-------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.*
--------------------
*NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) the New York Stock
Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
-9-
Appendix B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, between __________________ (the "Guarantor"), a subsidiary of
Xxxxx Healthcare Corporation (or its successor), a Nevada corporation (the
"Company"), and The Bank of New York, as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of May 21, 1998, providing for
the issuance of an aggregate principal amount of $1,000,000,000 of 8 1/8% Senior
Subordinated Notes due 2008 (the "Securities");
WHEREAS, Section 4.15 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall guarantee the payment of the Securities pursuant to a Guarantee on the
terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Securities or the Obligations
of the Company hereunder and thereunder, that: (a) the principal of, premium, if
any, and interest on the Securities will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal, premium, if any, and (to the extent permitted by law)
interest on any interest on the Securities and all other payment Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or
any of such other payment Obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, redemption or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason the Guarantor
shall be obligated to pay the same immediately. An Event of Default under the
Indenture or the Securities shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities to accelerate the
Obligations of the Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Company. The Guarantor hereby agrees that its
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or the Indenture, the absence of
any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenant that this Guarantee will not be discharged
except by complete performance of the Obligations contained in the Securities
and the Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantor, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantor, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor agrees that it shall not be entitled to, and
hereby waives, any right of subrogation in relation to the Holders in respect of
any Obligations guaranteed hereby. The Guarantor further agrees that, as
between the Guarantor, on one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6 of the Indenture, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of this
Guarantee.
3. EXECUTION AND DELIVERY OF GUARANTEE. To evidence its Guarantee set
forth in Section 2, the Guarantor hereby agrees that a notation of such
Guarantee substantially in the form of EXHIBIT 1 shall be endorsed by an officer
of such Guarantor on each Security authenticated and delivered by the Trustee
and that this Supplemental Indenture shall be executed on behalf of such
Guarantor, by manual or facsimile signature, by its President or one of its Vice
Presidents.
The Guarantor hereby agrees that its Guarantee set forth in Section 2
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee.
If an Officer whose signature is on this Supplemental Indenture or on
the Guarantee no longer holds that office at the time the Trustee authenticates
the Security on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 of the Indenture,
nothing contained in this Supplemental Indenture or in the Securities shall
prevent any consolidation or merger of the Guarantor with or into the Company or
any Subsidiary of the Company that has executed and delivered a supplemental
indenture substantially in the form hereof or shall prevent any sale or
conveyance of the property of the Guarantor as an entirety or substantially as
an entirety, to the Company or any such Subsidiary of the Company.
(b) Except as provided in Section 4(a) hereof or in a transaction
referred to in Section 5 hereof, the Guarantor shall not 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 unless (1)
either (x) the
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Guarantor shall be the surviving Person of such merger or consolidation or (y)
the surviving Person or transferee 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 or transferee shall expressly
assume all the obligations of the Guarantor under this Guarantee and the
Indenture pursuant to a supplemental indenture substantially in the form
hereof; (2) immediately after giving effect to such transaction (including the
incurrence of any Indebtedness incurred or anticipated to be incurred in
connection with such transaction) no Default or Event of Default shall have
occurred and be continuing; and (3) the Company has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with the Indenture, that the
surviving Person agrees to be bound thereby, and that all conditions precedent
in the Indenture relating to such transaction have been satisfied. For purposes
of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of related transactions) of all or substantially
all of the properties and assets of one or more Subsidiaries of the Guarantor,
the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Guarantor, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Guarantor.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Guarantor in accordance with this Section 4(b) hereof, the successor
corporation shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Guarantees to be
endorsed upon all of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All
Guarantees so issued shall in all respects have the same legal rank and benefit
under the Indenture as the Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of such Guarantees had
been issued at the date of the execution hereof.
5. RELEASES FOLLOWING SALE OF ASSETS. Concurrently with any sale, lease,
conveyance or other disposition (by merger, consolidation or otherwise) of
assets of the Guarantor (including, if applicable, disposition of all of the
Capital Stock of the Guarantor), any Liens in favor of the Trustee in the assets
sold, leased, conveyed or otherwise disposed of shall be released. If the
assets sold, leased, conveyed or otherwise disposed of (by merger, consolidation
or otherwise) include all or substantially all of the assets of the Guarantor or
all of the Capital Stock of the Guarantor in each case, in compliance with the
terms of the Indenture, then the Guarantor shall be automatically and
unconditionally released from and relieved of its Obligations under its
Guarantee. Upon delivery by the Company to the Trustee of an Officers'
Certificate to the effect that such sale, lease, conveyance or other disposition
was made by the Company in accordance with the provisions of the Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of the Guarantor from its Obligations under its Guarantee.
6. LIMITATION ON GUARANTOR LIABILITY. For purposes hereof, the
Guarantor's liability will be that amount from time to time equal to the
aggregate liability of the Guarantor hereunder, but shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Company under the
Securities and the Indenture and (ii) the amount, if any, which would not have
(A) rendered the Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or
(B) left it with unreasonably small capital at the time its Guarantee of the
Securities was entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; PROVIDED that it shall be a
presumption in any lawsuit or other proceeding in which the Guarantor is a party
that the amount guaranteed pursuant to its Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of creditors of the
Guarantor, or debtor in possession or trustee in bankruptcy of the Guarantor,
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otherwise proves in such a lawsuit that the aggregate liability of the Guarantor
is limited to the amount set forth in clause (ii). In making any determination
as to the solvency or sufficiency of capital of the Guarantor in accordance with
the previous sentence, the right of the Guarantor to contribution from other
Subsidiaries of the Company that have executed and delivered a supplemental
indenture substantially in the form hereof and any other rights the Guarantor
may have, contractual or otherwise, shall be taken into account.
7. "TRUSTEE" TO INCLUDE PAYING AGENT. In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting under the Indenture, the term "Trustee" as used in this Supplemental
Indenture shall in each case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as
fully and for all intents and purposes as if such Paying Agent were named in
this Supplemental Indenture in place of the Trustee.
8. SUBORDINATION. The Obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to this Guarantee are subordinated to the
Guarantor's Guarantee of or pledge to secure [the Indebtedness giving rise to
the requirement to execute this Guarantee pursuant to Section 4.15 of the
Indenture] to the same extent as the Securities are subordinated to such other
Indebtedness under the Indenture.
9. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guarantor, as such, shall have any liability
for any obligations of the Company or the Guarantor under the Securities, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
10. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
11. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
12. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ,
----------------- --- ----
[Guarantor]
By:
------------------------------
Name:
Title:
The Bank of New York,
as Trustee
By:
------------------------------
Name:
Title:
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EXHIBIT 1 TO SUPPLEMENTAL INDENTURE
GUARANTEE
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Securities or the Obligations of the Company to the Holders or
the Trustee under the Securities or under the Indenture, that: (a) the principal
of, and premium, if any, and interest on the Securities will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on overdue principal, premium, if any, and (to the extent permitted
by law) interest on any interest on the Securities and all other payment
Obligations of the Company to the Holders or the Trustee under the Indenture or
under the Securities will be promptly paid in full, all in accordance with the
terms thereof; and (b) in case of any extension of time of payment or renewal of
any Securities or any of such other payment Obligations, the same will be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration, redemption or otherwise.
Failing payment when due of any amount so guaranteed, for whatever reason, the
Guarantor shall be obligated to pay the same immediately.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in a Supplemental Indenture, dated as of _________ __, ____ to the Indenture,
and reference is hereby made to the Indenture, as supplemented, for the precise
terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its respective successors and
assigns to the extent set forth in the Indenture until full and final payment of
all of the Company's Obligations under the Securities and the Indenture and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders of Securities and, in the event of any transfer or assignment of rights
by any Holder of Securities or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This a
Guarantee of payment and not a guarantee of collection.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
For purposes hereof, the Guarantor's liability will be that amount
from time to time equal to the aggregate liability of the Guarantor hereunder,
but shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Securities and the Indenture and (ii) the
amount, if any, which would not have (A) rendered the Guarantor "insolvent" (as
such term is defined in the federal Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left it with unreasonably small
capital at the time its Guarantee of the Securities was entered into, after
giving effect to the incurrence of existing Indebtedness immediately prior to
such time; PROVIDED that it shall be a presumption in any lawsuit or other
proceeding in which the Guarantor is a party that the amount guaranteed pursuant
to its Guarantee is the amount set forth in clause (i) above unless any
creditor, or representative of creditors of the Guarantor, or debtor in
possession or trustee in bankruptcy of the Guarantor, otherwise proves in such a
lawsuit that the aggregate liability of the Guarantor is limited to the amount
set forth in clause (ii). The Indenture provides that, in making any
determination as to the solvency or sufficiency of capital of a Guarantor in
accordance with the previous sentence, the right of the Guarantor to
contribution from other
Subsidiaries of the Company that have become Guarantors and any other rights the
Guarantor may have, contractual or otherwise, shall be taken into account.
The Obligations of the Guarantor to the Holders of the Securities and
to the Trustee pursuant to this Guarantee are subordinated to the Guarantor's
Guarantee of or pledge to secure [the Indebtedness giving rise to the
requirement to execute this Guarantee pursuant to Section 4.15 of the Indenture]
to the same extent as the Securities are subordinated to such other Indebtedness
under the Indenture.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
[GUARANTOR]
By:
-------------------------
Name:
Title:
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