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GENESIS ELDERCARE ACQUISITION CORP.,
Issuer
and
PNC BANK, NATIONAL ASSOCIATION,
Trustee
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
Paying Agent
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Indenture
Dated as of August 11, 1997
-----------------------
9% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
------------ ------------------
ss. 310(a)(1)..................................... 7.10
(a)(2)..................................... 7.10
(b)........................................ 7.08
ss. 313(c)........................................ 7.06; 11.02
ss. 314(a)........................................ 4.17; 11.02
(a)(4)..................................... 4.16; 11.02
(c)(1)..................................... 11.03
(c)(2)..................................... 11.03
(e)........................................ 11.04
ss. 315(b)........................................ 7.05; 11.02
ss. 316(a)(1)(A).................................. 6.05
(a)(1)(B).................................. 6.04
(b)........................................ 6.07
ss. 317(a)(1)..................................... 6.08
(a)(2)..................................... 6.09
ss. 318(a)........................................ 11.01
(c)........................................ 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part
of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act........ 24
SECTION 1.03. Rules of Construction.................................... 25
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.......................................... 25
SECTION 2.02. Restrictive Legends...................................... 27
SECTION 2.03. Execution, Authentication and Denominations.............. 29
SECTION 2.04. Registrar and Paying Agent............................... 29
SECTION 2.05. Paying Agent to Hold Money in Trust...................... 30
SECTION 2.06. Transfer and Exchange.................................... 31
SECTION 2.07. Book-Entry Provisions for Global Notes................... 31
SECTION 2.08. Special Transfer Provisions.............................. 33
SECTION 2.09. Replacement Notes........................................ 37
SECTION 2.10. Outstanding Notes........................................ 37
SECTION 2.11. Temporary Notes.......................................... 37
SECTION 2.12. Cancellation............................................. 38
SECTION 2.13. CUSIP Numbers............................................ 38
SECTION 2.14. Defaulted Interest....................................... 38
SECTION 2.15. Issuance of Additional Notes............................. 39
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption; Mandatory Redemption................ 39
SECTION 3.02. Notices to Trustee....................................... 40
SECTION 3.03. Selection of Notes to Be Redeemed........................ 40
SECTION 3.04. Notice of Redemption..................................... 40
SECTION 3.05. Effect of Notice of Redemption........................... 41
SECTION 3.06. Deposit of Redemption Price.............................. 41
SECTION 3.07. Payment of Notes Called for Redemption................... 42
SECTION 3.08. Notes Redeemed in Part................................... 42
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Note: The Table of Contents shall not for any purposes be deemed to be a part of
the Indenture.
ii
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes......................................... 42
SECTION 4.02. Maintenance of Office or Agency.......................... 42
SECTION 4.03. Limitation on Indebtedness............................... 43
SECTION 4.04. Limitation on Restricted Payments........................ 43
SECTION 4.05. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries........................ 45
SECTION 4.06. Limitations on Preferred Stock of Restricted Subsidiaries 46
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries ............................................ 46
SECTION 4.08. Limitation on Transactions with Stockholders and
Affiliates .............................................. 47
SECTION 4.09. Limitation on Liens...................................... 48
SECTION 4.10. Limitation on Asset Sales................................ 49
SECTION 4.11. Repurchase of Notes upon a Change in Control............. 49
SECTION 4.12. Limitation on Senior Subordinated Indebtedness........... 50
SECTION 4.13. Limitation on Management Fees............................ 50
SECTION 4.14. Existence................................................ 50
SECTION 4.15. Payment of Taxes and Other Claims........................ 51
SECTION 4.16. Maintenance of Properties and Insurance.................. 51
SECTION 4.17. Notice of Defaults....................................... 51
SECTION 4.18. Compliance Certificates.................................. 52
SECTION 4.19. Commission Reports and Reports to Holders................ 52
SECTION 4.20. Waiver of Stay, Extension or Usury Laws.................. 53
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Issuer May Merge, Etc............................... 53
SECTION 5.02. Successor Substituted.................................... 54
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default........................................ 55
SECTION 6.02. Acceleration............................................. 56
SECTION 6.03. Other Remedies........................................... 57
SECTION 6.04. Waiver of Past Defaults.................................. 57
SECTION 6.05. Control by Majority...................................... 57
SECTION 6.06. Limitation on Suits...................................... 57
SECTION 6.07. Rights of Holders to Receive Payment..................... 58
SECTION 6.08. Collection Suit by Trustee............................... 58
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SECTION 6.09. Trustee May File Proofs of Claim......................... 59
SECTION 6.10. Priorities............................................... 59
SECTION 6.11. Undertaking for Costs.................................... 59
SECTION 6.12. Restoration of Rights and Remedies....................... 60
SECTION 6.13. Rights and Remedies Cumulative........................... 60
SECTION 6.14. Delay or Omission Not Waiver............................. 60
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General.................................................. 60
SECTION 7.02. Certain Rights of Trustee................................ 61
SECTION 7.03. Individual Rights of Trustee............................. 62
SECTION 7.04. Trustee's Disclaimer..................................... 62
SECTION 7.05. Notice of Default........................................ 62
SECTION 7.06. Reports by Trustee to Holders............................ 62
SECTION 7.07. Compensation and Indemnity............................... 62
SECTION 7.08. Replacement of Trustee................................... 63
SECTION 7.09. Successor Trustee by Merger, Etc......................... 64
SECTION 7.10. Eligibility.............................................. 64
SECTION 7.11. Money Held in Trust...................................... 64
SECTION 7.12. Withholding Taxes........................................ 65
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Issuer's Obligations...................... 65
SECTION 8.02. Defeasance and Discharge of Indenture.................... 66
SECTION 8.03. Defeasance of Certain Obligations........................ 68
SECTION 8.04. Application of Trust Money............................... 70
SECTION 8.05. Repayment to Issuer...................................... 70
SECTION 8.06. Reinstatement............................................ 70
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders............................... 71
SECTION 9.02. With Consent of Holders.................................. 71
SECTION 9.03. Revocation and Effect of Consent......................... 72
SECTION 9.04. Notation on or Exchange of Notes......................... 73
SECTION 9.05. Trustee to Sign Amendments, Etc.......................... 73
SECTION 9.06. Conformity with Trust Indenture Act...................... 74
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ARTICLE TEN
SECURITY
SECTION 10.01. Security................................................ 74
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Agreement to Subordinate................................ 75
SECTION 11.02. Distribution on Dissolution, Liquidation, Bankruptcy or
Reorganization.......................................... 76
SECTION 11.03. Suspension of Payment When Senior Indebtedness in
Default................................................. 77
SECTION 11.04. Payment Permitted if No Default......................... 79
SECTION 11.05. Subrogation to Rights of Holders of Senior Indebtedness. 79
SECTION 11.06. Provisions Solely to Define Relative Rights............. 79
SECTION 11.07. Trustee to Effectuate Subordination..................... 80
SECTION 11.08. No Waiver of Subordination Provisions................... 80
SECTION 11.09. Notice to Trustee....................................... 81
SECTION 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent ...................................... 82
SECTION 11.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights........................ 82
SECTION 11.12. Trust Moneys and Escrowed Funds Not Subordinated........ 82
SECTION 11.13. No Suspension of Remedies............................... 82
SECTION 11.14. Trustee's Relation to Senior Indebtedness............... 82
SECTION 11.15. Other Rights of Holders of Senior Indebtedness.......... 83
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939............................. 83
SECTION 12.02. Notices................................................. 83
SECTION 12.03. Certificate and Opinion as to Conditions Precedent...... 85
SECTION 12.04. Statements Required in Certificate or Opinion........... 85
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar............. 86
SECTION 12.06. Payment Date Other Than a Business Day.................. 86
SECTION 12.07. Governing Law........................................... 86
SECTION 12.08. No Adverse Interpretation of Other Agreements........... 86
SECTION 12.09. No Recourse Against Others.............................. 86
SECTION 12.10. Successors.............................................. 87
SECTION 12.11. Duplicate Originals..................................... 87
SECTION 12.12. Separability............................................ 87
SECTION 12.13. Table of Contents, Headings, Etc........................ 87
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EXHIBIT A Form of Note...................................................A-1
EXHIBIT B Form of Certificate............................................B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Non-QIB Accredited Investors..........C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S..........................D-1
EXHIBIT E Form of Supplemental Indenture.................................E-1
INDENTURE, dated as of August 11, 1997, between GENESIS ELDERCARE
ACQUISITION CORP., a Delaware corporation (the "Issuer"), PNC Bank, National
Association, a national banking association duly organized under the laws of the
United States of America (the "Trustee"), and Banque Internationale a Luxembourg
S.A. (a "Paying Agent").
RECITALS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of up to $250,000,000 aggregate
principal amount of the Issuer's 9% Senior Subordinated Notes due 2007 (the
"Notes") issuable as provided in this Indenture. The Notes will be secured
pursuant to the terms of an Escrow Agreement (as defined herein) as provided by
Article Ten of this Indenture. All things necessary to make this Indenture a
valid agreement of the Issuer, in accordance with its terms, have been done, and
the Issuer has done all things necessary to make the Notes, when executed by the
Issuer and authenticated and delivered by the Trustee hereunder and duly issued
by the Issuer, the valid obligations of the Issuer as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act of 1939 that are required to be a part of and to govern
indentures qualified under the Trust Indenture Act of 1939.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, the Issuer and the Trustee, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Restricted Subsidiary or (ii) existing at the time
and assumed in connection with the acquisition of assets by a Restricted
Subsidiary from such Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition; provided that Indebtedness of a Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately
upon consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such asset acquisition shall not be Acquired Indebtedness.
Acquired Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary.
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"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Capital
Stock, (iii) any officer or director of (A) any such specified Person, (B) any
Subsidiary of such specified Person or (C) any Person described in clause (i) or
(ii) above or (iv) any other Person having a relationship with any natural
Person described in clause (i), (ii) or (iii) above by blood, marriage or
adoption not more remote than first cousin or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such other Person described in this clause (iv). For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Co-Registrar, Paying Agent or authenticating
agent.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Restricted Subsidiary; (ii) all or substantially all of the
properties and assets of any division or line of business of the Issuer or its
Restricted Subsidiaries; or (iii) any other properties or assets of the Issuer
or any Restricted Subsidiary, other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include (a) any
transfer of properties and assets that is governed by Article Five, (b) any
transfer of properties or assets of the Issuer to a Restricted Subsidiary, or of
a Restricted Subsidiary to the Issuer or another Restricted Subsidiary, (c) any
transfer of inventory, receivables and other current assets, (d) any transfer of
assets for consideration at least equal to the Fair Market Value of the assets
transferred, to the extent that the consideration received would satisfy clause
(B) of Section 4.10, (e) the Therapy Sale, (f) the Pharmacy Sale, or (g) any
transfer of property or assets with a Fair Market Value not in excess of $1
million in any transaction or series of related transactions.
"Attributable Debt" in respect of a sale-leaseback transaction or an
operating lease in respect of a healthcare facility means, at the time of
determination, the present value (discounted at the interest rate implicit in
the lease, compounded semiannually) of the obligation of the lessee of the
property subject to such sale-leaseback transaction or operating lease in
respect of a healthcare facility for rental payments during the remaining term
of the lease included in such transaction including any period for which such
lease has been extended or may, at the option of the lessor, be extended or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such
3
penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water, utilities and
similar charges.
"Average Life" means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(A) the number of years from the date of determination to the date or dates of
each successive scheduled principal payment of such Indebtedness multiplied by
(B) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, as amended, or any
similar United States Federal or State law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
"Board of Directors" means the Board of Directors of the Issuer or any
committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Lease Obligation" means the discounted present value of the
rental obligations under any lease of real or personal property which, in
accordance with GAAP, is required to be recorded on the balance sheet of such
Person as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person's capital stock or equity interests.
"Cash Collateral Account" means the account established with the Trustee
pursuant to the terms of the Escrow Agreement for the deposit of the net
proceeds from the sale of the Notes and such other purposes as specified
therein.
"Cash Equivalent" means (i) any security, maturing not more than six
months after the date of acquisition, issued by the United States of America, or
an instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (ii) any
certificate of deposit, time deposit, money market account or bankers'
acceptance, maturing not more than six months after the date of acquisition,
issued by any
4
commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Xxxxx'x Investors Service,
Inc. or any successor rating agency, or "A-1" (or higher) according to Standard
& Poor's Ratings Services or any successor rating agency and (iii) commercial
paper, maturing not more than three months after the date of acquisition, issued
by any corporation (other than an Affiliate or Subsidiary of the Issuer)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Ratings Services or
any successor rating agency.
"Change in Control" means any time that (i) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
an Existing Stockholder or Genesis ElderCare Corp., in a single transaction or
through a series of related transactions, is or becomes the ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock of
the Issuer on a fully diluted basis and such ownership is greater than the
amount of voting power of the Voting Stock of the Issuer, on a fully diluted
basis, held by Genesis and its Affiliates on such date; (ii) the Issuer
consolidates or merges with or into another corporation or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates or merges with or into the Issuer, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Issuer is changed into
or exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of the Issuer is changed into
or exchanged for (x) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (y) cash, securities or other property in an amount
which could be paid by the Issuer as a Restricted Payment under Section 4.04
(and such amount shall be treated as a Restricted Payment), and (B) the holders
of the Voting Stock of the Issuer immediately prior to such transaction own,
directly or indirectly, not less than 50% of the Voting Stock of the surviving
corporation immediately after such transaction; (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Issuer (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Issuer was (a) approved by a vote of at least 66% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved or (b) approved by Genesis in connection with its acquisition of the
Common Stock of Genesis ElderCare Corp. held by Cypress or TPG) cease for any
reason to constitute a majority of the Board of Directors of the Issuer then in
office; or (iv) the Issuer is liquidated or dissolved or adopts a plan of
liquidation.
"Closing Date" means the date on which the Notes are originally issued
under this Indenture.
5
"Collateral" means the Collateral as defined in the Escrow Agreement.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
date of the Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock of
such Person, whether outstanding on the Closing Date or issued thereafter,
including, without limitation, all series and classes of such common stock.
"Consolidated EBITDA" of any Person means, with respect to any period, the
Consolidated Net Income of such Person for such period, plus, to the extent such
amount was deducted in calculating such Consolidated Net Income (i) Consolidated
Income Tax Expense, (ii) depreciation expense, (iii) amortization expense, (iv)
Consolidated Interest Expense, (v) all other non-cash items reducing
Consolidated Net Income (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made), less
all non-cash items increasing Consolidated Net Income and (vi) all management
fees, and minus all management fees paid during such period (whether or not such
fees were deducted in calculating Consolidated Net Income for such period), all
as determined on a consolidated basis in accordance with GAAP; provided that, if
any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary,
Consolidated EBITDA of the Issuer shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of the
Consolidated Net Income attributable to such Restricted Subsidiary multiplied by
(B) the percentage ownership interest in the income of such Restricted
Subsidiary not owned on the last day of such period by the Issuer or any of its
Restricted Subsidiaries.
"Consolidated Income Tax Expense" means for any period, as applied to any
Person, the provision for federal, state, local and foreign income taxes of such
Person and its Consolidated Subsidiaries for such period (other than income
taxes (either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets) as determined in accordance
with GAAP.
"Consolidated Interest Expense" means, without duplication, for any
period, as applied to any Person, the sum of (i) the interest expense of such
Person and its Consolidated Subsidiaries for such period, including, without
limitation, (A) amortization of debt discount, (B) the net cost under interest
rate contracts (including amortization of discounts), (C) the interest portion
of any deferred payment obligation calculated in accordance with the effective
interest method of accounting and (D) accrued interest, plus (ii) the interest
component of the Capital Lease Obligations paid, accrued and/or scheduled to be
paid, or accrued by such Person
6
during such period, in each case as determined in accordance with GAAP, plus
(iii) Preferred Stock dividends in respect of Preferred Stock of the Issuer or
any Restricted Subsidiary held by Persons other than the Issuer or a Wholly
Owned Restricted Subsidiary. For purposes of clause (c) of the preceding
sentence, dividends shall be deemed to be an amount equal to the actual
dividends paid divided by one minus the applicable actual combined federal,
state, local and foreign income tax rate of the Issuer and its Consolidated
Subsidiaries (expressed as a decimal).
"Consolidated Net Income" of any Person means, for any period, as applied
to any Person, the net income (or loss) of such Person and its Consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income (loss), by excluding (without
duplication) (i) all extraordinary gains or losses (less all fees and expenses
relating thereto), (ii) the portion of net income of such Person and its
Consolidated Subsidiaries allocable to investments in Persons other than
Consolidated Subsidiaries to the extent that cash dividends or distributions
have not actually been received by such Person or one of its Consolidated
Subsidiaries, (iii) net income (or loss) of any Person combined with such Person
or any of its Consolidated Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (iv) any gain or
loss, net of taxes, realized upon the termination of any employee pension
benefit plan, (v) any gains or losses (less all fees and expenses relating
thereto) in respect of dispositions of assets other than in the ordinary course
of business, or (vi) the net income of any Consolidated Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by that
Consolidated Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulations
applicable to that Consolidated Subsidiary.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable for the sale of
Capital Stock) of such Person and its Consolidated Subsidiaries, as set forth on
the most recent consolidated balance sheet of such Person and its Consolidated
Subsidiaries (which shall be as of a date not more than 90 days prior to the
date of such computation determined in accordance with GAAP).
"Consolidated Rental Payments" of any Person means, for any period, the
aggregate rental obligations of such Person and its Consolidated Subsidiaries
(not including taxes, insurance, maintenance and similar expenses that the
lessee is obligated to pay under the terms of the relevant leases), determined
on a consolidated basis in conformity with GAAP, payable in respect of such
period under Attributable Debt or leases of real or personal property not
constituting Attributable Debt (net of income from subleases thereof, not
including taxes, insurance, maintenance and similar expenses that the sublessee
is obligated to pay under the terms of such sublease), whether or not such
obligations are reflected as liabilities or commitments on a consolidated
balance sheet of such Person and its Subsidiaries or in the notes
7
thereto, excluding, however, in any event, (i) that portion of Consolidated
Interest Expense of such Person representing payments by such Person or any of
its Consolidated Subsidiaries in respect of Capital Lease Obligations (net of
payments to such Person or any of its Consolidated Subsidiaries under subleases
qualifying as capitalized lease subleases to the extent that such payments would
be deducted in determining Consolidated Interest Expense) and (ii) the aggregate
amount of amortization of obligations of such Person and its Consolidated
Subsidiaries in respect of such Capital Lease Obligations for such period (net
of payments to such Person or any of its Consolidated Subsidiaries and subleases
qualifying as capitalized lease subleases to the extent that such payments would
be deducted in determining such amortization amount).
"Consolidation" means, (i) with respect to the Issuer, the consolidation
of the accounts of the Issuer and each of its Restricted Subsidiaries and (ii)
with respect to any other Person, the consolidation of the accounts of such
Person and each of its Subsidiaries, in each case if and to the extent the
accounts of such Person and such Subsidiaries would normally be consolidated
with those of such Person, all in accordance with GAAP. The term "Consolidated"
shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxxxxxx.
"Credit Facility" means (i) any and all credit agreements (whether of the
Issuer or any Subsidiary of the Issuer) contemplated by the Amended and Restated
Commitment Letter dated as of June 14, 1997 between the Issuer and Mellon Bank,
N.A., Citicorp Securities, Inc., Citibank, N.A., First Union Capital Markets
Corp., First Union National Bank and NationsBank, N.A. as the same may be
amended, restated, renewed, extended, restructured, supplemented or otherwise
modified from time to time; (ii) any agreements, instruments and documents
executed or delivered pursuant to or in connection with such credit agreement;
and (iii) any credit agreement, loan agreement, note purchase agreement,
indenture or other agreement, document or instrument refinancing, refunding or
otherwise replacing the credit agreement or any other agreement deemed a Credit
Facility under clause (i), (ii) or (iii) hereof, whether or not with the same
agent, trustee, representative, lenders or holders, regardless of whether the
Credit Facility or any portion thereof was outstanding or in effect at the time
of such restatement, renewal, extension, restructuring, supplement or
modification. Without limiting the generality of the foregoing, the term "Credit
Facility" shall include any amendment, restatement, renewal, extension,
restructuring, supplement or modification to any Credit Facility and all
refundings, refinancings and replacements of any Credit Facility, including any
agreement (a) extending the maturity of any Indebtedness Incurred thereunder or
contemplated thereby, (b) adding or deleting borrowers or guarantors thereunder,
provided that the addition of such borrower or guarantor would not be prohibited
by Sections 4.03, 4.07 and 4.09, (c) increasing the amount of Indebtedness
Incurred thereunder or available to be borrowed
8
thereunder, provided such increase is permitted to be Incurred under Section
4.03, or (d) otherwise altering the terms and conditions thereof in a manner not
prohibited by Sections 4.03, 4.05, 4.07 and 4.09. Notwithstanding the foregoing,
with respect to any agreement providing for the refinancing, refunding or
replacement of Indebtedness under the Credit Facility, such agreement shall be
the Credit Facility under the Indenture only if a notice to that effect is
delivered by the Issuer to the Trustee and there shall be at any time only one
instrument that is (together with the related agreements, instruments and
documents) the Credit Facility under the Indenture. No amendment or modification
to the Credit Facility shall be considered a refinancing, refunding or
replacement of Indebtedness under the Credit Facility for the purpose of
requiring notice pursuant to the preceding sentence.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Cypress" means The Cypress Group L.L.C., together with its Affiliates or
any of their respective successors.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Issuer, its nominees, and their
respective successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under,
or in respect of, the Credit Facility and any Interest Rate Contract or Currency
Agreement related to Indebtedness under the Credit Facility and (ii) any other
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount outstanding, together with any commitments to lend additional
amounts, of at least $30,000,000 and is specifically designated in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness."
"Escrow Agreement" means the Escrow and Security Agreement made and
entered into as of the Closing Date by and among the Issuer, Genesis and the
Placement Agents in favor of the Trustee for the Holders.
"Escrow Agreement Officers' Certificate" means the Officers' Certificate
as defined in the Escrow Agreement.
"Escrow Agreement Opinion of Counsel" means the Opinion of Counsel as
defined in the Escrow Agreement.
"Event of Default" has the meaning provided in Section 6.01.
9
"Excess Proceeds" has the meaning provided in Section 4.10.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Notes" means any securities of the Issuer containing terms
identical to the Notes (except that such Exchange Notes shall be registered
under the Securities Act and shall not contain terms concerning interest rate
increases) that are issued and exchanged for the Notes pursuant to the
Registration Rights Agreement and this Indenture.
"Exchange Offer" means the exchange offer by the Issuer of Exchange Notes
for the Notes pursuant to the terms of the Registration Rights Agreement.
"Existing Stockholders" means Genesis, The Cypress Group L.L.C. and TPG
Partners II, L.P. and their Affiliates.
"Expiration Date" means October 31, 1997, subject to an extension of up to
one month at the Issuer's option.
"Fair Market Value" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy as determined in good faith by the Board of
Directors, whose determination shall be conclusive if evidenced by a Board
Resolution.
"Fixed Charge Coverage Ratio" of any Person means, for any period, the
ratio of (i) the sum of Consolidated EBITDA plus one-third of Consolidated
Rental Payments, in each case for such period, of the Issuer and its
Consolidated Subsidiaries, as determined in accordance with GAAP to (ii) the sum
of Consolidated Interest Expense and one-third of Consolidated Rental Payments,
in each case, for such period of the Issuer and its Consolidated Subsidiaries;
provided that in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a pro forma basis and
bearing a floating interest rate shall be computed as if the rate in effect on
the date of computation had been the applicable rate for the entire period.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, as in
effect on the Closing Date. All ratios and computations contained or referred to
in this Indenture shall be computed in conformity with GAAP applied on a
consistent basis, except that computations made for purposes of determining
compliance with the terms of the covenants and with other provisions of this
Indenture shall be made without giving effect to (i) the amortization of any
expenses incurred in connection with the offering of the Notes, the Tender Offer
or the Merger and
10
(ii) except as otherwise provided, the amortization of any amounts required or
permitted by Accounting Principles Board Opinion Nos. 16 and 17.
"Genesis" means Genesis Health Ventures, Inc.
"Global Notes" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length and are entered into in
the ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (iv) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (v) otherwise to assure a creditor
against loss; provided that the term "Guaranteed Debt" shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business.
"Guaranty Documents" means the Supplemental Indenture and the opinion of
counsel substantially in the form of Exhibit B-2 to the Escrow Agreement.
"Healthcare Related Business" means a business, the majority of whose
revenues result from healthcare, long-term care, or managed care related
businesses or facilities, including businesses which provide insurance relating
to the costs of healthcare, long-term care or managed care services.
11
"Holder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for the payment of, contingently or otherwise, such Indebtedness,
including an "Incurrence" of Acquired Indebtedness; provided that neither the
accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) all obligations for the
payment of money of such Person for the deferred purchase price of property or
services, excluding any trade payables and other accrued current liabilities
arising in the ordinary course of business, but including, without limitation,
all obligations, contingent or otherwise, of such Person in connection with any
letters of credit or acceptances issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (iii) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments, (iv)
all obligations under Interest Rate Contracts and Currency Agreements of such
Person, (v) all Capital Lease Obligations of such Person, (vi) all Indebtedness
of other Persons the payment of which is secured by a Lien, upon any property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness; provided that the amount of such Indebtedness shall be the
lesser of (A) the fair market value of such asset at such date of determination
and (B) the amount of such Indebtedness, (vii) all Guaranteed debt of such
Person, (viii) all Redeemable Capital Stock valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends, and (ix) all Attributable Debt of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, provided (A) that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the face amount of such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness at the time of its issuance
as determined in conformity with GAAP, (B) that money borrowed and set aside at
the time of the Incurrence of any Indebtedness in order to prefund the payment
of the interest on such Indebtedness shall not be deemed to be "Indebtedness"
and (C) that Indebtedness shall not include any liability for federal, state,
local or other taxes. For purposes hereof, the "maximum fixed repurchase price"
of any Redeemable Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Redeemable Capital
Stock as if such Redeemable Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to the Indenture, and
if such price is
12
based upon, or measured by, the Fair Market Value of such Redeemable Capital
Stock, such Fair Market Value to be determined in good faith by the Board of
Directors.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Initial Blockage Period" has the meaning provided in Section 11.03.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means each semiannual interest payment date on
February 1 and August 1 of each year, commencing February 1, 1998.
"Interest Rate Contracts" means interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements, interest rate insurance,
and other similar agreements or arrangements.
"Investment" means, with respect to any Person, directly or indirectly,
any advance, loan or other extension of credit (including, without limitation,
any guarantee or similar arrangement but excluding advances in the ordinary
course of business that are, in conformity with generally accepted accounting
principles, recorded as accounts receivable on the balance sheet of the Issuer
or a Restricted Subsidiary) or capital contribution to (by means of any transfer
of cash or other property (tangible or intangible) to others, or any payment for
property or services for the account or use of others or otherwise), or any
purchase, acquisition or ownership by such Person of any Capital Stock, bonds,
notes, debentures or other securities (including, without limitation, any
interests in any partnership or joint venture) issued or owned by any other
Person and shall include (i) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary and (ii) the issuance or sale of Capital Stock of a
Restricted Subsidiary if immediately after giving effect thereto such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and the Issuer or
another Restricted Subsidiary would have an Investment in such Restricted
Subsidiary after giving effect to such issuance or sale. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04, (i) "Investment" shall
include the fair market value of the assets (net of liabilities (other than
liabilities to the Issuer or any of its Restricted Subsidiaries)) of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary, (ii) the fair market value of the assets (net of
liabilities (other than liabilities to the Issuer or any of its Restricted
Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary shall be considered a reduction
in outstanding Investments and (iii) "Investment" shall include the fair market
value of the Capital Stock (or any other remaining Investment), held by the
Issuer or any of its Restricted Subsidiaries, of (or in) any Person that has
ceased to be a Restricted Subsidiary; provided that
13
the fair market value of the Investment in an Unrestricted Subsidiary or any
other Person that has ceased to be a Restricted Subsidiary shall not exceed the
aggregate amount of Investments previously made in such Person valued at the
time such Investments were made less the net reduction of such Investments.
"Issuer" means Genesis ElderCare Acquisition Corp. and, following the
Merger, Multicare until a successor replaces it pursuant to Article Five and
thereafter means the successor.
"Issuer Order" means a written request or order signed in the name of the
Issuer (i) by its Chairman, a Vice Chairman, its President or a Vice President
and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee; provided, however, that such written
request or order may be signed by any two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in clause (ii) above.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Merger" means the merger of Genesis ElderCare Acquisition Corp. with and
into Multicare which shall be the surviving corporation in the merger.
"Merger Closing Date" means the date the Merger is consummated.
"Multicare" means The Multicare Companies, Inc.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed for, cash or Cash Equivalents (except
to the extent that such obligations are financed or sold with recourse to the
Issuer or any Restricted Subsidiary) net of (i) brokerage commissions and other
reasonable fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness either (A) is secured by the
assets or properties sold or (B) is required to be paid as a result of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Issuer or any Subsidiary of the Issuer) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be provided by
the Issuer or any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Issuer or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
14
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee and (b) with respect to any issuance or sale of Capital Stock, the
proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations when received in
the form of, or stock or other assets when disposed for, cash or Cash
Equivalents (except to the extent such obligations are financed or sold with
recourse to the Issuer or any Restricted Subsidiary), net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Non-payment Default" means any default or event of default under or in
respect of any Designated Senior Indebtedness, other than a Payment Default.
"Non-U.S. Person" means a person who is not a "U.S. person" (as defined in
Regulation S).
"Notes" means any of the securities, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered under this Indenture.
For all purposes of this Indenture, the term "Notes" shall include the Notes
initially issued on the Closing Date, any Exchange Notes to be issued and
exchanged for any Notes pursuant to the Registration Rights Agreement and this
Indenture and any other Notes issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Notes shall vote together as one
series of Notes under this Indenture.
"Offer to Purchase" means an offer to purchase Notes by the Issuer from
the Holders commenced by mailing a notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that all
Notes validly tendered will be accepted for payment on a pro rata basis; (ii)
the purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed)
(the "Payment Date"); (iii) that any Note not tendered will continue to accrue
interest pursuant to its terms; (iv) that, unless the Issuer defaults in the
payment of the purchase price, any Note accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the Payment
Date; (vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii)
15
that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered; provided that each Note purchased and each new Note issued shall be
in a principal amount of $1,000 or integral multiples thereof. On the Payment
Date, the Issuer shall (i) accept for payment on a pro rata basis Notes or
portions thereof tendered pursuant to an Offer to Purchase; (ii) deposit with
the Paying Agent money sufficient to pay the purchase price of all Notes or
portions thereof so accepted; and (iii) deliver, or cause to be delivered, to
the Trustee all Notes or portions thereof so accepted together with an Officers'
Certificate specifying the Notes or portions thereof accepted for payment by the
Issuer. The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. The Issuer will publicly announce the results of an
Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the paying agent for an Offer to Purchase. The Issuer will comply
with 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 the event that the Issuer is required to repurchase Notes pursuant to an
Offer to Purchase.
"Officer" means, with respect to the Issuer, (i) the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer listed
in clause (i) of the definition thereof and one Officer listed in clause (ii) of
the definition thereof or two officers listed in clause (i) of the definition
thereof. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in TIA
Section 314(e).
"Offshore Global Note" has the meaning provided in Section 2.01.
"Offshore Notes Exchange Date" has the meaning provided in Section 2.01.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Issuer, that meets the requirements of
Section 12.04 hereof. Each such Opinion of Counsel shall include the statements
provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that, for
the purposes of Article Eight, the Paying Agent shall not be the Issuer or a
Subsidiary of the Issuer or an Affiliate of any of them. The term "Paying Agent"
includes any additional Paying Agent.
16
"Payment Blockage Period" has the meaning provided in Section 11.03.
"Payment Default" means any default in the payment when due (at maturity,
upon acceleration of maturity, upon mandatory prepayment or otherwise) of any
amount owing under or in respect of any Designated Senior Indebtedness.
"Permanent Offshore Global Notes" has the meaning provided in Section
2.01.
"Permitted Indebtedness" means:
(a) Indebtedness outstanding at any time in an aggregate principal
amount not to exceed $625 million, less any amount of such Indebtedness
permanently repaid as provided under Section 4.10;
(b) Indebtedness of Multicare in existence on the Merger Closing
Date; provided that upon consummation of the Merger not more than $40
million of such Indebtedness shall remain outstanding;
(c) Indebtedness of the Issuer pursuant to the Notes;
(d) Indebtedness evidenced by letters of credit issued in the
ordinary course of business consistent with past practice to support the
Issuer's or any Subsidiary's insurance or self-insurance obligations
(including to secure workers' compensation and other similar insurance
coverages) to the extent such letters of credit are not drawn upon or, if
drawn upon, to the extent such drawing is reimbursed no later than the
third Business Day following a demand for reimbursement;
(e) Interest Rate Contracts and Currency Agreements to the extent
that the notional principal amount of such obligations under Interest Rate
Contracts does not exceed the amount of Indebtedness outstanding or
committed to be incurred on the date such Interest Rate Contracts are
entered into;
(f) Indebtedness owed (A) to the Issuer evidenced by an
unsubordinated promissory note or (B) to any Restricted Subsidiary;
provided, however, that any subsequent issuance or transfer of any Capital
Stock or any other event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer of
any such Indebtedness (except to the Issuer or a Restricted Subsidiary)
shall be deemed, in each case to be an Incurrence of such Indebtedness not
permitted by this clause (f);
(g) any guarantees of Indebtedness by a Restricted Subsidiary
entered into in accordance with Section 4.07;
17
(h) Indebtedness incurred by the Issuer or any Restricted
Subsidiary, and any renewals, extensions, substitutions, refundings,
refinancings or replacements thereof, in an amount not to exceed $20
million at any one time outstanding to finance the acquisition or
construction of any property or assets or any business, including Acquired
Indebtedness and Indebtedness incurred within 90 days after such
acquisition or construction, less any amount of such Indebtedness
permanently repaid as provided under Section 4.10;
(i) Capital Lease Obligations, and any renewals, extensions,
substitutions, refundings, refinancings or replacements thereof, in an
amount not to exceed $10 million at any time outstanding, less any amount
of such Indebtedness permanently repaid as provided under Section 4.10;
(j) Indebtedness in addition to that described in clauses (a)
through (i) of this definition of "Permitted Indebtedness," in an
aggregate principal amount outstanding at any time not to exceed $20
million, less any amount of such Indebtedness permanently repaid as
provided under Section 4.10; and
(k) any renewals, extensions, substitutions, refundings,
refinancings or replacements of any Indebtedness (other than Indebtedness
Incurred under clause (a), (d), (e), (f), (g), (h), (i) or (j) of this
definition of "Permitted Indebtedness"), including any successive
renewals, extensions, substitutions, refundings, refinancings or
replacements, so long as (i) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness being refinanced
or the amount of any premium reasonably determined by the Issuer as
necessary to accomplish such refinancing through means of a tender offer
or privately negotiated transactions and, in each case, actually paid,
plus the amount of expenses of the Issuer incurred in connection with such
refinancing; (ii) in case the Notes are refinanced in part or the
Indebtedness to be refinanced is pari passu with the Notes, such new
Indebtedness is expressly made pari passu with, or subordinate in right of
payment to, the remaining Notes; (iii) in the case of any refinancing of
Subordinated Indebtedness, such new Indebtedness is made subordinate in
right of payment to the Notes at least to the same extent as the
Indebtedness being refinanced; and (iv) such new Indebtedness, determined
as of the date of Incurrence of such new Indebtedness, does not mature
prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded, and the Average Life of such new Indebtedness is at least equal
to the remaining Average Life of the Indebtedness to be refinanced or
refunded; provided that in no event may Indebtedness of the Issuer be
refinanced by means of any Indebtedness of any Restricted Subsidiary
pursuant to this clause (k).
18
For purposes of determining any particular amount of Indebtedness under Section
4.03, (1) Indebtedness Incurred under the Credit Facility on or prior to the
Merger Closing Date shall be treated as Incurred pursuant to clause (a) of this
"Permitted Indebtedness" definition, (2) Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (3) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.09
shall not be treated as Indebtedness. For purposes of determining compliance
with Section 4.03, in the event that an item of Indebtedness meets the criteria
of more than one of the types of Indebtedness described in this "Permitted
Indebtedness" definition (other than Indebtedness referred to in clause (1) of
the preceding sentence), the Issuer, in its sole discretion, shall classify such
item of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
(l) Notwithstanding the foregoing, for so long as the Credit Facility is
outstanding, Indebtedness Incurred under clause (a) above shall consist of (i)
$525 million of Indebtedness incurred under the Credit Facility (less any amount
referred to in clause (iii)), (ii) $100 million of Indebtedness (whether or not
incurred under the Credit Facility) and (iii) additional Indebtedness equal to
the amount by which, after giving effect to any amendment, restatement, renewal,
extension, restructuring, supplement or other modification of the Credit
Facility, the principal amounts outstanding and the commitments under the Credit
Facility have been permanently reduced (which may include subsequent increases
in the Credit Facility) less, without duplication, in the case of Indebtedness
described in clauses (i), (ii) or (iii), any amount of such Indebtedness
permanently repaid as provided under ss.4.10.
"Permitted Investment" means (i) Investments in the Issuer or a Restricted
Subsidiary or a Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into or transfer or
convey all or substantially all its assets to the Issuer or a Restricted
Subsidiary; provided that such Person's primary businesses are Healthcare
Related Businesses; (ii) Temporary Cash Investments; (iii) payroll, travel and
similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses in accordance with GAAP; and (iv)
Investments in existence on the Closing Date (including Investments held by
Multicare and its Subsidiaries).
"Permitted Junior Notes" has the meaning provided in Section 11.02.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pharmacy Sale" means the sale of Multicare's pharmacy business to Genesis
or any of its Affiliates in connection with the Merger.
19
"Physical Notes" has the meaning provided in Section 2.01.
"Preferred Stock," as applied to any Person, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"principal" of a debt security, including the Notes, means the principal
amount due on the Stated Maturity as shown on such debt security.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in Section 2.02.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" of any Person means any Capital Stock of such
Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock of
any Person that by its terms or otherwise is (i) required to be redeemed prior
to the Stated Maturity of the Notes, (ii) redeemable at the option of the holder
of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Notes or (iii) convertible into or exchangeable for Capital
Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Notes; provided that any Capital
Stock that would not constitute Redeemable Capital Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change in
control" occurring prior to the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the "asset sale" or "change in control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.10 and 4.11
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Issuer's repurchase of such Notes as are required to be repurchased pursuant to
Sections 4.10 and 4.11.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price at which such Note is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning provided in Section 2.04.
20
"Registration" has the meaning provided in Section 4.19.
"Registration Rights Agreement" means the Registration Rights Agreement
dated the Closing Date among the Issuer and the Placement Agents.
"Registration Statement" means the Registration Statement as defined and
described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee in its Corporate Trust Department customarily performing
functions similar to those performed by any of the above-designated officers and
in each case having direct responsibility for the administration of this
Indenture or the Escrow Agreement and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933.
"Security Register" has the meaning provided in Section 2.04.
"Senior Indebtedness" means the following obligations, whether outstanding
on the Closing Date or thereafter Incurred: (a) all Indebtedness and other
monetary obligations of the Issuer or any Subsidiary of the Issuer under or in
respect of the Credit Facility (including obligations in respect of any lease
financing facility of the Credit Facility) or any Interest Rate Contract or
Currency Agreement related to Indebtedness under the Credit Facility, whether
for
21
principal, interest (including interest accruing after the filing of a petition
by or against the Issuer or any Subsidiary of the Issuer under any state or
federal Bankruptcy Laws, whether or not such interest is allowed as a claim
after such filing in any proceeding under such law), fees, expenses,
indemnification or otherwise, and (b) the principal of, premium, if any, and
interest on all other Indebtedness of the Issuer (other than the Notes) unless,
in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall be pari passu with or subordinated in
right of payment to the Notes. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (i) Indebtedness that is by its terms
subordinate in right of payment to any Indebtedness of the Issuer, (ii)
Indebtedness which when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Law is without recourse to the Issuer, (iii)
any repurchase, redemption or other obligation in respect of Redeemable Capital
Stock, (iv) Indebtedness for goods, materials or services purchased in the
ordinary course of business or indebtedness consisting of trade payables or
other current liabilities, (v) Indebtedness of or amounts owed by the Issuer to
employees, officers, or directors, (vi) any liability for federal, state, local
or other taxes owed or owing by the Issuer, (vii) Indebtedness of the Issuer to
a Subsidiary of the Issuer or any other Affiliate of the Issuer or any of such
Affiliate's subsidiaries, (viii) that portion of any Indebtedness which at the
time of issuance is issued in violation of the Indenture and (ix) amounts owing
under leases (other than Capital Lease Obligations).
"Senior Representative" has the meaning provided in Section 11.01.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined and described in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Issuer, accounted for more than 10% of the
consolidated revenues of the Issuer and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Issuer and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Issuer for such fiscal year.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the Issuer
subordinated in right of payment to the Notes.
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"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.07.
"Supplemental Indenture" means the indenture supplemental hereto
substantially in the form of Exhibit E to this Indenture.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof and guaranteed
fully as to principal, premium, if any, and interest by the United States of
America, (ii) any certificate of deposit and money market deposit, maturing not
more than one year after the date of acquisition, issued by, or time deposit of,
a commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Xxxxx'x Investors Service,
Inc. or any successor rating agency, or "A-1" (or higher) according to Standard
& Poor's Ratings Services or any successor rating agency or any money market
fund sponsored by a registered broker dealer or mutual fund distributor, (iii)
commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate or Subsidiary of the Issuer)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Ratings Services or
any successor rating agency and (iv) securities with maturities of six months or
less from the date of acquisition issued or fully and unconditionally guaranteed
by any state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at least "A" by
Standard & Poor's Ratings Services or Xxxxx'x Investors Service, Inc.
"Temporary Offshore Global Notes" has the meaning provided in Section
2.01.
"Tender Offer" means the offer to purchase all of the issued and
outstanding shares of Common Stock of Multicare made by Genesis ElderCare
Acquisition Corp.
"Therapy Sale" means the sale of Multicare's contract therapy business to
Genesis or any of its Affiliates in connection with the Merger.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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"TPG" means TPG Partners II, L.P., together with its Affiliates, and any
of their respective successors.
"Transactions" means, collectively, the Tender Offer, the Merger, the
offering of the Notes issued hereunder, the management agreement to be entered
into by Genesis in connection with the Merger, the Therapy Sale and the Pharmacy
Sale.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary (including any newly acquired or newly formed Subsidiary of the
Issuer) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital
Stock of, or owns or holds any Lien on any property of, the Issuer or any
Restricted Subsidiary; provided that (A) any guarantee by the Issuer or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated
shall be deemed an "Incurrence" of such Indebtedness and an "Investment" by the
Issuer or such Restricted Subsidiary (or both, if applicable) at the time of
such designation; (B) either (I) the Subsidiary to be so designated has total
assets of $1,000 or less or (II) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.04 and (C) if
applicable, the Incurrence of Indebtedness and the Investment referred to in
clause (A) of this proviso would be permitted under Sections 4.03 and 4.04. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that (i) no Default or Event of Default shall have occurred
and be continuing at the time of or after giving effect to such designation and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately after such designation would, if Incurred at such time, have been
permitted to be Incurred (and shall be deemed to have been Incurred) for all
purposes of this Indenture. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Global Notes" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the
24
Stated Maturity of the Notes, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S.
Government Obligation evidenced by such depository receipt.
"U.S. Government Securities" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America (x) the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or (y) that are rated at
least "Aaa" (or the then equivalent grade) by Xxxxx'x Investors Service, Inc. or
"AAA" (or the then equivalent grade) by Standard & Poor's Ratings Services.
"Voting Stock" means stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which is owned by the Issuer or another Wholly Owned Restricted
Subsidiary.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
25
"obligor" on the indenture securities means the Issuer or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(vii) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set
forth in Section 1.01; and
(viii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. The Notes and the Trustee's certificate of
authentication shall be substantially in the form annexed hereto as Exhibit A
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange agreements to which the
Issuer is subject or usage. The Issuer shall approve the form of the Notes and
any notation, legend or endorsement on the Notes. Each Note shall be dated the
date of its authentication.
26
The terms and provisions contained in the form of the Notes annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a part of this
Indenture. To the extent applicable, the Issuer and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "U.S. Global Notes"),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation
S shall be issued initially in the form of one or more temporary global Notes in
registered form substantially in the form set forth in Exhibit A (the "Temporary
Offshore Global Notes"), registered in the name of the nominee of the
Depositary, deposited with the Trustee, as custodian for the Depositary, duly
executed by the Issuer and authenticated by the Trustee as hereinafter provided.
At any time following September 22, 1997 (the "Offshore Notes Exchange Date"),
upon receipt by the Trustee and the Issuer of a certificate substantially in the
form of Exhibit B hereto, one or more permanent global Notes in registered form
substantially in the form set forth in Exhibit A (the "Permanent Offshore Global
Notes"; and together with the Temporary Offshore Global Notes, the "Offshore
Global Notes") duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided shall be deposited with the Trustee, as custodian for the
Depositary, and the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Temporary Offshore Global Notes in
an amount equal to the principal amount of the beneficial interest in the
Temporary Offshore Global Notes transferred.
Notes offered and sold in reliance on Regulation D under the Securities
Act shall be issued in the form of permanent certificated Notes in registered
form in substantially the form set forth in Exhibit A (the "U.S. Physical
Notes"). Notes issued pursuant to Section 2.07 in exchange for interests in the
Offshore Global Notes shall be in the form of permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Notes
and the Offshore Global Notes are sometimes referred to herein as the "Global
Notes."
The definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the
27
rules of any securities exchange on which the Notes may be listed, all as
determined by the Officers executing such Notes, as evidenced by their execution
of such Notes.
SECTION 2.02. Restrictive Legends. Unless and until a Note is exchanged
for an Exchange Note in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, the U.S. Global Notes, Temporary
Offshore Global Notes and each U.S. Physical Note shall bear the following
legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR
(C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING
TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER
28
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
29
SECTION 2.03. Execution, Authentication and Denominations. Subject to
Article Four, the aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is unlimited. The Notes shall be executed by
two Officers of the Issuer. The signature of these Officers on the Notes may be
by facsimile or manual signature in the name and on behalf of the Issuer.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this Indenture,
the Trustee or an authenticating agent shall upon receipt of a Issuer Order
authenticate for original issue Notes in the aggregate principal amount
specified in such Issuer Order; provided that the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Issuer in
connection with such authentication of Notes. Such Issuer Order shall specify
the amount of Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated and in case of an issuance of Notes pursuant to
Section 2.15, shall certify that such issuance is in compliance with Article
Four.
The Trustee may appoint an authenticating agent to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee shall not be liable for the misconduct or negligence of any
authenticating agent appointed with due care.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple of
$1,000 in excess thereof.
SECTION 2.04. Registrar and Paying Agent. The Issuer shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar"), an office or agency where Notes may be presented
for payment (the "Paying Agent") and an office or agency where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served, which shall be in the Borough of Manhattan, The City of New York or at
the principal Corporate Trust Office of the Trustee. The Issuer shall cause the
Registrar to keep a register of the Notes and of their transfer and exchange
(the "Security Register"). The Issuer may have one or more co-Registrars and one
or more additional Paying Agents.
30
The Issuer shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Issuer shall give prompt written
notice to the Trustee of the name and address of any such Agent and any change
in the address of such Agent. If the Issuer fails to maintain a Registrar,
Paying Agent and/or agent for service of notices and demands, the Trustee shall
act as such Registrar, Paying Agent and/or agent for service of notices and
demands. The Issuer may remove any Agent upon written notice to such Agent and
the Trustee; provided that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Issuer and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Issuer, any Subsidiary of the
Issuer, or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar, and/or agent for service of notice and demands.
The Issuer initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands and Banque
Internationale a Luxembourg S.A., as Paying Agent. 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 ss.
312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee as of each Regular Record 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 Notes held by each Holder.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than 11:00
a.m. (New York City time) on each due date of the principal, premium, if any,
and interest on any Notes, the Issuer shall deposit with the Paying Agent money
in immediately available funds sufficient to pay such principal, premium, if
any, and interest so becoming due. The Issuer shall require each Paying Agent
other than the Trustee to agree in writing that such 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
Notes (whether such money has been paid to it by the Issuer or any other obligor
on the Notes), and such Paying Agent shall promptly notify the Trustee of any
default by the Issuer (or any other obligor on the Notes) in making any such
payment. The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee and account for any funds disbursed, and the Trustee may at
any time during the continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Issuer or any Subsidiary of the Issuer or any Affiliate of any of them acts
as Paying Agent, it will, on or before each due date of any principal of,
premium, if any, or interest on the Notes, segregate and hold in a separate
trust fund for the benefit of the Holders a sum of money sufficient to pay such
principal, premium, if any, or interest so
31
becoming due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and will promptly notify the Trustee
of its action or failure to act.
SECTION 2.06. Transfer and Exchange. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Issuer, the Trustee, and any agent of the Issuer shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and neither the Issuer, the
Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange Notes), the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including that such Notes are duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and Registrar duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder); provided
that no exchanges of Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Notes that are exchanged for Exchange Notes shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange or redemption
of the Notes, but the Issuer may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue, register the transfer of
or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes selected
for redemption under Section 3.03 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Notes. (a) The U.S. Global
Notes and Offshore Global Notes initially shall (i) be registered in the name of
the Depositary for such
32
Global Notes or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for such Depositary and (iii) bear legends as set forth in Section
2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee, from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Note. Neither the Issuer nor the Trustee shall be
liable for any delay by the Depositary in identifying the beneficial owners of
the Notes and the Issuer and the Trustee may conclusively rely on, and shall be
protected in relying on, instructions from the Depositary for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of any Notes to be issued).
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.08. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the Offshore Global
Notes, respectively, if (i) the Depositary notifies the Issuer that it is
unwilling or unable to continue as Depositary for the U.S. Global Notes or the
Offshore Global Notes, as the case may be, and a successor depositary is not
appointed by the Issuer within 90 days of such notice, (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request from the
Depositary or (iii) in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.08.
(c) Any beneficial interest in one of the Global Notes that is transferred
to a person who takes delivery in the form of an interest in the other Global
Note will, upon transfer, cease to be an interest in such Global Note and become
an interest in the other Global Note and, accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an
interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Notes to beneficial owners pursuant to paragraph
(b) of this Section 2.07, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global Notes in an
amount equal to the principal amount of the beneficial interest in the
33
U.S. Global Notes to be transferred, and the Issuer shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Notes of like
tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Note or
Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section 2.07, the U.S. Global Note or Offshore Global Note, as the case may be,
shall be deemed to be surrendered to the Trustee for cancellation, and the
Issuer shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount of U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b) or (d) of this Section 2.07 shall,
except as otherwise provided by paragraph (f) of Section 2.08, bear the legend
regarding transfer restrictions applicable to the U.S. Physical Note set forth
in Section 2.02.
(g) Any Offshore Physical Note delivered in exchange for an interest in
the Offshore Global Note pursuant to paragraph (b) of this Section 2.07 shall,
except as otherwise provided by paragraph (f) of Section 2.08, bear the legend
regarding transfer restrictions applicable to the Offshore Physical Note set
forth in Section 2.02.
(h) The registered holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.08. Special Transfer Provisions. Unless and until a Note is
exchanged for an Exchange Note in connection with an effective Registration
Statement pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Note to any Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note, whether
or not such Note bears the Private Placement Legend, if (x) the requested
transfer is after the time period referred to in Rule 144(k) under the
Securities Act or (y) the proposed transferee has delivered to the
Registrar (A) a certificate substantially in the form of Exhibit C hereto
and (B) if the aggregate principal amount of the Notes being transferred
is less than $100,000, an opinion of counsel acceptable to the Issuer that
such transfer is in compliance with the Securities Act.
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(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Note in an
amount equal to the principal amount of the beneficial interest in the
U.S. Global Note to be transferred, and the Issuer shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Notes of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a U.S. Physical Note or an
interest in the U.S. Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) U.S. Physical
Notes, the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on the
form of Note stating, or has otherwise advised the Issuer and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Issuer and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as it 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 its foregoing representations in order
to claim the exemption from registration provided by Rule 144A or (y) an
interest in the U.S. Global Note, the transfer of such interest may be
effected only through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Note to
be transferred consists of U.S. Physical Notes, upon receipt by the
Registrar of the documents referred to in clause (i) and instructions
given in accordance with the Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the U.S. Global Note in an amount
equal to the principal amount of the U.S. Physical Notes to be
transferred, and the Trustee shall cancel the U.S. Physical Note so
transferred.
(c) Transfers of Interests in the Temporary Offshore Global Note. The
following provisions shall apply with respect to registration of any proposed
transfer of interests in the Temporary Offshore Global Note:
35
(i) The Registrar shall register the transfer of any Note (x) if the
proposed transferee is a Non-U.S. Person and the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form of Note
stating, or has otherwise advised the Issuer and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the form
of Note stating, or has otherwise advised the Issuer and the Registrar in
writing, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as
it 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
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the U.S. Global Note in an
amount equal to the principal amount of the Temporary Offshore Global Note
to be transferred, and the Trustee shall decrease the amount of the
Temporary Offshore Global Note.
(d) Transfers of Interests in the Permanent Offshore Global Note or
Offshore Physical Notes to U.S. Persons. The following provisions shall apply
with respect to any transfer of interests in the Permanent Offshore Global Note
or Offshore Physical Notes to U.S. Persons: The Registrar shall register the
transfer of any such Note without requiring any additional certification.
(e) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Note to a Non-U.S. Person:
(i) Prior to September 22, 1997, the Registrar shall register any
proposed transfer of a Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit D hereto from the
proposed transferor.
(ii) On and after September 22, 1997, the Registrar shall register
any proposed transfer to any Non-U.S. Person if the Note to be transferred
is a U.S. Physical Note or an interest in the U.S. Global Note, upon
receipt of a certificate substantially in the form of Exhibit D hereto
from the proposed transferor.
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(iii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Note in an
amount equal to the principal amount of the beneficial interest in the
U.S. Global Note to be transferred, and (b) if the proposed transferee is
an Agent Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Offshore Global Note in an amount equal to
the principal amount of the U.S. Physical Notes or the U.S. Global Note,
as the case may be, to be transferred, and the Trustee shall cancel the
Physical Note, if any, so transferred or decrease the amount of the U.S.
Global Note.
(f) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement Legend unless either
(i) the circumstances contemplated by the fourth paragraph of Section 2.01 or
paragraph (a)(i)(x) or (e)(ii) of this Section 2.08 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Issuer and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(g) General. By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture. The
Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture. In connection with any transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Registrar or the Issuer such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Issuer with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
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SECTION 2.09. Replacement Notes. If a mutilated Note is surrendered to the
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding; provided that the requirements of the second
paragraph of Section 2.10 are met. If required by the Trustee or the Issuer, an
indemnity bond must be furnished that is sufficient in the judgment of both the
Trustee and the Issuer to protect the Issuer, the Trustee or any Agent from any
loss that any of them may suffer if a Note is replaced. The Issuer may charge
such Holder for its expenses and the expenses of the Trustee in replacing a
Note. In case any such mutilated, lost, destroyed or wrongfully taken Note has
become or is about to become due and payable, the Issuer in its discretion may
pay such Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Issuer and shall
be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Issuer receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Issuer or an Affiliate of the Issuer)
holds on the maturity date money sufficient to pay Notes payable on that date,
then on and after that date such Notes cease to be outstanding and interest on
them shall cease to accrue.
A Note does not cease to be outstanding because the Issuer or one of its
Affiliates holds such Note, provided, however, that in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Issuer or any other obligor upon the Notes or any
Affiliate of the Issuer or of such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not the Issuer or any other obligor upon the
Notes or any Affiliate of the Issuer or of such other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall
38
be substantially in the form of definitive Notes but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers executing the temporary Notes, as evidenced by their execution of
such temporary Notes. If temporary Notes are issued, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer designated for such purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 2.12. Cancellation. The Issuer at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Issuer has not issued and sold. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Notes surrendered for
transfer, exchange, payment or cancellation and shall destroy them in accordance
with its normal procedure. Except as expressly permitted by this Indenture, the
Issuer may not issue new Notes to replace Notes it has paid in full or delivered
to the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP," "CINS" or "ISIN" numbers (if then generally in use), and the Trustee
shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes. The Issuer will promptly notify the
Trustee of any change in "CUSIP," "CINS" or "ISIN" numbers for the Notes.
SECTION 2.14. Defaulted Interest. If the Issuer defaults in a payment of
interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.14 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by the
Issuer for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Issuer shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
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SECTION 2.15. Issuance of Additional Notes. The Issuer may, subject to
Article Four of this Indenture, issue additional Notes under this Indenture. The
Notes issued on the Closing Date and any additional Notes subsequently issued
shall be treated as a single class for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption; Mandatory Redemption. (a) The Notes
will be redeemable, at the Issuer's option, in whole or in part, at any time or
from time to time, on or after August 1, 2002 and prior to maturity, upon not
less than 30 nor more than 60 days' prior notice mailed by first-class mail to
each Holder's last address, as it appears in the Security Register, at the
following Redemption Prices (expressed in percentages of principal amount), plus
accrued and unpaid interest to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest due on an Interest Payment Date), if
redeemed during the 12-month period commencing August 1 of the years set forth
below:
Redemption
Year Price
---- ----------
2002.................... 104.500%
2003.................... 102.250
2004 and thereafter..... 100.000
(b) In the event that the Tender Offer is not consummated and certain
other conditions set forth in the Escrow Agreement are not satisfied by the
Expiration Date, or if it appears, in the sole judgment of the Issuer, that the
Tender Offer will not be consummated and such conditions will not be satisfied
by the Expiration Date, the Issuer shall redeem the Notes in whole, on 10 days'
prior notice mailed by first-class mail to each Holder's last address as it
appears in the Security Register, at a Redemption Price equal to 101% of the
principal amount of the Notes, plus accrued and unpaid interest to the
Redemption Date. On the earlier of (i) the Expiration Date, if the Trustee has
not received the Escrow Agreement Officers' Certificate stating that the Tender
Offer has been consummated (or will be consummated promptly upon the release of
the escrowed proceeds of the offering of the Notes to the Issuer) and certain
conditions have been satisfied and the Escrow Agreement Opinion of Counsel, and
(ii) such date on which the Trustee receives an officer's certificate under the
Escrow Agreement that the Tender Offer will not be consummated and such
conditions will not be satisfied by the Expiration Date, the Trustee will mail
by first-class mail to each Holder's last address as it appears in the Security
Register a written notice that the Notes will be redeemed within 10 days of such
notice.
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SECTION 3.02. Notices to Trustee. If the Issuer elects to redeem Notes
pursuant to Section 3.01(a) or (b), it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Notes to be redeemed.
The Issuer shall give notice provided for in this Section 3.02, (i)
pursuant to an election to redeem Notes under Section 3.01(a), in an Officers'
Certificate at least 45 days before the Redemption Date and (ii) pursuant to an
election to redeem Notes under Section 3.01(b), in an Officers' Certificate at
least 15 days before the Redemption Date (in each case unless a shorter period
shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Notes to Be Redeemed. If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed in compliance with the requirements, as certified to it by the Issuer,
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, by lot
or by such other method as the Trustee in its sole discretion shall deem fair
and appropriate; provided that no Notes of $1,000 in principal amount or less
shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption. Notes in denominations of $1,000 in principal
amount may only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 in principal amount or any integral multiple thereof)
of Notes that have denominations larger than $1,000 in principal amount.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Issuer and the Registrar promptly in writing of the Notes or portions of Notes
to be called for redemption.
SECTION 3.04. Notice of Redemption. With respect to any redemption of
Notes pursuant to Section 3.01(a), at least 30 days but not more than 60 days
before a Redemption Date, the Issuer, and with respect to any redemption of
Notes pursuant to Section 3.01(b), within 10 days before a Redemption Date, the
Trustee, shall mail a notice of redemption by first-class mail to each Holder
whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
41
(v) that, unless the Issuer defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is
to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion of the
principal amount (equal to $1,000 in principal amount or any integral
multiple thereof) of such Note to be redeemed and that, on and after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be reissued;
and
(vii) that, if any Note contains a CUSIP, CINS or ISIN number as
provided in Section 2.13, no representation is being made as to the
correctness of the CUSIP, CINS or ISIN number either as printed on the
Notes or as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Notes.
At the Issuer's request (which request may be revoked by the Issuer at any
time prior to the time at which the Trustee shall have given such notice to the
Holders), made in writing to the Trustee at least 45 days (or such shorter
period as shall be satisfactory to the Trustee) before a Redemption Date, the
Trustee shall give the notice of redemption pursuant to Section 3.01(a) in the
name and at the expense of the Issuer. If, however, the Issuer gives such notice
to the Holders, the Issuer shall concurrently deliver to the Trustee an
Officers' Certificate stating that such notice has been given. The Trustee shall
give the notice of redemption if and as required pursuant to Section 3.01(b).
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus accrued interest,
if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether or
not the Holder receives the notice. In any event, failure to give such notice,
or any defect therein, shall not affect the validity of the proceedings for the
redemption of Notes held by Holders to whom such notice was properly given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any Redemption
Date, the Issuer shall deposit with the Paying Agent (or, if the Issuer is
acting as its own Paying Agent, shall segregate and hold in trust as provided in
Section 2.05) money sufficient to pay the Redemption Price of and accrued
interest on all Notes to be redeemed on that date other than
42
Notes or portions thereof called for redemption on that date that have been
delivered by the Issuer to the Trustee for cancellation.
SECTION 3.07. Payment of Notes Called for Redemption. If notice of
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless the
Issuer shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Issuer at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders registered as such at the close of business on the relevant Regular
Record Date.
SECTION 3.08. Notes Redeemed in Part. Upon surrender of any Note that is
redeemed in part, the Issuer shall execute and the Trustee shall authenticate
and deliver to the Holder a new Note equal in principal amount to the unredeemed
portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. The Issuer shall pay the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Issuer, a Subsidiary of the Issuer, or any
Affiliate of any of them) holds on that date money designated for and sufficient
to pay the installment. If the Issuer or any Subsidiary of the Issuer or any
Affiliate of any of them acts as Paying Agent, an installment of principal,
premium, if any, or interest shall be considered paid on the due date if the
entity acting as Paying Agent complies with the last sentence of Section 2.05.
As provided in Section 6.09, upon any bankruptcy or reorganization procedure
relative to the Issuer, the Trustee shall serve as the Paying Agent, if any, for
the Notes.
The Issuer shall pay interest on overdue principal, premium, if any, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange or for presentation
for payment and where
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notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer will 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 Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Issuer may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes. The Issuer will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
The Issuer hereby initially designates the Corporate Trust Office of the
Trustee as such office of the Issuer in accordance with Section 2.04.
SECTION 4.03. Limitation on Indebtedness. The Issuer will not, and will
not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including any Acquired Indebtedness but excluding Permitted Indebtedness)
unless at the time of such event and after giving effect thereto on a pro forma
basis the Issuer's Fixed Charge Coverage Ratio for the four full fiscal quarters
immediately preceding such event taken as one period, calculated on the
assumption that (i) such Indebtedness, and any Indebtedness Incurred or repaid
after the first day of such four-quarter period and on or prior to the date of
such event (other than Indebtedness Incurred or repaid under a revolving credit
or similar arrangement to the extent of the commitment thereunder (or under any
predecessor revolving credit or similar arrangement) in effect on the last day
of such four-quarter period unless any portion of such Indebtedness is
projected, in the reasonable judgment of the senior management of the Issuer, to
remain outstanding for a period in excess of 12 months from the date of the
Incurrence thereof) had been Incurred or repaid on the first day of such
four-quarter period and (ii) any acquisition or disposition by the Issuer and
its Restricted Subsidiaries out of the ordinary course of business of any assets
constituting a company, division, line of business or business facility, in each
case after the first day of such four-quarter period, and on or prior to the
date of such event, had been consummated on the first day of such four-quarter
period (including giving pro forma effect to the application of the proceeds of
any such disposition), would have been at least equal to 2:00:1.00.
SECTION 4.04. Limitation on Restricted Payments. The Issuer will not, and
will not permit any Restricted Subsidiary to, directly or indirectly:
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(i) declare or pay any dividend on, or make any distribution to
holders of, its Capital Stock (other than (x) dividends or distributions
payable solely in shares of its Qualified Capital Stock or in options,
warrants or other rights to acquire such Qualified Capital Stock and (y)
pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries held by minority stockholders);
(ii) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock (or any option, warrant or other right to acquire
such Capital Stock) of (A) the Issuer or an Unrestricted Subsidiary held
by any Person or (B) a Restricted Subsidiary held by an Affiliate of the
Issuer (other than any Wholly Owned Restricted Subsidiary) or any holder
(or any Affiliate of such holder) of 5% or more of the Capital Stock of
the Issuer;
(iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value, in each case, prior to any
scheduled repayment, or maturity, any Subordinated Indebtedness; or
(iv) make any Investment in any Person (other than a Permitted
Investment)
(such payments described in (i) through (iv) collectively, "Restricted
Payments"), unless at the time of and after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution), (x) no Default or Event of
Default shall have occurred and be continuing and such Restricted Payment shall
not be an event which is, or after notice or lapse of time or both, would be, an
"event of default" under the terms of any Indebtedness of the Issuer or any
Restricted Subsidiary; (y) the Issuer could Incur $1.00 of additional
Indebtedness under Section 4.03 (other than Permitted Indebtedness); and (z) the
aggregate amount of all Restricted Payments, including any Restricted Payments
made pursuant to clauses (i) and (iv) of the succeeding paragraph, declared or
made after the Closing Date shall not exceed the sum of:
(A) 50% of the Consolidated Net Income of the Issuer accrued on a
cumulative basis during the period beginning on the first day of the
fiscal quarter beginning immediately following the Closing Date and ending
on the last day of the fiscal quarter ending prior to the date of such
proposed Restricted Payment for which reports have been filed with the
Commission or provided to the Trustee pursuant to Section 4.19 (or, if
such aggregate cumulative Consolidated Net Income shall be a loss, minus
100% of the amount of such loss);
(B) the aggregate Net Cash Proceeds received after the Closing Date
by the Issuer as capital contributions to the Issuer;
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(C) the aggregate Net Cash Proceeds received after the Closing Date
by the Issuer from the issuance and sale (other than to any of its
Subsidiaries) of shares of Qualified Capital Stock of the Issuer or any
options or warrants to purchase such shares (other than issuances to the
extent used to make a Restricted Payment under clause (ii) of the
subsequent paragraph) of Qualified Capital Stock of the Issuer;
(D) the aggregate Net Cash Proceeds received after the Closing Date
by the Issuer for debt securities that have been converted into or
exchanged for Qualified Capital Stock of the Issuer to the extent such
debt securities were originally sold for cash plus the aggregate cash
received by the Issuer at the time of such conversion or exchange; and
(E) $10 million.
None of the foregoing provisions shall be deemed to prohibit the following
Restricted Payments so long as in the case of clauses (ii), (iii) and (iv) at
the time of and after giving effect to the proposed Restricted Payment no
Default or Event of Default shall have occurred and be continuing:
(i) dividends paid within 60 days after the date of declaration if
at the date of declaration, such payment would be permitted by the
provisions of the preceding paragraph;
(ii) the redemption, repurchase or other acquisition or retirement
of Capital Stock of the Issuer or Subordinated Indebtedness in exchange
for, or out of the net proceeds of, a substantially concurrent issue and
sale (other than to a Subsidiary) of shares of Qualified Capital Stock of
the Issuer;
(iii) the redemption, repurchase, or other acquisition or retirement
of Subordinated Indebtedness of the Issuer, including premium, if any, and
accrued and unpaid interest, made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Indebtedness of the Issuer
permitted to be Incurred under clause (k) of the definition of "Permitted
Indebtedness"; and
(iv) Investments in an aggregate amount not to exceed $25 million in
any Person which owns, operates or services Healthcare Related Businesses.
SECTION 4.05. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Issuer will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any restriction of any kind, on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distribution on its Capital
Stock to the Issuer or any other Restricted Subsidiary, (ii) pay any
Indebtedness owed
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to the Issuer or any other Restricted Subsidiary, (iii) make any Investment in
the Issuer or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Issuer or any other Restricted Subsidiary, except (a)
any encumbrance or restriction existing under or by reason of applicable law;
(b) any encumbrance or restriction existing under or by reason of customary
non-assignment provisions of any lease governing a leasehold interest of the
Issuer, or any Restricted Subsidiary; (c) any restriction pursuant to an
agreement in effect at or entered into on the Closing Date; (d) any restriction,
with respect to a Restricted Subsidiary that is not a Subsidiary on the Closing
Date, in existence at the time such Person becomes a Restricted Subsidiary and
not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary; (e) any restriction existing under any agreement that
extends, renews, refinances or replaces the agreements containing the
restrictions in the foregoing clauses (c) and (d), provided that the terms and
conditions of any such restrictions are not materially less favorable to the
Holders than those under or pursuant to the agreement so extended, renewed,
refinanced or replaced (in the opinion of the Board of Directors of the Issuer
whose determination shall be conclusive); (f) arising or agreed to in the
ordinary course of business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or assets
of the Issuer or any Restricted Subsidiary in any manner material to the Issuer
or any Restricted Subsidiary; (g) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or property and
assets of, such Restricted Subsidiary; or (h) contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued if
(A) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant contained in such
Indebtedness or agreement, (B) the encumbrance or restriction is not materially
more disadvantageous to the Holders than is customary in comparable financings
(as determined by the Issuer) and (C) the Issuer determines that any such
encumbrance or restriction will not materially affect the Issuer's ability to
make principal or interest payments on the Notes.
SECTION 4.06. Limitations on Preferred Stock of Restricted Subsidiaries.
The Issuer will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any Preferred Stock of a Restricted
Subsidiary other than to the Issuer or a Wholly Owned Restricted Subsidiary, or
permit any Person (other than the Issuer or a Wholly Owned Restricted
Subsidiary) to own or hold any Preferred Stock of any Restricted Subsidiary,
unless such Restricted Subsidiary would be entitled to Incur Indebtedness
pursuant to Section 4.03 in an aggregate principal amount equal to the aggregate
liquidation value of the Preferred Stock to be issued.
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries. (a) The Issuer will not permit any Restricted Subsidiary, directly
or indirectly, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Issuer which is expressly by its terms pari
passu with or subordinate in right of payment to the Notes ("Guaranteed
Indebtedness") unless (i) such Restricted Subsidiary simultaneously executes and
47
delivers a supplemental indenture to the Indenture providing for a guarantee of
payment of the Notes by such Restricted Subsidiary and (ii) such Subsidiary
waives and will not in any manner whatsoever claim or take the benefit or
advantage of any rights of reimbursement, indemnity or subrogation or any other
rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Subsidiary Guarantee. If the
Guaranteed Indebtedness is (A) pari passu with the Notes, then the Guarantee of
such Guaranteed Indebtedness shall be pari passu with, or subordinate in right
of payment to, the Subsidiary Guarantee or (B) subordinated to the Notes, then
the Guarantee of such Guaranteed Indebtedness shall be subordinated in right of
payment to the Subsidiary Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated in right of payment to the Notes.
(b) Each guarantee created pursuant to the provisions described in the
foregoing paragraph is referred to as a "Subsidiary Guarantee," and the issuer
of each such Guarantee is referred to as a "Subsidiary Guarantor."
Notwithstanding the foregoing, any Subsidiary Guarantee may provide by its terms
that it (together with any Liens arising from such Subsidiary Guarantee) shall
be automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer, to any Person not an Affiliate of the Issuer, of all of
the Issuer's Capital Stock in, or all or substantially all the assets of, such
Subsidiary Guarantor, which is in compliance with this Indenture or (ii) the
release or discharge of the assumption, guarantee or other liability which
resulted in the creation of such Subsidiary Guarantee, except a release or
discharge by or as a result of payment under such Subsidiary Guarantee.
SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates.
The Issuer will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into, renew or extend any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Issuer (other than a Wholly Owned Restricted Subsidiary) unless (i) such
transaction or series of related transactions is on terms that are no less
favorable to the Issuer or such Restricted Subsidiary, as the case may be, than
would be available in a comparable transaction in arm's-length dealings with an
unrelated third party and (ii) with respect to a transaction or series of
related transactions involving payments in excess of $10 million in the
aggregate, the Issuer delivers an Officers' Certificate to the Trustee
certifying that (A) such transaction complies with clause (i) above and (B) such
transaction or series of related transactions shall have been approved by a
majority of the independent directors of the Board of Directors of the Issuer or
for which the Issuer or a Restricted Subsidiary has received a written opinion
of a nationally recognized investment banking firm stating that the transaction
is fair to the Issuer or such Restricted Subsidiary from a financial point of
view (a copy of which opinion shall be attached to such Officers' Certificate);
provided, however, that the foregoing restriction shall not apply to (a) the
payment of reasonable and customary regular fees to directors of the Issuer or
any of its Restricted Subsidiaries who are not employees of the Issuer or any
Affiliate, (b) the payment of monthly fees in accordance with Section 4.13 and
the reimbursement of expenses pursuant to the terms of management agreements
with Genesis or
48
any of its affiliates, (c) any payments or other transactions pursuant to any
tax-sharing agreement between the Issuer and any other Person with which the
Issuer files a consolidated tax return or with which the Issuer is part of a
consolidated group for tax purposes, (d) the Therapy Sale, provided the Issuer
or its Restricted Subsidiaries receives at least $20 million from the Therapy
Sale, (e) the Pharmacy Sale, provided the Issuer or its Restricted Subsidiaries
receives at least $50 million from the Pharmacy Sale, (f) transactions in the
ordinary course of business with Genesis or any of its Affiliates, related to
the Issuer's healthcare businesses or facilities; provided that the aggregate
amount of any such transactions in any twelve month period does not exceed $10
million, (g) any Restricted Payments not prohibited by Section 4.04 or (h) the
payment of fees and expenses in connection with the Transactions to Genesis,
Cypress and TPG.
SECTION 4.09. Limitation on Liens. The Issuer will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Liens of any kind upon any of its respective properties now owned or
acquired after the Closing Date or any income or profits therefrom securing (i)
any Indebtedness of the Issuer which is expressly subordinate in right of
payment to any other Indebtedness of the Issuer, unless the Notes are equally
and ratably secured; provided that, if such Indebtedness is subordinate in right
of payment to the Notes, the Lien securing such Indebtedness shall be
subordinate to the Lien securing the Notes with the same relative priority as
such subordinated Indebtedness shall have with respect to the Notes; provided
further that this clause (i) shall not be applicable to any Liens securing any
such Indebtedness which became Indebtedness of the Issuer pursuant to a
transaction permitted under Article Five or Liens securing Acquired Indebtedness
and, in each case, which Liens were in existence at the time of such transaction
or Incurrence of such Acquired Indebtedness and not Incurred in connection with
or in contemplation of such transaction or Incurrence, so long as such Liens do
not extend to or cover any property or assets of the Issuer or any Restricted
Subsidiary other than property or assets acquired in such transaction, or (ii)
any assumption, guarantee or other liability of any Restricted Subsidiary in
respect of any Indebtedness of the Issuer which is expressly subordinate in
right of payment to any other Indebtedness of the Issuer, unless the
substantially similar assumption, guarantee or other liability of such
Restricted Subsidiary in respect of the Notes is equally and ratably secured;
provided that, if such subordinated Indebtedness is subordinate in right of
payment to the Notes, the Lien securing the assumption, guarantee or other
liability of such Restricted Subsidiary in respect of such Indebtedness shall be
subordinate to the Lien securing the assumption, guarantee or other liability of
such Restricted Subsidiary with respect to the Notes with the same relative
priority as such subordinated Indebtedness shall have with respect to the Notes;
provided further that this clause (ii) shall not be applicable to Liens securing
any such assumption, guarantee or other liability which existed at the time such
Restricted Subsidiary became a Restricted Subsidiary and which Liens were in
existence at the time of such transaction (unless such assumption, guarantee or
other liability was Incurred in connection with or in contemplation of such
Person becoming a Restricted Subsidiary), so long as such Liens do not extend to
or cover any property or assets of the Issuer or any other Restricted
Subsidiary.
49
SECTION 4.10. Limitation on Asset Sales. The Issuer will not, and will not
permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i) the
consideration received by the Issuer or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of and (ii) at
least 75% of the consideration received consists of cash or Temporary Cash
Investments. In the event and to the extent that the Net Cash Proceeds received
by the Issuer or any of its Restricted Subsidiaries from one or more Asset Sales
occurring on or after the Closing Date in any period of 12 consecutive months
exceed $10 million, then the Issuer shall or shall cause the relevant Restricted
Subsidiary to (i) within 12 months after the date Net Cash Proceeds so received
exceed $10 million (A) apply an amount equal to such excess Net Cash Proceeds to
permanently repay Senior Indebtedness of the Issuer or any Subsidiary Guarantor
or Indebtedness of any other Restricted Subsidiary, in each case owing to a
Person other than the Issuer or any of its Restricted Subsidiaries or (B) invest
an equal amount, or the amount not so applied pursuant to clause (A) (or enter
into a definitive agreement committing to so invest within 12 months after the
date of such agreement; provided that if any such agreement is terminated, the
Issuer may invest such Net Cash Proceeds prior to the end of the 12-month period
referred to in clause (i) or six months after the termination of such agreement,
whichever is later), in property or assets (other than current assets) of a
nature or type or that are used in a business (or in a company having property
and assets of a nature or type, or engaged in a business) similar or related to
the nature or type of the property and assets of, or the business of, the Issuer
and its Restricted Subsidiaries existing on the date of such investment and (ii)
apply (no later than the end of the 12-month period referred to in clause (i))
such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i))
as provided in the following paragraph of this Section 4.10. The amount of such
excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 12-month period as set forth in clause (i) of the preceding
sentence and not applied as so required by the end of such period shall
constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 4.10 totals at least $10 million, the Issuer must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Notes equal to the Excess Proceeds on such date, at a purchase price equal to
100% of the principal amount of the Notes, plus, in each case, accrued interest
(if any) to the Payment Date.
SECTION 4.11. Repurchase of Notes upon a Change in Control. The Issuer
must commence, within 30 days of the occurrence of a Change in Control, and
consummate an Offer to Purchase for all Notes then outstanding, at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest (if
any) to the Payment Date.
Within 30 days following a Change of Control, the Issuer shall mail a
notice to each Holder and the Trustee stating the terms of the Change of
Control.
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SECTION 4.12. Limitation on Senior Subordinated Indebtedness. The Issuer
will not Incur any Indebtedness, other than the Notes, that is subordinate in
right of payment to any Senior Indebtedness, unless such Indebtedness is also
pari passu with, or subordinate in right of payment to, the Notes pursuant to
subordination provisions substantially similar to those contained in the
Indenture; provided that the foregoing limitation shall not apply to
distinctions between categories of Senior Indebtedness of the Issuer that exist
by reason of any Liens or Guarantees arising or created in respect of some but
not all of such Senior Indebtedness.
SECTION 4.13. Limitation on Management Fees. The Issuer will not, and will
not permit any of its Restricted Subsidiaries to, pay any management fees in any
month to the extent such fees would exceed the greater of (i) $1,991,666 and
(ii) 4% of the Issuer's consolidated net revenues for such month; provided that
the Issuer may pay management fees in excess of such amount (including accrued
fees) to the extent that (A) both before and after giving effect to the proposed
payment (x) no Default or Event of Default shall have occurred and be continuing
and (y) the Issuer's Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period and calculated on
the assumption that (I) any Indebtedness Incurred or repaid after the first day
of such four-quarter period and on or prior to the date of such payment (other
than Indebtedness Incurred or repaid under a revolving credit or similar
arrangement to the extent of the commitment thereunder (or under any predecessor
revolving credit or similar arrangement) in effect on the last day of such four
quarter period unless any portion of such Indebtedness is projected, in the
reasonable judgment of the senior management of the Issuer, to remain
outstanding for a period in excess of 12 months from the date of the Incurrence
thereof), had been Incurred or repaid on the first day of such four-quarter
period, (II) any acquisition or disposition by the Issuer and its Restricted
Subsidiaries out of the ordinary course of business of any assets constituting a
company, division, line of business or business facility, in each case after the
first day of such four-quarter period, and on or prior to the date of such
payment, had been consummated on the first day of such four-quarter period
(including giving pro forma effect to the application of the proceeds of any
such disposition) and (III) the proposed management fees were paid during such
period, would have been at least equal to 2:00:1.00; and (B) the aggregate
amount of management fees paid with respect to any month do not exceed 6% of the
Issuer's consolidated net revenues for such month. To the extent the Issuer is
prohibited from paying any management fees as a result of clause (y) of the
proviso to the preceding sentence, the Issuer may accrue such fees until they
may be paid in accordance with this Section 4.13 provided the payment of such
accrued fees is subordinated in right of payment to the prior payment in full in
cash or Cash Equivalents of all of the Issuer's obligations under the Notes and
this Indenture.
SECTION 4.14. Existence. Subject to Articles Four and Five of this
Indenture, the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Issuer and each such Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), material
51
licenses and franchises of the Issuer and each such Subsidiary; provided that
the Issuer shall not be required to preserve any such right, license or
franchise, or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and its Restricted Subsidiaries taken as a whole.
SECTION 4.15. Payment of Taxes and Other Claims. The Issuer will pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Issuer or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Issuer or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a lien upon the property of the Issuer or
any such Subsidiary; provided that the Issuer shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established.
SECTION 4.16. Maintenance of Properties and Insurance. The Issuer will
cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Issuer may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section 4.16 shall prevent the Issuer or any such Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Issuer, desirable in the conduct of the business of the Issuer or such
Subsidiary.
The Issuer will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Issuer or any such Restricted Subsidiary, as the case may
be, is then conducting business.
SECTION 4.17. Notice of Defaults. In the event that the Issuer becomes
aware of any Default or Event of Default, the Issuer, promptly after it becomes
aware thereof, will give written notice thereof to the Trustee.
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SECTION 4.18. Compliance Certificates. (a) The Issuer shall deliver to the
Trustee, within 45 days after the end of each fiscal quarter (90 days after the
end of the last fiscal quarter of each year), an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default that occurred
during such fiscal quarter. In the case of the Officers' Certificate delivered
within 90 days after the end of the Issuer's fiscal year, such certificate shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Issuer that a review
has been conducted of the activities of the Issuer and its Restricted
Subsidiaries and the Issuer's and its Restricted Subsidiaries' performance under
this Indenture and that the Issuer has complied with all conditions and
covenants under this Indenture. For purposes of this Section 4.18, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If the officers of the
Issuer signing such certificate do know of such a Default or Event of Default,
the certificate shall describe any such Default or Event of Default and its
status. The first certificate to be delivered pursuant to this Section 4.18(a)
shall be for the first fiscal quarter beginning after the execution of this
Indenture.
(b) The Issuer shall deliver to the Trustee, within 90 days after the end
of the Issuer's fiscal year, a certificate signed by the Issuer's independent
certified public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, (ii) that they have read the most recent Officers'
Certificate delivered to the Trustee pursuant to paragraph (a) of this Section
4.18 and (iii) whether, in connection with their audit examination, anything
came to their attention that caused them to believe that the Issuer was not in
compliance with any of the terms, covenants, provisions or conditions of Article
Four and Section 5.01 of this Indenture as they pertain to accounting matters
and, if any Default or Event of Default has come to their attention, specifying
the nature and period of existence thereof; provided that such independent
certified public accountants shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards in effect at
the date of such examination.
SECTION 4.19. Commission Reports and Reports to Holders. At all times from
and after the earlier of (i) the date of the commencement of an Exchange Offer
or the effectiveness of the Shelf Registration Statement (the "Registration")
and (ii) the date that is six months after the Closing Date, in either case,
whether or not the Issuer is then required to file reports with the Commission,
the Issuer shall file with the Commission the annual, quarterly and other
reports and other information required by Section 13(a) or 15(d) of the Exchange
Act, regardless of whether such sections of the Exchange Act are applicable to
the Issuer (unless the Commission will not accept such a filing). The Issuer
shall mail or cause to be mailed copies of such reports and information to
Holders and the Trustee within 15 days after the date it files such reports and
information with the Commission or after the date it would have been required to
file such reports and information with the Commission had it been subject to
such sections
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of the Exchange Act; provided, however, that the copies of such reports and
information mailed to Holders may omit exhibits, which the Issuer will supply to
any Holder at such Holder's request. In addition, at all times prior to the
earlier of the date of the Registration and the date that is six months after
the Closing Date, the Issuer shall, at its cost, deliver to each Holder of the
Notes quarterly and annual reports substantially equivalent to those which would
be required by the Exchange Act. In addition, at all times prior to the
Registration, upon the request of any Holder or any prospective purchaser of the
Notes designated by a Holder, the Issuer shall supply to such Holder or such
prospective purchaser the information required under Rule 144A under the
Securities Act.
SECTION 4.20. Waiver of Stay, Extension or Usury Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Issuer from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Issuer hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Issuer May Merge, Etc. The Issuer shall not, in a
single transaction or through a series of related transactions, consolidate with
or merge with or into any other Person or sell, assign, convey, transfer or
lease or otherwise dispose of all or substantially all of its properties and
assets as an entirety to any Person or group of affiliated Persons, or permit
any of its Restricted Subsidiaries to enter into any such transaction or
transactions if such transaction or transactions, in the aggregate, would result
in a sale, assignment, transfer, lease or disposal of all or substantially all
of the properties and assets of the Issuer and its Restricted Subsidiaries on a
consolidated basis to any other Person or group of affiliated Persons, unless at
the time and after giving effect thereto (i) either (A) the Issuer shall be the
continuing corporation, or (B) the Person (if other than the Issuer) formed by
such consolidation or into which the Issuer is merged or the Person which
acquires by conveyance, transfer, lease or disposition the properties and assets
of the Issuer, substantially as an entirety (the "Surviving Entity") shall be a
corporation duly organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall, in
either case, expressly assume, by an indenture supplemental to this Indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Issuer under the Notes and this Indenture, and this
Indenture shall remain in full force and effect; (ii) immediately before
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and immediately after giving effect to such transaction on a pro forma basis
(and treating any Indebtedness not previously an obligation of the Issuer or a
Restricted Subsidiary which becomes the obligation of the Issuer or any of its
Restricted Subsidiaries in connection with or as a result of such transaction as
having been incurred at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction on a pro forma basis, the Consolidated Net Worth of
the Issuer (or the Surviving Entity if the Issuer is not the continuing obligor
under the Indenture) is at least equal to the Consolidated Net Worth of the
Issuer immediately before such transaction; (iv) immediately before and
immediately after giving effect to such transaction on a pro forma basis (and
treating any Indebtedness not previously an obligation of the Issuer or a
Restricted Subsidiary which becomes the obligation of the Issuer or any of its
Restricted Subsidiaries in connection with or as a result of such transaction as
having been incurred at the time of such transaction), the Issuer (or the
Surviving Entity if the Issuer is not the continuing obligor under this
Indenture) could incur $1.00 of additional Indebtedness under Section 4.03
(other than Permitted Indebtedness); provided that this clause (iv) shall not
apply to (x) a consolidation or merger with or into a Wholly Owned Restricted
Subsidiary with a positive net worth; provided that, in connection with any such
merger or consolidation, no consideration (other than Qualified Capital Stock in
the Surviving Entity or the Issuer) shall be issued or distributed to the
stockholders of the Issuer or (y) the merger of Genesis ElderCare Acquisition
Corp. with and into Multicare; and (v) the Issuer or the Surviving Entity shall
have delivered to the Trustee an Officers' Certificate and an opinion of
counsel, each stating that such consolidation, merger, transfer, lease or
disposition and such supplemental indenture comply with the terms of this
Indenture.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger, or
any sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Issuer in accordance with
the immediately preceding paragraph, the successor Person formed by such
consolidation or into which the Issuer is merged or the successor Person to
which such sale, assignment, conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Issuer under this Indenture with the same effect as if such successor
had been named as the Issuer herein. When a successor assumes all the
obligations of its predecessor under this Indenture and the Notes, the
predecessor shall be released from those obligations; provided that in the case
of a transfer by lease, the predecessor shall not be released from the payment
of principal and interest on the Notes.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall occur with
respect to the Notes if:
(a) the Issuer defaults in the payment of the principal of (or
premium, if any, on) any Note when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by Article Eleven;
(b) the Issuer defaults in the payment of interest on any Note when
the same becomes due and payable, and such default continues for a period
of 30 days, whether or not such payment is prohibited by Article Eleven;
(c) the Issuer defaults in the performance of, or breaches the
provisions of, Article Five or Section 3.01(b) or fails to make or
consummate an Offer to Purchase in accordance with Section 4.10 or 4.11;
(d) the Issuer defaults in the performance of or breaches any
covenant or agreement of the Issuer in this Indenture or under the Notes
(other than a default specified in clause (a), (b) or (c) above), and such
default or breach continues for a period of 30 consecutive days after
written notice by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
(e) there occurs with respect to any issue or issues of Indebtedness
of the Issuer or any Significant Subsidiary having an outstanding
principal amount of $10 million or more in the aggregate for all such
issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or
such acceleration has not been rescinded or annulled within 30 days of
such acceleration and/or (II) the failure to make a principal payment at
the final (but not any interim) fixed maturity and such defaulted payment
shall not have been made, waived or extended within 30 days of such
payment default;
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Issuer or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate
amount for all such final judgments or orders outstanding and not paid or
discharged against all such Persons to
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exceed $10 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Issuer or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or any Significant
Subsidiary or for all or substantially all of the property and assets of
the Issuer or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Issuer or any Significant Subsidiary
and, in each case, such decree or order shall remain unstayed and in
effect for a period of 30 consecutive days;
(h) the Issuer or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or any Significant Subsidiary or for all or substantially all of
the property and assets of the Issuer or any Significant Subsidiary or (C)
effects any general assignment for the benefit of creditors; or
(i) the Guaranty Documents are not executed and delivered within
three Business Days after the consummation of the Tender Offer (unless
prior to or at the end of such three Business Days the Merger shall have
been consummated).
SECTION 6.02. Acceleration. If an Event of Default (other than an Event of
Default specified in clause (g) or (h) of Section 6.01 that occurs with respect
to the Issuer) occurs and is continuing under this Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Issuer (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal of, premium, if any, and accrued interest on the
Notes to be immediately due and payable. Upon a declaration of acceleration,
such principal, premium, if any, and accrued interest shall be immediately due
and payable. In the event of a declaration of acceleration because an Event of
Default set forth in clause (e) of Section 6.01 has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to clause (e)
shall be remedied or cured by the Issuer or the relevant Significant Subsidiary
or waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) of Section 6.01 occurs with respect to the
Issuer, the principal of, premium, if any, and accrued interest on the Notes
then outstanding
57
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The Holders of at least a majority in principal amount of the outstanding
Notes, by written notice to the Issuer and to the Trustee, may waive all past
defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of
the principal of, premium, if any, and interest on the Notes that have become
due solely by such declaration of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Notes shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and
9.02, the Holders of at least a majority in principal amount of the outstanding
Notes, by notice to the Trustee, may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of,
premium, if any, or interest on any Note as specified in clause (a) or (b) of
Section 6.01 or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a majority in
aggregate principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of
Notes not joining in the giving of such direction and may take any other action
it deems proper that is not inconsistent with any such direction received from
Holders of Notes.
SECTION 6.06. Limitation on Suits. A Holder may not pursue any remedy with
respect to this Indenture or the Notes unless:
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(i) the Holder gives the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer (and if requested provide) the
Trustee indemnity satisfactory to the Trustee against any costs, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.06, the
Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes have concurred in any request or direction of the Trustee to pursue any
remedy available to the Trustee or the Holders with respect to this Indenture or
the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
The limitations set forth in this Section 6.06 shall not apply to the
right of any Holder of a Note to receive payment of the principal of, premium,
if any, or interest on, such Note or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes, which right shall
not be impaired or affected without the consent of the Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium, if any, or interest on, such Note or to
bring suit for the enforcement of any such payment, on or after the due date
expressed in the Notes, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (a), (b) or (c) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Issuer or any other
obligor of the Notes for the whole amount of principal, premium, if any, and
accrued interest remaining unpaid, together with interest on overdue principal,
premium, if any, and, to the extent that payment of such interest is lawful,
interest on overdue
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installments of interest, in each case at the rate specified in the Notes, and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings relative to the Issuer
(or any other obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due 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. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for principal of,
premium, if any, and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal, premium, if any, and interest,
respectively; and
Third: to the Issuer or any other obligors of the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Issuer, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted
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by it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Issuer,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Issuer, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Notes in Section 2.09, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
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Whether or not herein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections 315(a)
through (d):
(i) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in any such document;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 12.04. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request or direction;
(v) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the written direction of the Holders of a majority in principal
amount of the outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate; and
(vii) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report,
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notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Issuer personally or by
agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for the Issuer's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement in
the Notes other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Holder in the
manner and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 45 days after it occurs, unless such Default or Event of
Default has been cured; provided, however, that, except in the case of a default
in the payment of the principal of, premium, if any, or interest on any Note,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
August 1, beginning with August 1, 1998, the Trustee shall mail to each Holder
as provided in TIA Section 313(c) a brief report dated as of such August 1, if
required by TIA Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services.
The compensation of the Trustee shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses and advances incurred or made
by the Trustee. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Issuer shall indemnify the Trustee against any and all losses,
liabilities, obligations, damages, penalties, judgments, actions, suits,
proceedings, reasonable costs and expenses
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(including reasonable fees and disbursements of counsel) of any kind whatsoever
which may be incurred by the Trustee in connection with any investigative,
administrative or judicial proceeding (whether or not such indemnified party is
designated a party to such proceeding) arising out of or in connection with the
acceptance or administration of its duties under this Indenture; provided,
however, that the Issuer need not reimburse any expense or indemnify against any
loss, obligation, damage, penalty, judgment, action, suit, proceeding,
reasonable cost or expense (including reasonable fees and disbursements of
counsel) of any kind whatsoever which may be incurred by the Trustee in
connection with any investigative, administrative or judicial proceeding
(whether or not such indemnified party is designated a party to such proceeding)
in which it is determined that the Trustee acted with negligence, bad faith or
willful misconduct. The Trustee shall notify the Issuer promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Issuer
shall not relieve the Issuer of its obligations hereunder, unless the Issuer is
materially prejudiced thereby. The Issuer shall defend the claim and the Trustee
shall cooperate in the defense. Unless otherwise set forth herein, the Trustee
may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of such counsel. The Issuer need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as Trustee, except money or property
held by the Trustee pursuant to the Escrow Agreement and money or property held
in trust to pay principal of, premium, if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (g) or (h) of Section 6.01, the expenses
and the compensation for the services will be intended to constitute expenses of
administration under Title 11 of the Bankruptcy Law or any applicable federal or
state law for the relief of debtors.
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
7.08.
The Trustee may resign at any time by so notifying the Issuer in writing
at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Trustee in writing and may appoint a successor Trustee with the
consent of the Issuer. The Issuer may remove the Trustee if: (i) the Trustee is
no longer eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt
or an insolvent; (iii) a receiver or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of acting
pursuant to the requirement of TIA Section 310(b).
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If the Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee for any reason, the Issuer 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 outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders
of a majority in principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuer. Immediately after the delivery of
such written acceptance, subject to the lien provided in Section 7.07, (i) the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
If the Trustee is no longer eligible under Section 7.10, any Holder who
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Issuer shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Issuer's obligation under Section 7.07 shall continue for the benefit of the
retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Issuer. Money held in trust
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by the Trustee need not be segregated from other funds except to the extent
required by law and except for money held in trust under Article Eight of this
Indenture.
SECTION 7.12. Withholding Taxes. The Trustee, as agent for the Issuer,
shall exclude and withhold from each payment of principal and interest and other
amounts due hereunder or under the Notes any and all withholding taxes
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Notes, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the Holders of
the Notes, that it will file any necessary withholding tax returns or statements
when due, and that, as promptly as possible after the payment thereof, it will
deliver to each Holder of a Note appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such Holders may
reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Issuer's Obligations. Except as otherwise
provided in this Section 8.01, the Issuer may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes that have been replaced or Notes that are
paid pursuant to Section 4.01 or Notes for whose payment money or
securities have theretofore been held in trust and thereafter repaid to
the Issuer, as provided in Section 8.05) have been delivered to the
Trustee for cancellation and the Issuer has paid all sums payable by it
hereunder; or
(ii) (A) the Notes mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption, (B) the Issuer
irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if, any,
and interest on the Notes to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder, (C) no Default or Event
of Default with respect to the Notes shall have occurred and be continuing
on the date of such deposit, (D) such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by which
it is bound and
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(E) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), the Issuer's obligations under
Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Issuer's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09,
2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05, 8.06 and Article Eleven (with respect
to payments in respect of Indebtedness that is subordinated in right of payment
to any Senior Indebtedness other than with respect to the assets held in trust
as described in the foregoing clause (ii)) shall survive until the Notes are no
longer outstanding. Thereafter, only the Issuer's obligations in Sections 7.07,
8.05 and 8.06 shall survive. After any such irrevocable deposit, the Trustee
upon request shall acknowledge in writing the discharge of the Issuer's
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the date of the deposit referred to
in clause (A) of this Section 8.02, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Issuer, shall execute proper instruments acknowledging the same, except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of
Holders to receive payments of principal thereof and interest thereon, (iv) the
Issuer's obligations under Section 4.02, (v) the rights, obligations and
immunities of the Trustee hereunder and (vi) the rights of the Holders as
beneficiaries of this Indenture with respect to the property so deposited with
the Trustee payable to all or any of them; provided that the following
conditions shall have been satisfied:
(A) with reference to this Section 8.02, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10 acting as the
agent of the Trustee) and conveyed all right, title and interest for the
benefit of the Holders, under the terms of an irrevocable trust agreement
in form and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest,
if any, on the Notes, and dedicated solely to, the benefit of the Holders,
in and to (1) money in an amount, (2) U.S. Government Obligations that,
through the payment of interest, premium, if any, and principal in respect
thereof in accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this clause (A),
money in an amount or (3) a combination thereof in an amount 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, without consideration of the reinvestment
of such interest and after payment of all federal, state and local taxes
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or other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and accrued interest on the
outstanding Notes at the Stated Maturity of such principal or interest;
provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest with respect to
the Notes;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which it is bound and is
permitted by Article Eleven;
(C) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or during the period ending on the
123rd day after such date of deposit;
(D) the Issuer shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Issuer's exercise of its
option under this Section 8.02 and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would
have been the case if such option had not been exercised or (y) an Opinion
of Counsel to the same effect as the ruling described in clause (x) above
accompanied by a ruling to that effect published by the Internal Revenue
Service, unless there has been a change in the applicable federal income
tax law since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an Opinion of
Counsel to the effect that (x) the creation of the defeasance trust does
not violate the Investment Issuer Act of 1940 and (y) after the passage of
123 days following the deposit (except, with respect to any trust funds
for the account of any Holder who may be deemed to be an "insider" for
purposes of the Bankruptcy Law, after one year following the deposit), the
trust funds will not be subject to the effect of Section 547 of the
Bankruptcy Law or Section 15 of the New York Debtor and Creditor Law in a
case commenced by or against the Issuer under either such statute, and
either (I) the trust funds will no longer remain the property of the
Issuer (and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (II) if a court were to rule under any
such law in any case or proceeding that the trust funds remained property
of the Issuer, (a) assuming such trust funds remained in the possession of
the Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a valid
and perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of the
Bankruptcy Law on interest on the trust funds accruing after the
commencement of a case under such statute and (b) the Holders will be
entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or proceeding;
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(E) if the Notes are then listed on a national securities exchange,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to
the effect that such deposit, defeasance and discharge will not cause the
Notes to be delisted; and
(F) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (D)(2)(y) of this Section 8.02, none of the
Issuer's obligations under this Indenture shall be discharged. Subsequent to the
end of such 123-day (or one year) period with respect to this Section 8.02, the
Issuer's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09,
2.14, 4.01, 4.02, 7.07, 7.08, 8.05, 8.06 and Article Eleven (with respect to
payments in respect of Indebtedness that is subordinated in right of payment to
any Senior Indebtedness other than with respect to the assets held in trust as
described in this Section 8.02) shall survive until the Notes are no longer
outstanding. Thereafter, only the Issuer's obligations in Sections 7.07, 8.05
and 8.06 shall survive. If and when a ruling from the Internal Revenue Service
or an Opinion of Counsel referred to in clause (D)(1) of this Section 8.02 is
able to be provided specifically without regard to, and not in reliance upon,
the continuance of the Issuer's obligations under Section 4.01, then the
Issuer's obligations under such Section 4.01 shall cease upon delivery to the
Trustee of such ruling or Opinion of Counsel and compliance with the other
conditions precedent provided for herein relating to the defeasance contemplated
by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Issuer's obligations under the Notes
and this Indenture except for those surviving obligations in the immediately
preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Issuer may omit to
comply with any term, provision or condition set forth in clauses (iii) and (iv)
of Section 5.01 and Sections 4.03 through 4.19, clause (c) of Section 6.01 with
respect to clauses (iii) and (iv) of Section 5.01, clause (d) of Section 6.01
with respect to Sections 4.03 through 4.19, and clauses (e) and (f) of Section
6.01 shall be deemed not to be Events of Default, and Article Eleven shall not
apply to the money and/or U.S. Government Obligations held by the trust referred
to in clause (i) below, in each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10) and conveyed
all right, title and interest to the Trustee for the benefit of the
Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of,
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premium, if any, and interest, if any, on the Notes, and dedicated solely
to, the benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and principal
in respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this clause
(i), money in an amount or (C) a combination thereof in an amount
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, without consideration of the
reinvestment of such interest and after payment of all federal, state and
local taxes or other charges and assessments in respect thereof payable by
the Trustee, the principal of, premium, if any, and interest on the
outstanding Notes on the Stated Maturity of such principal or interest;
provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest with respect to
the Notes;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which it is bound and is
permitted by Article Eleven;
(iii) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or during the period ending on the
123rd day after such date of deposit;
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the creation of the defeasance trust does not
violate the Investment Issuer Act of 1940, (B) the Trustee, for the
benefit of the Holders, has a valid first-priority security interest in
the trust funds, (C) the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and (D)
after the passage of 123 days following the deposit (except, with respect
to any trust funds for the account of any Holder who may be deemed to be
an "insider" for purposes of the Bankruptcy Law, after one year following
the deposit), the trust funds will not be subject to the effect of Section
547 of the Bankruptcy Law or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Issuer under either
such statute, and either (1) the trust funds will no longer remain the
property of the Issuer (and therefore will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (2) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Issuer, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the
Holders, a valid and perfected
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security interest in such trust funds that is not avoidable in bankruptcy
or otherwise (except for the effect of Section 552(b) of the Bankruptcy
Law on interest on the trust funds accruing after the commencement of a
case under such statute) and (y) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if such trust
funds are used in such case or proceeding;
(v) if the Notes are then listed on a national securities exchange,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to
the effect that such deposit defeasance and discharge will not cause the
Notes to be delisted; and
(vi) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium, if any, and interest on the Notes; but such money need
not be segregated from other funds except to the extent required by law.
SECTION 8.05. Repayment to Issuer. Subject to Sections 7.07, 8.01, 8.02
and 8.03, the Trustee and the Paying Agent shall promptly pay to the Issuer upon
request set forth in an Officers' Certificate any excess money held by them at
any time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Issuer upon request any
money held by them for the payment of principal, premium, if any, or interest
that remains unclaimed for two years. After payment to the Issuer, Holders
entitled to such money must look to the Issuer for payment as general creditors
unless an applicable law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01,
8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Issuer's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or
8.03, as the case may be; provided that, if the Issuer has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Issuer shall be subrogated to
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the rights of the Holders of such Notes to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Issuer, when authorized by a
resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not, in the
good faith opinion of the Board of Directors as evidenced by a Board
Resolution, adversely affect the interests of the Holders in any material
respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(5) to make any change that, in the good faith opinion of the Board
of Directors as evidenced by a Board Resolution, does not materially and
adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07
and without prior notice to the Holders, the Issuer, when authorized by its
Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture, the Notes and the Escrow
Agreement with the written consent of the Holders of a majority in principal
amount of the Notes then outstanding, and the Holders of a majority in principal
amount of the Notes then outstanding by written notice to the Trustee may waive
future compliance by the Issuer with any provision of this Indenture, the Notes
and the Escrow Agreement.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:
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(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or adversely affect any right of repayment at the
option of any Holder of any Note, or change any place of payment where, or
the currency in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of outstanding Notes
the consent of whose Holders is required for any such supplemental
indenture, for any waiver of compliance with certain provisions of this
Indenture or certain Defaults and their consequences provided for in this
Indenture;
(iii) waive a default in the payment of principal of, premium, if
any, or interest on, any Note;
(iv) modify Article Eleven or the Escrow Agreement in a manner that
adversely affects the rights of any Holder in any material respect; or
(v) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Note affected thereby.
Notwithstanding the foregoing and without affecting any restrictions on
amendments to this Indenture under the Credit Facility, any amendment to the
provisions of Article Eleven that is adverse to the holders of Senior
Indebtedness shall require the consent of such holders.
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,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuer shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Issuer will mail
supplemental indentures to Holders upon request. Any failure of the Issuer 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.
SECTION 9.03. Revocation and Effect of Consent. 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 Note or portion of a Note that
evidences the same debt as the Note of
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the consenting Holder, even if notation of the consent is not made on any Note.
However, any such Holder or subsequent Holder may revoke the consent as to its
Note or portion of its Note. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the time the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective on receipt by the Trustee of written consents from the Holders
of the requisite percentage in principal amount of the outstanding Notes.
The Issuer may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it is of the type described in any of clauses (i) through
(v) of the second paragraph of Section 9.02. In case of an amendment or waiver
of the type described in clauses (i) through (v) of the second paragraph of
Section 9.02, the amendment or waiver shall bind each Holder who has consented
to it and every subsequent Holder of a Note that evidences the same indebtedness
as the Note of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver it to the Trustee. At the Issuer's expense, the Trustee may
place an appropriate notation on the Note about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any Note
thereafter authenticated. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation, or issue a new Note, shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Issuer. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
ARTICLE TEN
SECURITY
SECTION 10.01. Security. (a) On the Closing Date, the Issuer shall (i)
enter into the Escrow Agreement and comply with the terms and provisions thereof
and (ii) cause the Collateral to be pledged to the Trustee for the benefit of
the Holders in an amount equal to the net proceeds to be received by the Issuer
from the sale of the Notes. The Collateral shall be pledged by the Issuer to the
Trustee for the benefit of the Holders and shall be held by the Trustee in the
Cash Collateral Account pending disposition pursuant to the terms of the Escrow
Agreement.
(b) Each Holder, by its acceptance of a Note, consents and agrees to the
terms of the Escrow Agreement (including, without limitation, the provisions
providing for foreclosure and release of the Collateral) as the same may be in
effect or may be amended from time to time in accordance with its terms, and
authorizes and directs the Trustee to enter into the Escrow Agreement and to
perform its respective obligations and exercise its respective rights thereunder
in accordance therewith. The Issuer will do or cause to be done all such acts
and things as may be necessary or proper, or as may be required by the
provisions of the Escrow Agreement, to assure and confirm to the Trustee the
security interest in the Collateral contemplated hereby, by the Escrow Agreement
or any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purposes herein expressed. The
Issuer shall take, or shall cause to be taken, any and all actions reasonably
required (and any action requested by the Trustee) to cause the Escrow Agreement
to create and maintain, as security for the obligations of the Issuer under this
Indenture and the Notes, valid and enforceable first priority liens in and on
all the Collateral, in favor of the Trustee, superior to and prior to the rights
of third Persons and subject to no other Liens.
(c) The release of any Collateral pursuant to the Escrow Agreement will
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof if and to the extent the Collateral is released pursuant
to this Indenture and the Escrow Agreement. To the extent applicable, the Issuer
shall cause TIA Section 314(d) relating to the release of property or securities
from the Lien and security interest of the Escrow Agreement (other than pursuant
to Sections 7(c) and 7(d) thereof) and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Escrow Agreement to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Issuer, except in cases
where TIA Section 314(d) requires that such
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certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser or other expert selected by the Issuer.
(d) The Issuer shall cause TIA Section 314(b), relating to opinions of
counsel regarding the Lien under the Escrow Agreement, to be complied with. The
Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such instruments.
(e) The Trustee, in its sole discretion and without the consent of the
Holders, may, and at the request of the Holders of at least 25% in aggregate
principal amount of Notes then outstanding shall, on behalf of the Holders, take
all actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Escrow Agreement and (ii) collect and receive any and all amounts
payable in respect of the obligations of the Issuer thereunder. The Trustee
shall have power to institute and to maintain such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Trustee).
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Agreement to Subordinate. The Issuer, for itself, its
successors and assigns, covenants and agrees, and each Holder, by his or her
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest on each and all of the Notes
(including any payment in connection with the repurchase, redemption or other
acquisition thereof) is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full,
in cash or Cash Equivalents of all Senior Indebtedness. This Article Eleven
constitutes a continuing offer to all persons or entities who become holders of,
or continue to hold, Senior Indebtedness, each of whom is an obligee hereunder
and is entitled to enforce such holder's rights hereunder, subject to the
provisions hereof, without any act or notice of acceptance hereof or reliance
hereon. All provisions of this Article Eleven shall be subject to Section 11.12.
For the purposes of this Article Eleven, (a) no Senior Indebtedness shall
be deemed to have been paid in full unless and until all commitments or other
obligations of the holders of the Senior Indebtedness to make advances or
otherwise extend credit shall have terminated and the holders thereof shall have
indefeasibly received payment in full in cash or Cash Equivalents, and
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(b) the term "Senior Representative" shall mean the indenture trustee or other
trustee, agent or representative for any Senior Indebtedness.
SECTION 11.02. Distribution on Dissolution, Liquidation, Bankruptcy or
Reorganization. Upon any distribution of assets of the Issuer upon any total or
partial dissolution, winding up, liquidation or reorganization of the Issuer,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Issuer or otherwise,
(a) The holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents or, as acceptable to each
holder of Senior Indebtedness, in any other manner, of all amounts and
obligations due on or in respect of all Senior Indebtedness before the
Holders are entitled to receive any payment or distribution of any kind or
character (excluding securities of the Issuer provided for in a plan of
reorganization with respect to the Issuer approved by the bankruptcy court
that are equity securities or are subordinated in right of payment to all
Senior Indebtedness to the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Article; such securities
are hereinafter collectively referred to as "Permitted Junior Notes") on
account of principal of, premium, if any, or interest on the Notes
(including any payment or other distribution which may be received from
the holders of Subordinated Indebtedness as a result of any payment on
such Subordinated Indebtedness); and
(b) any payment or distribution of assets of the Issuer or any
Subsidiary of the Issuer of any kind or character, whether in cash,
property or securities (excluding Permitted Junior Notes), by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article (including any payment or other
distribution which may be received from the holders of Subordinated
Indebtedness as a result of any payment on such Subordinated Indebtedness)
shall be paid by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their Senior Representative or Representatives, ratably
according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full in cash, Cash Equivalents or in any other form
acceptable to each, of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or any Holder shall have received any payment or
distribution of assets of the Issuer or any Subsidiary of the Issuer of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Notes), in respect of principal,
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premium, if any, and interest on the Notes before all Senior Indebtedness
is paid in full in cash, then and in such event, such payment or
distribution (including any payment or other distribution which may be
received from the holders of Subordinated Indebtedness as a result of any
payment on such Subordinated Indebtedness) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution
of assets of the Issuer for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash, Cash Equivalents or, as acceptable to each
holder of Senior Indebtedness, any other manner, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness or deposited with a court of competent jurisdiction.
The consolidation of the Issuer with, or the merger of the Issuer into,
another corporation or the liquidation or dissolution of the Issuer following
the sale or conveyance of its property or assets as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution, winding
up, liquidation or reorganization of the Issuer for the purposes of this Article
Eleven if such other corporation shall, as a part of such consolidation, merger,
sale or conveyance, comply with the conditions stated in Article Five.
If the Trustee or any Holder does not file a proper claim or proof of debt
in the form required in any proceeding referred to above prior to 30 days before
the expiration of the time to file such claim in such proceeding, then the
holder of any Senior Indebtedness (or its Senior Representative) is hereby
authorized, and has the right, to file an appropriate claim or claims for or on
behalf of such Holder.
SECTION 11.03. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 11.02 shall be applicable, upon the occurrence of a Payment
Default, then no payment or distribution of any assets of the Issuer or any
Subsidiary of the Issuer of any kind or character (excluding Permitted Junior
Notes) shall be made by the Issuer or any Subsidiary of the Issuer or on behalf
of or out of the property of the Issuer, or received by the Trustee or any
Noteholder on account of principal of, premium, if any, or interest on, the
Notes or on account of the purchase, redemption, defeasance (whether under
Section 8.02 or 8.03) or other acquisition of or in respect of the Notes unless
and until such Payment Default shall have been cured or waived in writing by the
holders of the Designated Senior Indebtedness or shall have ceased to exist or
the Designated Senior Indebtedness shall have been paid in full in cash, Cash
Equivalents or in any other manner as acceptable to each holder of such
Designated Senior Indebtedness, after which the Issuer shall resume making any
and all required payments in respect of the Notes, including any missed
payments.
(b) Unless Section 11.02 shall be applicable, upon (i) the occurrence of a
Non-payment Default pursuant to which the maturity of the applicable Designated
Senior
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Indebtedness may be accelerated, either immediately or upon the giving of
notice, the passage of time or both, and (ii) receipt by the Trustee and the
Issuer from a Senior Representative or the holder of any Designated Senior
Indebtedness of written notice of such occurrence, no payment (other than any
payments made pursuant to Section 8.02 or 8.03 or from the money or proceeds of
U.S. Government Securities held under the Escrow Agreement as provided in
Section 10.01) or distribution of any assets of the Issuer or any Subsidiary of
the Issuer of any kind or character (excluding Permitted Junior Notes) shall be
made by the Issuer or any Subsidiary of the Issuer or on behalf of or out of the
property of the Issuer or any Subsidiary of the Issuer, or received by the
Trustee or any Holder on account of any principal of, premium, if any, or
interest on, the Notes (including payments under any guaranty thereof) or on
account of the purchase, redemption or other acquisition of or in respect of
Notes (including payments under any guaranty thereof) for a period ("Payment
Blockage Period") commencing on the date of receipt by the Trustee of such
notice until the earliest of (x) 179 days after receipt of such written notice
by the Trustee (provided any Designated Senior Indebtedness as to which notice
was given shall theretofore have not been accelerated), (y) the date such
Non-payment Default and all other Non-payment Defaults as to which notice is
also given after such period is initiated shall have been cured or waived in
writing by the holders of the Designated Senior Indebtedness or shall have
ceased to exist or the Senior Indebtedness related thereto shall have been paid
in full in cash or Cash Equivalents or (z) the date such Payment Blockage Period
and any Payment Blockage Periods initiated during such period shall have been
terminated by written notice to the Issuer or the Trustee from the Senior
Representative and the holders of the Designated Senior Indebtedness that have
given notice of a Non-payment Default at or after the initiation of such Payment
Blockage Period, after which in the case of clause (x), (y) or (z), the Issuer
shall resume making any and all required payments in respect of the Notes
including any missed payments. Notwithstanding any other provision of this
Indenture, in no event shall a Payment Blockage Period extend beyond 179 days
from the date of the receipt by the Issuer or the Trustee of the notice referred
to in clause (ii) of this paragraph (b) (the "Initial Blockage Period"). Not
more than one Payment Blockage Period may be commenced with respect to the Notes
during any period of 360 consecutive days; provided that, subject to the
limitations set forth in the next sentence, the commencement of a Payment
Blockage Period by the representative of Designated Senior Indebtedness other
than the Credit Facility shall not bar the commencement of another Payment
Blockage Period by the representative for the Credit Facility within such period
of 360 consecutive days. Notwithstanding anything in this Indenture to the
contrary, there must be 180 days in any 360-day period in which no Payment
Blockage Period is in effect. No event of default (other than an event of
default pursuant to the financial maintenance covenants under the Credit
Facility) that existed or was continuing (it being acknowledged that any
subsequent action that would give rise to an event of default pursuant to any
provision under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose) on the date of
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period shall be, or shall
be made, the basis for the commencement of a second Payment Blockage Period by
the representative for, or the holders of, such Designated Senior
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Indebtedness, whether or not within a period of 360 consecutive days, unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Issuer or any
Subsidiary of the Issuer shall make, or the Trustee or any Holder shall receive,
any payment to the Trustee or any Holder prohibited by the foregoing provisions
of this Section, then and in such event such payment shall be paid over and
delivered forthwith to a Senior Representative of the holders of the Designated
Senior Indebtedness.
SECTION 11.04. Payment Permitted if No Default. Nothing contained in this
Article, elsewhere in this Indenture or in any of the Notes shall prevent the
Issuer, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Issuer referred
to in Section 11.02 or under the conditions described in Section 11.03, from
making payments at any time of principal of, premium, if any, or interest on the
Notes.
SECTION 11.05. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest on the
Notes shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders or the Trustee,
shall, as among the Issuer, its creditors other than holders of Senior
Indebtedness, and the Holders, be deemed to be a payment or distribution by the
Issuer to or on account of the Senior Indebtedness.
SECTION 11.06. Provisions Solely to Define Relative Rights. The provisions
of this Article are intended solely for the purpose of defining the relative
rights of the Holders on the one hand and the holders of Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Notes is intended to or shall (i) impair, as among the Issuer, its
creditors other than holders of Senior Indebtedness and the Holders, the
obligation of the Issuer, which is absolute and unconditional, to pay to the
Holders the principal of, premium, if any, and interest on the Notes as and when
the same shall become due and payable in accordance with their terms; or (ii)
affect the relative rights against the Issuer of the Holders and creditors of
the Issuer other than their rights in relation to the holders of Senior
Indebtedness; or (iii) prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, under this Article of the holders of Senior
Indebtedness to receive distributions and payments otherwise payable to Holders
(A) in any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Issuer
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referred to in Section 11.02, to receive, pursuant to and in accordance with
such Section, cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder, or (B) under the conditions specified in Section
11.03, to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 11.03(c).
SECTION 11.07. Trustee to Effectuate Subordination. Each Holder by his or
her acceptance thereof authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of the Issuer whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the indebtedness of Issuer owing to
such Holder in the form required in such proceedings and the causing of such
claim to be approved. If the Trustee does not file a proper claim at least 30
days before the expiration of the time to file such claim, then the holders of
Senior Indebtedness, and their agents, trustees or other representatives are
authorized to do so for and on behalf of the Holders.
SECTION 11.08. No Waiver of Subordination Provisions. (a) No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or any Holder or by any act or
failure to act, in good faith, by any such holder, or by any non-compliance by
the Issuer or any Holder with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, or waive compliance with the terms of, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
or payment of Senior Indebtedness; (iv) exercise or refrain from exercising any
rights against the Issuer and any other Person; (v) amend, supplement, restate
or otherwise modify or restructure the Senior Indebtedness; and (vi) otherwise
deal with any Person liable on account of Senior Indebtedness; provided,
however, that in no event shall any such actions limit the right of the Holders
to take any action to accelerate the maturity of the Notes pursuant to Article
Six of this Indenture or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Article, subject to the rights, if any, under this
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Article, of the holders, from time to time, of Senior Indebtedness to receive
the cash, property or securities receivable upon the exercise of such rights or
remedies.
SECTION 11.09. Notice to Trustee. (a) The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer which would prohibit the
making of any payment to or by the Trustee in respect of the Notes.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee or any Paying Agent shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee or any Paying Agent in respect of the Notes, unless and until
the Trustee shall have received written notice thereof from the Issuer or a
holder of Senior Indebtedness or from a Senior Representative or any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such written
notice, the Trustee shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Note), then, anything herein contained to the contrary
notwithstanding but without limiting the rights and remedies of the holders of
Senior Indebtedness or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within three Business
Days prior to such date; nor shall the Trustee be charged with knowledge of the
elimination of the act or condition preventing any such payment unless and until
the Trustee shall have received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and the Issuer by a Person representing himself to
be a Senior Representative or a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
Senior Representative or a holder of Senior Indebtedness (or a trustee,
fiduciary or agent thereof and the Trustee shall have no duty to investigate the
authenticity thereof or the authority of the person signing and shall have no
liability for relying thereon); provided, however, that failure to give such
notice to the Issuer shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment or the Trustee or the Paying
Agent may deposit the funds in question with a court of competent jurisdiction.
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SECTION 11.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Issuer referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article,
provided that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article.
SECTION 11.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder of Senior Indebtedness.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.07.
SECTION 11.12. Trust Moneys and Escrowed Funds Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from (x)
money or the proceeds of U.S. Government Obligations held in trust under Article
Eight by the Trustee for the payment of principal of, premium, if any, and
interest on the Notes (provided that at the time deposited, such deposit did not
violate any then outstanding Senior Indebtedness) and (y) money or the proceeds
of U.S. Government Securities held under the Escrow Agreement shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article Eleven, and none of the Holders shall be
obligated to pay over any such amount to any holder of Senior Indebtedness.
SECTION 11.13. No Suspension of Remedies. Nothing contained in this
Article shall limit the right of the Trustee or the Holders to take any action
to accelerate the maturity of the Notes pursuant to Article Six of this
Indenture or to pursue any rights or remedies hereunder or under applicable law,
subject to the rights, if any, under this Article of the holders, from time to
time, of Senior Indebtedness to receive the cash, property or securities
receivable upon the exercise of such rights or remedies.
SECTION 11.14. Trustee's Relation to Senior Indebtedness. With respect to
the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article, and no implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this Article
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against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness.
SECTION 11.15. Other Rights of Holders of Senior Indebtedness. All rights
and interests under this Indenture of the holders of Senior Indebtedness, and
all agreements and obligations of the Trustee, the Holders and the Issuer under
this Article shall remain in full force and effect irrespective of (i) any lack
of validity or enforceability of the Credit Facility, and promissory notes
evidencing the Credit Facility or any other agreement or instrument relating
thereto or to any other Senior Indebtedness or (ii) any other circumstance that
might constitute a defense available to, or a discharge of, a guarantor or
surety (other than as a result of any payments indefeasibly made on the Credit
Facility or any other Senior Indebtedness).
The holders of Senior Indebtedness are hereby authorized to demand
specific performance of this Article, whether or not the Issuer shall have
complied with any provisions of this Article applicable to it, at any time when
the Trustee or any Holder shall have failed to comply with any of these
provisions.
The provisions of this Article shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Senior
Indebtedness is rescinded or must otherwise be returned by any holder of Senior
Indebtedness upon the insolvency, bankruptcy or reorganization of the Issuer or
otherwise, all as though such payment had not been made.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939. Prior to the effectiveness of
the Registration Statement, this Indenture shall incorporate and be governed by
the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the Registration
Statement, this Indenture shall be subject to the provisions of the TIA that are
required to be a part of this Indenture and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA 318(c), the imposed duties
shall control.
SECTION 12.02. Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in person, mailed by first-class mail or sent
by telecopier transmission addressed as follows:
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if to the Issuer:
Genesis ElderCare Acquisition Corp.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
if to the Trustee:
PNC Bank, National Association
Corporate Trust Department
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx
if to the Paying Agent:
Banque Internationale a Luxembourg S.A.
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Telecopier No.: (000) 0000-0000
Attention: Xxxxxxx Xxxxxx
The Issuer, the Trustee or the Paying Agent by notice to the other 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 answered back, if telexed; 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. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee and
each Paying Agent at the same time.
Any notice or communication (i) mailed to a Holder shall be mailed to it
at its address as it appears on the Security Register by first-class mail and
shall be sufficiently given to him if so mailed within the time prescribed and
(ii) for so long as the Notes are listed on the Luxembourg Stock Exchange, shall
be published in a leading newspaper of general circulation in Luxembourg, not
later than the latest date, and not earlier than the earliest date, prescribed
85
in the Notes for the giving of such notice or communication. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and each
Agent at the same time.
Failure to transmit a notice or communication to a Holder as provided
herein or any defect in any such notice shall not affect its sufficiency with
respect to other Holders. Except for a notice to the Trustee, which is deemed
given only when received, and except as otherwise provided in this Indenture, if
a notice or communication is mailed in the manner provided in this Section
12.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 12.03. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Issuer to the Trustee to take any action under
this Indenture, the Issuer shall furnish to the Trustee:
(i) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such Counsel,
all such conditions precedent have been complied with.
SECTION 12.04. 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 comply with the provisions of TIA Section 314(e)
and shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
86
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 12.06. Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date, Stated Maturity or date of maturity
of any Note shall not be a Business Day, then payment of principal of, premium,
if any, or interest on such Note, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Payment Date or Redemption
Date, or at the Stated Maturity or date of maturity of such Note; provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Payment Date, Redemption Date, Stated Maturity or date of maturity, as the
case may be.
SECTION 12.07. Governing Law. The laws of the State of New York shall
govern this Indenture and the Notes. The Trustee, the Issuer and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Indenture or the
Notes.
SECTION 12.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Issuer or any Subsidiary of the Issuer. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.09. No Recourse Against Others. No recourse for the payment of
the principal of, premium, if any, or interest on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Issuer contained in this
Indenture, or in any of the Notes, or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator or
against any past, present or future partner, shareholder, other equityholder,
officer, director,
87
employee or controlling person, as such, of the Issuer or of any successor
Person, either directly or through the Issuer or any successor Person, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the issue of the Notes.
SECTION 12.10. Successors. All agreements of the Issuer in this Indenture
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.11. Duplicate 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 12.12. Separability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 12.13. 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 hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
GENESIS ELDERCARE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
Attest: /s/ Xxx X. Xxxxxxxxx
---------------------------
Name: Xxx X. Xxxxxxxxx
Title: Secretary
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
BANQUE INTERNATIONALE A LUXEMBOURG
S.A.
By:
------------------------------------
Name:
Title:
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
GENESIS ELDERCARE ACQUISITION CORP.
By:
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
BANQUE INTERNATIONALE A LUXEMBOURG
S.A.
By:
------------------------------------
Name:
Title:
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
GENESIS ELDERCARE ACQUISITION CORP.
By:
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
BANQUE INTERNATIONALE A LUXEMBOURG
S.A.
By: /s/ X. XXXXXX /s/ Xxxxxx Schammo
------------------------------------
Name: J. XXXXXX Xxxxxx Schammo
Title: Premier Consellier
EXHIBIT A
[FACE OF NOTE]
GENESIS ELDERCARE ACQUISITION CORP.
9% Senior Subordinated Note due 2007
[CUSIP] [CINS] [__________]
No. $_________
GENESIS ELDERCARE ACQUISITION CORP., a Delaware corporation (the "Issuer",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to _____________, or its registered assigns,
the principal sum of ____________ ($____) on August 1, 2007.
Interest Payment Dates: February 1 and August 1, commencing February 1,
1998.
Regular Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Date: August 11, 1997 GENESIS ELDERCARE ACQUISITION
CORP.
By:
------------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 9% Senior Subordinated Notes due 2007 described in the
within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION
as Trustee
By:
------------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
GENESIS ELDERCARE ACQUISITION CORP.
9% Senior Subordinated Note due 2007
1. Principal and Interest.
The Issuer will pay the principal of this Note on August 1, 2007.
The Issuer promises to pay interest on the principal amount of this Note
on each Interest Payment Date, as set forth below, at the rate per annum shown
above.
Interest will be payable semiannually (to the holders of record of the
Notes at the close of business on the January 15 or July 15 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
February 1, 1998.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Notes is not declared effective by the Commission, on or prior to the earlier of
(x) the date that is six months after the Merger Closing Date and (y) March 31,
1998, in accordance with the terms of the Registration Rights Agreement dated as
of August 11, 1997 between the Issuer and Xxxxxx Xxxxxxx & Co. Incorporated,
First Union Capital Markets Corp. and Xxxxxxxxxx Securities, the per annum
interest rate borne by the Notes shall be increased by 0.5% from the rate shown
above accruing from the earlier of (x) the date that is six months after the
Merger Closing Date and (y) March 31, 1998, payable in cash semiannually, in
arrears, on each Interest Payment Date, commencing August 1, 1998 until the
Exchange Offer is consummated or the Shelf Registration Statement is declared
effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 11, 1997;
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at a
rate per annum that is 2% in excess of the rate otherwise payable.
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2. Method of Payment.
The Issuer will pay interest (except defaulted interest) on the principal
amount of the Notes as provided above on each February 1 and August 1 commencing
February 1, 1998 to the persons who are Holders (as reflected in the Security
Register at the close of business on the January 15 or July 15 immediately
preceding the Interest Payment Date), in each case, even if the Note is
cancelled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the Issuer
will make payment to the Holder that surrenders this Note to a Paying Agent on
or after August 1, 2007.
The Issuer will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Issuer may pay
principal, premium, if any, and interest by its check payable in such money. It
may mail an interest check to a Holder's registered address (as reflected in the
Security Register). If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying Agent and
Registrar. The Issuer may change any authenticating agent, Paying Agent or
Registrar without notice. The Issuer, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Issuer issued the Notes under an Indenture dated as of August 11, 1997
(the "Indenture"), between the Issuer, PNC Bank, National Association, trustee
(the "Trustee") and Banque Internationale a Luxembourg S.A., a paying agent.
Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of this Note and the terms of the Indenture, the terms of the Indenture shall
control.
The Notes are general obligations of the Issuer.
A-6
5. Optional Redemption.
The Notes will be redeemable, at the Issuer's option, in whole or in part,
at any time or from time to time, on or after August 1, 2002 and prior to
maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first-class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing August 1 of the
years set forth below:
Redemption
Year Price
---- ----------
2002.................... 104.500%
2003.................... 102.250
2004 and thereafter..... 100.000
Notes in original denominations larger than $1,000 may be redeemed in
part. On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Issuer defaults in the
payment of the Redemption Price.
6. Special Redemption.
In the event that the Tender Offer is not consummated and certain other
conditions set forth in the Escrow Agreement are not satisfied by the Expiration
Date, or if it appears, in the sole judgment of the Issuer, that the Tender
Offer will not be consummated and such conditions will not be satisfied by the
Expiration Date, the Issuer shall redeem the Notes in whole, on 10 days' prior
notice mailed by first-class mail to each Holder's last address as it appears in
the Security Register, at a Redemption Price equal to 101% of the principal
amount of the Notes, plus accrued and unpaid interest to the Redemption Date. On
the earlier of (i) the Expiration Date, if the Trustee has not received the
Escrow Agreement Officers' Certificate that the Tender Offer has been
consummated (or will be consummated promptly upon the release of the escrowed
proceeds of the offering of the Notes to the Issuer) and certain conditions have
been satisfied and the Escrow Agreement Opinion of Counsel, and (ii) such date
on which the Trustee receives an officer's certificate under the Escrow
Agreement that the Tender Offer will not be consummated and such conditions will
not be satisfied by the Expiration Date, the Trustee will mail by first-class
mail to each Holder's last address as it appears in the Security Register a
written notice that the Notes will be redeemed within 10 days of such notice.
X-0
0. Xxxxxxxxxx upon Change of Control.
Upon the occurrence of any Change of Control, each Holder shall have the
right to require the repurchase of its Notes by the Issuer in cash pursuant to
the offer described in the Indenture at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (the "Payment Date").
A notice of such Change of Control will be mailed within 30 days after any
Change of Control occurs to each Holder at its last address as it appears in the
Security Register. Notes in original denominations larger than $1,000 may be
sold to the Issuer in part. On and after the Payment Date, interest ceases to
accrue on Notes or portions of Notes surrendered for purchase by the Issuer,
unless the Issuer defaults in the payment of the purchase price.
8. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before the day of
mailing of a notice of redemption of Notes selected for redemption.
9. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all purposes.
10. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Issuer at its request. After that, Holders entitled to the
money must look to the Issuer for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity.
If the Issuer deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to redemption or maturity, the Issuer
will be discharged from the Indenture and the Notes,
A-8
except in certain circumstances for certain sections thereof, and (b) to the
Stated Maturity, the Issuer will be discharged from certain covenants set forth
in the Indenture.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
13. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Issuer and
its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates or merge, consolidate or transfer
substantially all of its assets. Within 45 days after the end of each fiscal
quarter (90 days after the end of the last fiscal quarter of each year), the
Issuer must report to the Trustee on compliance with such limitations.
14. Subordination.
The payment of the Notes will, to the extent set forth in the Indenture,
be subordinated in right of payment to the prior payment in full, in cash or
Cash Equivalents, of all Senior Indebtedness.
15. Successor Persons.
When a successor person or other entity assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor person will be
released from those obligations.
16. Defaults and Remedies.
The following events constitute "Events of Default" under the Indenture:
(a) default in the payment of principal of (or premium, if any, on) any Note
when the same becomes due and payable at maturity, upon acceleration, redemption
or otherwise, whether or not such payment is prohibited by the subordination
provisions set forth in Article Eleven; (b) default in the payment of interest
on any Note when the same becomes due and payable, and such default
A-9
continues for a period of 30 days, whether or not such payment is prohibited by
the subordination provisions set forth in Article Eleven; (c) default in the
performance or breach of Article Five or Section 3.01(b) of the Indenture or the
failure to make or consummate an Offer to Purchase in accordance with Section
4.10 or 4.11 of the Indenture; (d) default in the performance of or breach of
any covenant or agreement of the Issuer in the Indenture or under the Notes
(other than a default specified in clause (a), (b) or (c) above), and such
default or breach continues for a period of 30 consecutive days after written
notice by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding; (e) there occurs with respect to any issue
or issues of Indebtedness of the Issuer or any Significant Subsidiary having an
outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder thereof
to declare such Indebtedness to be due and payable prior to its Stated Maturity
and such Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration and/or (II)
the failure to make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or extended
within 30 days of such payment default; (f) any final judgment or order (not
covered by insurance) for the payment of money in excess of $10 million in the
aggregate for all such final judgments or orders against all such Persons
(treating any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Issuer or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate amount
for all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $10 million during which a stay of
enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of the Issuer or any
Significant Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or any Significant Subsidiary or for all or substantially
all of the property and assets of the Issuer or any Significant Subsidiary or
(C) the winding up or liquidation of the affairs of the Issuer or any
Significant Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days; (h) the Issuer or
any Significant Subsidiary (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (B) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Issuer or any Significant Subsidiary or for all or substantially all of the
property and assets of the Issuer or any Significant Subsidiary or (C) effects
any general assignment for the benefit of creditors; or (i) the Guaranty
Documents are not executed and delivered within three Business Days after the
consummation of the Tender Offer (unless prior to or at the end of such three
Business Days the Merger shall have been consummated).
A-10
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding shall, declare all
the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Issuer occurs and is continuing, the Notes automatically become
due and payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then outstanding
may direct the Trustee in its exercise of any trust or power.
17. Trustee Dealings with Issuer.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from and perform services for the Issuer or
its Affiliates and may otherwise deal with the Issuer or its Affiliates as if it
were not the Trustee.
18. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder, other
equity holder, officer, director, employee or controlling person as such, of the
Issuer or of any successor Person shall have any liability for any obligations
of the Issuer under the Escrow Agreement, the Notes or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
20. 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).
The Issuer will furnish a copy of the Indenture to any Holder upon written
request and without charge. Requests may be made to Genesis ElderCare
Acquisition Corp., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000;
Attention: Xxxxxx X. Xxxxx, Xx.
A-11
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________________ attorney to transfer said Note on
the books of the Issuer with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
PERMANENT OFFSHORE GLOBAL NOTES AND
PERMANENT OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions
of transfer set forth in this Note and the Indenture.
A-12
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:___________________ __________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act 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 Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:____________________ _______________________________________________
NOTICE: To be executed by an executive officer
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to Section
4.10 or 4.11 of the Indenture, check the Box: |_|
If you wish to have a portion of this Note purchased by the Issuer
pursuant to Section 4.10 or 4.11 of the Indenture, state the amount:
$___________________.
Date: _________________
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ______________________________
EXHIBIT B
Form of Certificate
________________, __
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Re: Genesis ElderCare Acquisition Corp. (the "Issuer")
9% Senior Subordinated Notes due 2007 (the "Notes")
Dear Sirs:
This letter relates to U.S. $______ principal amount of Notes represented
by a Note (the "Legended Note") which bears a legend outlining restrictions upon
transfer of such Legended Note. Pursuant to Section 2.01 of the Indenture dated
as of August 11, 1997 (the "Indenture") relating to the Notes, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Notes could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Notes, all in the
manner provided for in the Indenture.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
---------------------------------
Authorized Signature
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
________________, __
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Re: Genesis ElderCare Acquisition Corp. (the "Issuer")
9% Senior Subordinated Notes due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of $____________ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture dated as of
August 11, 1997 (the "Indenture"), relating to the Notes, and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with, such restrictions and conditions and the Securities
Act of 1933 (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes, we will do so only (A) to the Issuer or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Issuer a signed letter substantially in the form of this letter, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Issuer such certifications, legal opinions
and other information as you and
C-2
the Issuer may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes purchased by us for our own account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Authorized Signature
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
________________, __
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Re: Genesis ElderCare Acquisition Corp. (the "Issuer")
9% Senior Subordinated Notes due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$ aggregate principal amount
of the Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933 and, accordingly,
we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------
Authorized Signature
EXHIBIT E
FORM OF FIRST SUPPLEMENTAL INDENTURE
THE FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of __________, 1997, among The Multicare Companies, Inc., a Delaware
corporation ("Multicare"), Genesis ElderCare Acquisition Corp., a Delaware
corporation (the "Issuer"), PNC Bank, National Association, as trustee under the
indenture referred to below (the "Trustee") and Banque Internationale a
Luxembourg S.A. (a "Paying Agent").
R E C I T A L S
WHEREAS, the Issuer heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of August 11, 1997, providing for the
issuance of an aggregate principal amount of $250,000,000 of 9% Senior
Subordinated Notes due 2007 (the "Notes");
WHEREAS, the Tender Offer is required to be consummated by the
Expiration Date and the Merger is required to be consummated within four months
after consummation of the Tender Offer;
WHEREAS, Multicare desires to guarantee, on a senior subordinated
basis, the obligations of the Issuer under the Indenture and the Notes and to
comply with the requirements of the Indenture with respect to the execution of a
supplemental indenture in connection with its senior subordinated guaranty; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer and
the Trustee are 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
Issuer, Multicare and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the Notes as follows:
2
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined herein, terms
defined in the Indenture are used herein as defined therein. In addition, as
used herein:
"Guaranteed Obligations" has the meaning provided in Section 2.01.
"Guarantor Senior Indebtedness" means the following obligations
whether outstanding on the Closing Date or thereafter Incurred: (a) all
Indebtedness and other monetary obligations of Multicare or any Subsidiary
of Multicare under or in respect of the Credit Facility (including
obligations in respect of any lease financing facility of the Credit
Facility) or any Interest Rate Contract or Currency Agreement related to
Indebtedness under the Credit Facility, whether for principal, interest
(including interest accruing after the filing of a petition by or against
Multicare or any Subsidiary of Multicare under any state or federal
Bankruptcy Laws, whether or not such interest is allowed as a claim after
such filing in any proceeding under such law), fees, expenses,
indemnification or otherwise, and (b) the principal of, premium, if any,
and interest on all other Indebtedness of Multicare (other than the
Multicare Senior Subordinated Guaranty) unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall be pari passu with or subordinated in right of payment
to the Multicare Senior Subordinated Guaranty. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (i) Indebtedness that
is by its terms subordinate in right of payment to any Indebtedness of
Multicare, (ii) Indebtedness which when incurred and without respect to
any election under Section 1111(b) of the Bankruptcy Law is without
recourse to Multicare, (iii) any repurchase, redemption or other
obligation in respect of Redeemable Capital Stock, (iv) Indebtedness for
goods, materials or services purchased in the ordinary course of business
or indebtedness consisting of trade payables or other current liabilities,
(v) Indebtedness of or amounts owed by Multicare to employees, officers,
or directors, (vi) any liability for federal, state, local or other taxes
owed or owing by Multicare, (vii) Indebtedness of Multicare to a
Subsidiary of Multicare or any other Affiliate of Multicare or any of such
Affiliate's subsidiaries, (viii) that portion of any Indebtedness which at
the time of issuance is issued in violation of the Indenture and (ix)
amounts owing under leases (other than Capital Lease Obligations).
"Guarantor Designated Senior Indebtedness" means (i) all Guarantor
Senior Indebtedness under, or in respect of, the Credit Facility and any
Interest Rate Contract or Currency Agreement related to Indebtedness under
the Credit Facility and (ii) any other Guarantor Senior Indebtedness
which, at the time of determination, has an aggregate principal amount
outstanding, together with any commitments to lend additional amounts, of
at least $30,000,000 and is specifically designated in the
3
instrument evidencing such Senior Indebtedness as "Guarantor Designated
Senior Indebtedness."
"Guarantor Subordinated Indebtedness" means any Indebtedness of
Multicare subordinated in right of payment to the Multicare Senior
Subordinated Guaranty.
"Multicare Restricted Subsidiary" means any Subsidiary of Multicare
other than a Multicare Unrestricted Subsidiary.
"Multicare Unrestricted Subsidiary" means (i) any Subsidiary of
Multicare that at the time of determination shall be designated a
Multicare Unrestricted Subsidiary by the Board of Directors in the manner
provided below; and (ii) any Subsidiary of a Multicare Unrestricted
Subsidiary. The Board of Directors may designate any Multicare Restricted
Subsidiary (including any newly acquired or newly formed Subsidiary of
Multicare) to be a Multicare Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any
property of, Multicare or any Multicare Restricted Subsidiary; provided
that (A) any guarantee by Multicare or any Multicare Restricted Subsidiary
of any Indebtedness of the Subsidiary being so designated shall be deemed
an "Incurrence" of such Indebtedness and an "Investment" by Multicare or
such Multicare Restricted Subsidiary (or both, if applicable) at the time
of such designation; (B) either (I) the Subsidiary to be so designated has
total assets of $1,000 or less or (II) if such Subsidiary has assets
greater than $1,000, such designation would be permitted under Section
4.04 of the Indenture and (C) if applicable, the Incurrence of
Indebtedness and the Investment referred to in clause (A) of this proviso
would be permitted under Sections 4.03 and 4.04 of the Indenture. The
Board of Directors may designate any Multicare Unrestricted Subsidiary to
be a Multicare Restricted Subsidiary; provided that (i) no Default or
Event of Default shall have occurred and be continuing at the time of or
after giving effect to such designation and (ii) all Liens and
Indebtedness of such Multicare Unrestricted Subsidiary outstanding
immediately after such designation would, if Incurred at such time, have
been permitted to be Incurred (and shall be deemed to have been Incurred)
for all purposes of the Indenture. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolution giving effect to such designation
and an Officers' Certificate certifying that such designation complied
with the foregoing provisions.
"Multicare Senior Subordinated Guaranty" means the unconditional
guaranty by Multicare of the Guaranteed Obligations on the terms and
conditions provided herein.
"Placement Agreement" means the placement agreement between the
Issuer and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxxx Securities and
First Union Capital Markets Corp. dated August 4, 1997.
4
ARTICLE TWO
MULTICARE SENIOR SUBORDINATED GUARANTY
SECTION 2.01. Multicare Senior Subordinated Guaranty. Subject to the
provisions of this Article Two, Multicare, as primary obligor and not merely as
surety, hereby fully, unconditionally and irrevocably guarantees, from the
consummation of the Tender Offer to and until the consummation of the Merger, to
each Holder and to the Trustee on behalf of the Holders: (i) the due and
punctual payment of the principal of, premium, if any, on and interest on each
Note, when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of and interest, if any, on the Notes, to the extent lawful,
and the due and punctual performance of all other obligations of the Issuer to
the Holders or the Trustee (the "Guaranteed Obligations"), all in accordance
with the terms of such Note and the Indenture and (ii) in the case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, at Stated Maturity, by
acceleration or otherwise. Multicare hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Issuer any right to require a proceeding first against the
Issuer the benefit of discussion, protest or notice with respect to any such
Note or the debt evidenced thereby and all demands whatsoever, and covenants
that this Multicare Senior Subordinated Guaranty will not be discharged as to
any such Note except upon the earlier of (x) the payment in full of the
principal thereof, premium, if any, and interest thereon and (y) the
consummation of the Merger. The maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Six of the Indenture for the purposes
of this Article Two. In the event of any declaration of acceleration of such
obligations as provided in Article Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
Multicare for the purpose of this Article Two. In addition, without limiting the
foregoing provisions, upon the effectiveness of any acceleration under Article
Six of the Indenture, the Trustee shall promptly make a demand for payment on
the Notes under the Multicare Senior Subordinated Guaranty provided for in this
Article Two.
If the Trustee or the Holder of any Note is required by any court or
otherwise to return to the Issuer or Multicare, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to the Issuer or Multicare, any amount paid to the Trustee or such Holder in
respect of a Note, this Multicare Senior Subordinated Guaranty, to the extent
theretofore discharged, shall be reinstated in full force and effect. Multicare
further agrees, to the fullest extent that it may lawfully do so, that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Two hereof for the purposes of this Multicare Senior Subordinated
Guaranty, notwithstanding any stay, injunction or other prohibition extant under
any applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
5
Until such time as the Notes are fully and finally paid, including
all interest, premium, principal and liquidated damages with respect thereto,
Multicare hereby irrevocably waives any claim or other rights which it may now
or hereafter acquire against the Issuer that arise from the existence, payment,
performance or enforcement of its obligations under this Multicare Senior
Subordinated Guaranty and the Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
any right to participate in any claim or remedy of the Holders against the
Issuer or any collateral which any such Holder or the Trustee on behalf of such
Holder hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Issuer, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to Multicare
in violation of the preceding sentence and the principal of, premium, if any,
and accrued interest on the Notes shall not have been paid in full, such amount
shall be deemed to have been paid to Multicare for the benefit of, and held in
trust for the benefit of, the Holders, and shall forthwith be paid to the
Trustee for the benefit of the Holders to be credited and applied upon the
principal of, premium, if any, and accrued interest on the Notes. Multicare
acknowledges that it will receive direct and indirect benefits from the issuance
of the Notes pursuant to this Indenture and that the waivers set forth in this
Section 2.01 are knowingly made in contemplation of such benefits.
The Multicare Senior Subordinated Guaranty set forth in this Section
2.01 shall not be valid or become obligatory for any purpose with respect to a
Note until the certificate of authentication on such Note shall have been signed
by or on behalf of the Trustee.
SECTION 2.02. Obligations Unconditional. Subject to Section 2.05,
nothing contained in this Article Two or in the Indenture or in the Notes is
intended to or shall impair, as between Multicare and the Holders, the
obligation of Multicare, which is absolute and unconditional, upon failure by
the Issuer, to pay to the Holders the principal of, premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of Multicare, nor shall anything herein or
therein prevent any Holder or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under the Indenture.
Without limiting the foregoing, nothing contained in this Article
Two will restrict the right of the Trustee or the Holders to take any action to
declare the Multicare Senior Subordinated Guaranty to be due and payable prior
to the Stated Maturity of the Notes pursuant to Section 6.02 of the Indenture or
to pursue any rights or remedies hereunder.
SECTION 2.03. Notice to Trustee. Multicare shall give prompt written
notice to the Trustee of any fact known to Multicare which would prohibit the
making of any payment
6
to or by the Trustee in respect of the Multicare Senior Subordinated Guaranty
pursuant to the provisions of this Article Two.
SECTION 2.04. This Article Not to Prevent Events of Default. The
failure to make a payment on account of principal of, premium, if any, or
interest on the Notes by reason of any provision of this Article will not be
construed as preventing the occurrence of an Event of Default.
SECTION 2.05. Net Worth Limitation. Notwithstanding any other
provision of the Indenture or the Notes, this Multicare Senior Subordinated
Guaranty shall not be enforceable against Multicare in an amount in excess of
the net worth of Multicare at the time that determination of such net worth is,
under applicable law, relevant to the enforceability of this Multicare Senior
Subordinated Guaranty. Such net worth shall include any claim or future claim of
Multicare against the Issuer for reimbursement and any claim against any grantor
of a Guarantee for contribution.
ARTICLE THREE
SUBORDINATION
SECTION 3.01. Agreement to Subordinate. Multicare, for itself, its
successors and assigns, covenants and agrees, and each Holder, by his or her
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest on each and all of the Notes
under this Multicare Senior Subordinated Guaranty (including any payment in
connection with the repurchase, redemption or other acquisition thereof) is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full, in cash or Cash
Equivalents of all Guarantor Senior Indebtedness. This Article Three constitutes
a continuing offer to all persons or entities who become holders of, or continue
to hold, Guarantor Senior Indebtedness, each of whom is an obligee hereunder and
is entitled to enforce such holder's rights hereunder, subject to the provisions
hereof, without any act or notice of acceptance hereof or reliance hereon. All
provisions of this Article Three shall be subject to Section 3.12.
For the purposes of this Article Three, (a) no Guarantor Senior
Indebtedness shall be deemed to have been paid in full unless and until all
commitments or other obligations of the holders of the Senior Indebtedness
thereunder to make advances or otherwise extend credit shall have terminated and
the holders thereof shall have indefeasibly received payment in full in cash or
Cash Equivalents, and (b) the term "Guarantor Senior Representative" shall mean
the indenture trustee or other trustee, agent or representative for any
Guarantor Senior Indebtedness.
7
SECTION 3.02. Distribution on Dissolution, Liquidation, Bankruptcy
or Reorganization. Upon any distribution of assets of Multicare upon any total
or partial dissolution, winding up, liquidation or reorganization of Multicare,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of Multicare or otherwise,
(a) the holders of Guarantor Senior Indebtedness shall be entitled
to receive payment in full in cash or Cash Equivalents or, as acceptable
to each holder of Guarantor Senior Indebtedness, in any other manner, of
all amounts and obligations due on or in respect of all Guarantor Senior
Indebtedness before the Holders are entitled to receive any payment or
distribution of any kind or character (excluding securities of Multicare
provided for in a plan of reorganization with respect to Multicare
approved by the bankruptcy court that are equity securities or are
subordinated in right of payment to all Guarantor Senior Indebtedness to
the same extent as, or to a greater extent than, the Multicare Senior
Subordinated Guaranty is so subordinated as provided in this Article; such
securities are hereinafter collectively referred to as "Multicare
Permitted Junior Notes") on account of principal of, premium, if any, or
interest on the Notes (including any payment or other distribution which
may be received from the holders of Guarantor Subordinated Indebtedness as
a result of any payment on such Guarantor Subordinated Indebtedness);
(b) any payment or distribution of assets of Multicare or any
Subsidiary of Multicare of any kind or character, whether in cash,
property or securities (excluding Multicare Permitted Junior Notes), by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article (including any payment or
other distribution which may be received from the holders of Guarantor
Subordinated Indebtedness as a result of any payment on such Guarantor
Subordinated Indebtedness) shall be paid by the liquidating trustee or
agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Guarantor Senior Indebtedness or their
Guarantor Senior Representative or Representatives, ratably according to
the aggregate amounts remaining unpaid on account of the Guarantor Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash, Cash Equivalents or in any other form acceptable
to each, of all Guarantor Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section 3.02, the Trustee or any Holder shall have received any
payment or distribution of assets of Multicare or any Subsidiary of
Multicare of any kind or character, whether in cash, property or
securities (excluding Multicare Permitted Junior Notes), in respect of
principal, premium, if any, and interest on the Notes before all Guarantor
Senior
8
Indebtedness is paid in full in cash, then and in such event, such payment
or distribution (including any payment or other distribution which may be
received from the holders of Guarantor Subordinated Indebtedness as a
result of any payment on such Guarantor Subordinated Indebtedness) shall
be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of Multicare for application to
the payment of all Guarantor Senior Indebtedness remaining unpaid to the
extent necessary to pay all Guarantor Senior Indebtedness in full in cash,
Cash Equivalents or, as acceptable to each holder of Guarantor Senior
Indebtedness, any other manner, after giving effect to any concurrent
payment or distribution to or for the holders of Guarantor Senior
Indebtedness or deposited with a court of competent jurisdiction.
The consolidation of Multicare with, or the merger of Multicare
into, another corporation or the liquidation or dissolution of Multicare
following the sale or conveyance of its property or assets as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five of the Indenture shall not be deemed a
dissolution, winding up, liquidation or reorganization of Multicare for the
purposes of this Article Three if such other corporation shall, as a part of
such consolidation, merger, sale or conveyance, comply with the conditions
stated in Article Five of the Indenture.
If the Trustee or any Holder does not file a proper claim or proof
of debt in the form required in any proceeding referred to above prior to 30
days before the expiration of the time to file such claim in such proceeding,
then the holder of any Guarantor Senior Indebtedness (or its Guarantor Senior
Representative) is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder.
SECTION 3.03. Suspension of Payment When Guarantor Senior
Indebtedness in Default. (a) Unless Section 3.02 shall be applicable, upon the
occurrence of a Payment Default in respect of Guarantor Designated Senior
Indebtedness, then no payment or distribution of any assets of Multicare or any
Subsidiary of Multicare of any kind or character (excluding Multicare Permitted
Junior Notes) shall be made by Multicare or any Subsidiary of Multicare or on
behalf of or out of the property of Multicare, or received by the Trustee or any
Holder on account of principal of, premium, if any, or interest on, the Notes or
on account of the purchase, redemption, defeasance (whether under Section 8.02
or 8.03 of the Indenture) or other acquisition of or in respect of the Notes
unless and until such Payment Default shall have been cured or waived in writing
by the holders of the Guarantor Designated Senior Indebtedness or shall have
ceased to exist or the Guarantor Designated Senior Indebtedness shall have been
paid in full in cash, Cash Equivalents or in any other manner as acceptable to
each holder of such Guarantor Designated Senior Indebtedness, after which
Multicare shall resume making any and all required payments in respect of the
Notes, including any missed payments.
9
(b) Unless Section 3.02 shall be applicable, upon (i) the occurrence
of a Non-payment Default pursuant to which the maturity of the applicable
Designated Senior Indebtedness may be accelerated in respect of Guarantor
Designated Senior Indebtedness, either iimmediately or upon the giving of
notice, the passage of time, or both, and (ii) receipt by the Trustee and
Multicare from a Guarantor Senior Representative or the holder of any Guarantor
Designated Senior Indebtedness of written notice of such occurrence, no payment
(other than any payments made pursuant to Section 8.02 or 8.03 of the Indenture
or from the money or proceeds of U.S. Government Securities held under the
Escrow Agreement as provided in Section 10.01 of the Indenture) or distribution
of any assets of Multicare or any Subsidiary of Multicare thereof of any kind or
character (excluding Multicare Permitted Junior Notes) shall be made by
Multicare or any Subsidiary of Multicare thereof or on behalf of or out of the
property of Multicare or any Subsidiary of Multicare, or received by the Trustee
or any Holder on account of any principal of, premium, if any, or interest on,
the Notes (including payments under any guaranty thereof) or on account of the
purchase, redemption or other acquisition of or in respect of Notes (including
payments under any guaranty thereof) for a period ("Payment Blockage Period")
commencing on the date of receipt by the Trustee of such notice until the
earliest of (x) 179 days after receipt of such written notice by the Trustee
(provided any Guarantor Designated Senior Indebtedness as to which notice was
given shall theretofore have not been accelerated), (y) the date such
Non-payment Default and all other Non-payment Defaults as to which notice is
also given after such period is initiated shall have been cured or waived in
writing by the holders of the Guarantor Designated Senior Indebtedness or shall
have ceased to exist or the Guarantor Senior Indebtedness related thereto shall
have been paid in full in cash or Cash Equivalents or (z) the date such Payment
Blockage Period and any Payment Blockage Periods initiated during such period
shall have been terminated by written notice to Multicare or the Trustee from
the Guarantor Senior Representative and the holders of the Guarantor Designated
Senior Indebtedness that have given notice of a Non-payment Default at or after
the initiation of such Payment Blockage Period, after which in the case of
clause (x), (y) or (z), Multicare shall resume making any and all required
payments in respect of the Notes including any missed payments. Notwithstanding
any other provision of this Supplemental Indenture, in no event shall a Payment
Blockage Period extend beyond 179 days from the date of the receipt by Multicare
or the Trustee of the notice referred to in clause (ii) of this paragraph (b)
(the "Initial Blockage Period"). Not more than one Payment Blockage Period may
be commenced with respect to the Notes during any period of 360 consecutive
days; provided that subject to the limitations set forth in the next sentence,
the commencement of a Payment Blockage Period by the representative of Guarantor
Designated Senior Indebtedness other than the Credit Facility shall not bar the
commencement of another Payment Blockage Period by the representative for the
Credit Facility within such period of 360 consecutive days. Notwithstanding
anything in this Supplemental Indenture to the contrary, there must be 180 days
in any 360-day period in which no Payment Blockage Period is in effect. No event
of default (other than an event of default pursuant to the financial maintenance
covenants under the Credit Facility) that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an event of
default pursuant to any provision under which an event of default previously
existed or was
10
continuing shall constitute a new event of default for this purpose) on the date
of commencement of any Payment Blockage Period with respect to the Guarantor
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or shall be made, the basis for the commencement of a second Payment Blockage
Period by the representative for, or the holders of, such Guarantor Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, Multicare or
any of its Subsidiaries shall make, or the Trustee or any Holder shall receive,
any payment to the Trustee or any Holder prohibited by the foregoing provisions
of this Section, then and in such event such payment shall be paid over and
delivered forthwith to a Guarantor Senior Representative of the holders of the
Guarantor Designated Senior Indebtedness.
SECTION 3.04. Payment Permitted If No Default. Nothing contained in
this Article, in the Indenture or in any of the Notes shall prevent Multicare,
at any time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of Multicare referred to in Section
3.02 of this Supplemental Indenture and Section 11.02 of the Indenture or under
the conditions described in Section 3.03 of this Supplemental Indenture and
Section 11.03 of the Indenture, from making payments at any time of principal
of, premium, if any, or interest on the Notes.
SECTION 3.05. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness. Subject to the payment in full of all Guarantor Senior
Indebtedness, Holders shall be subrogated to the rights of the holders of such
Guarantor Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Guarantor Senior Indebtedness until
the principal of, premium, if any, and interest on the Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Guarantor Senior Indebtedness of any cash, property or securities to
which the Holders or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Guarantor Senior Indebtedness by Holders or the Trustee, shall,
as among Multicare, its creditors other than holders of Guarantor Senior
Indebtedness, and the Holders, be deemed to be a payment or distribution by
Multicare to or on account of the Guarantor Senior Indebtedness.
SECTION 3.06. Provisions Solely to Define Relative Rights. The
provisions of this Article are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Guarantor
Senior Indebtedness on the other hand. Nothing contained herein or in the
Indenture or in the Notes is intended to or shall (i) impair, as among
Multicare, its creditors other than holders of Guarantor Senior Indebtedness and
the Holders, the obligation of Multicare, which is absolute and unconditional,
to pay to the Holders the
11
principal of, premium, if any, and interest on the Notes under this Multicare
Senior Subordinated Guaranty in accordance with its terms; or (ii) affect the
relative rights against Multicare of the Holders and creditors of Multicare
other than their rights in relation to the holders of Guarantor Senior
Indebtedness; or (iii) prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon Default under the Indenture,
subject to the rights, under this Article of the holders of Guarantor Senior
Indebtedness to receive distributions and payments otherwise payable to Holders
(A) in any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of Multicare referred to in Section 3.02 of this Supplemental
Indenture, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (B) under the conditions specified in Section 3.03 of this
Supplemental Indenture, to prevent any payment prohibited by such Section or
enforce their rights pursuant to Section 3.03(c) of this Supplemental Indenture.
SECTION 3.07. Trustee to Effectuate Subordination. Each Holder by
his or her acceptance thereof authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of Multicare whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the indebtedness of Multicare owing
to such Holder in the form required in such proceedings and the causing of such
claim to be approved. If the Trustee does not file a proper claim at least 30
days before the expiration of the time to file such claim, then the holders of
Guarantor Senior Indebtedness, and their agents, trustees or other
representatives are authorized to do so for and on behalf of the Holders.
SECTION 3.08. No Waiver of Subordination Provisions. (a) No right of
any present or future holder of any Guarantor Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Multicare or any Holder or
by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by Multicare or any Holder with the terms, provisions and
covenants of this Supplemental Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section, the holders of Guarantor Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders to the holders of Guarantor Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, or waive compliance with
the terms of, Guarantor Senior
12
Indebtedness or any instrument evidencing the same or any agreement under which
Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (iii) release any Person liable in any manner for
the collection or payment of Guarantor Senior Indebtedness; (iv) exercise or
refrain from exercising any rights against Multicare and any other Person; (v)
amend, supplement, restate or otherwise modify or restructure the Guarantor
Senior Indebtedness; and (vi) otherwise deal with any Person liable on account
of Guarantor Senior Indebtedness; provided, however, that in no event shall any
such actions limit the right of the Holders to take any action to accelerate the
maturity of the Notes pursuant to Article Six of the Indenture or to pursue any
rights or remedies thereunder or under applicable laws if the taking of such
action does not otherwise violate the terms of this Article, subject to the
rights, if any, under this Article, of the holders, from time to time, of
Guarantor Senior Indebtedness to receive the cash, property or securities
receivable upon the exercise of such rights or remedies.
SECTION 3.09. Notice to Trustee. (a) Multicare shall give prompt
written notice to the Trustee of any fact known to Multicare which would
prohibit the making of any payment to or by the Trustee in respect of the Notes.
Notwithstanding the provisions of this Article or any provision of the
Indenture, the Trustee or any Paying Agent shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee or any Paying Agent in respect of the Notes, unless and until
the Trustee shall have received written notice thereof from Multicare, a holder
of Senior Indebtedness or a holder of Guarantor Senior Indebtedness or from a
Guarantor Senior Representative or any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of, premium, if any, or interest on any
Note), then, anything herein contained to the contrary notwithstanding but
without limiting the rights and remedies of the holders of Guarantor Senior
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee shall have
full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date; nor shall the Trustee be charged with knowledge of the
elimination of the act or condition preventing any such payment unless and until
the Trustee shall have received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and Multicare by a Person representing himself to
be a Guarantor Senior Representative or a holder of Guarantor Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a Guarantor Senior Representative or a holder of
Guarantor Senior Indebtedness (or a trustee, fiduciary or agent thereof and the
Trustee shall have no duty to investigate the authenticity thereof or the
authority of the person
13
signing and shall have no liability for relying thereon); provided, however,
that failure to give such notice to Multicare shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Guarantor Senior Indebtedness to participate
in any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Guarantor Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article,
and if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment or the Trustee or the Paying Agent may deposit the funds in
question with a court of competent jurisdiction.
SECTION 3.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of Multicare
referred to in this Article, the Trustee and the Holders shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of Guarantor Senior Indebtedness and other
indebtedness of Multicare, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article.
SECTION 3.11. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Guarantor Senior Indebtedness which may at any time be held by
it, to the same extent as any other holder of Guarantor Senior Indebtedness, and
nothing in this Supplemental Indenture shall deprive the Trustee of any of its
rights as such holder of Guarantor Senior Indebtedness. Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07 of the Indenture.
SECTION 3.12. Trust Moneys and Escrowed Funds Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from (x)
money or the proceeds of U.S. Government Obligations held in trust under Article
Eight by the Trustee for the payment of principal of, premium, if any, and
interest on the Notes (provided that at the time deposited, such deposit did not
violate any then outstanding Guarantor Senior Indebtedness) and (y) money or the
proceeds of U.S. Government Securities held under the Escrow Agreement shall not
be subordinated to the prior payment of any Guarantor Senior Indebtedness or
subject
14
to the restrictions set forth in this Article Three, and none of the Holders
shall be obligated to pay over any such amount to any holder of Guarantor Senior
Indebtedness.
SECTION 3.13. No Suspension of Remedies. Nothing contained in this
Article shall limit the right of the Trustee or the Holders to take any action
to accelerate the maturity of the Notes pursuant to Article Six of the Indenture
or to pursue any rights or remedies hereunder or under applicable law, subject
to the rights, if any, under this Article of the holders, from time to time, of
Guarantor Senior Indebtedness to receive the cash, property or securities
receivable upon the exercise of such rights or remedies.
SECTION 3.14. Trustee's Relation to Guarantor Senior Indebtedness.
With respect to the holders of Guarantor Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Guarantor Senior Indebtedness shall
be read into this Article against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Guarantor Senior Indebtedness.
SECTION 3.15. Other Rights of Holders of Guarantor Senior
Indebtedness. All rights and interests under this Supplemental Indenture of the
holders of Guarantor Senior Indebtedness, and all agreements and obligations of
the Trustee, the Holders and Multicare under this Article shall remain in full
force and effect irrespective of (i) any lack of validity or enforceability of
the Credit Facility, and promissory notes evidencing the Credit Facility or any
other agreement or instrument relating thereto or to any Guarantor Senior
Indebtedness or (ii) any other circumstance that might constitute a defense
available to, or a discharge of, a guarantor or surety (other than as a result
of any payments indefeasibly made on the Credit Facility or any Guarantor Senior
Indebtedness).
The holders of Guarantor Senior Indebtedness are hereby authorized
to demand specific performance of this Article, whether or not Multicare shall
have complied with any provisions of this Article applicable to it, at any time
when the Trustee or any Holder shall have failed to comply with any of these
provisions.
The provisions of this Article shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guarantor Senior Indebtedness is rescinded or must otherwise be returned by any
holder of Guarantor Senior Indebtedness upon the insolvency, bankruptcy or
reorganization of Multicare or otherwise, all as though such payment had not
been made.
15
ARTICLE FOUR
EXECUTION AND DELIVERY OF MULTICARE
SENIOR SUBORDINATED GUARANTY
SECTION 4.01. Execution of Multicare Senior Subordinated Guaranty.
(a) To evidence its Multicare Senior Subordinated Guaranty set forth in this
Supplemental Indenture, Multicare hereby agrees that a notation of such
Multicare Senior Subordinated Guaranty substantially in the form of Annex A
hereto shall be endorsed by an officer of Multicare on each Note authenticated
and delivered by the Trustee after the date hereof until consummation of the
Merger.
(b) Notwithstanding the foregoing, Multicare hereby agrees that the
Multicare Senior Subordinated Guaranty set forth herein shall remain in full
force and effect for the term provided herein notwithstanding any failure to
endorse on each Note a notation of such Multicare Senior Subordinated Guaranty.
(c) If an officer whose signature is on this Supplemental Indenture
or on the Multicare Senior Subordinated Guaranty no longer holds that office at
the time the Trustee authenticates the Note on which a Multicare Senior
Subordinated Guaranty is endorsed, the Multicare Senior Subordinated Guaranty
shall be valid nevertheless.
SECTION 4.02. Delivery and Enforceability of Multicare Senior
Subordinated Guaranty. (a) The delivery of the Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of the
Multicare Senior Subordinated Guaranty set forth in this Supplemental Indenture
on behalf of Multicare.
(b) Multicare hereby agrees that its obligations hereunder shall be
unconditional, regardless of the validity, regularity or enforceability of the
Notes or this Supplemental Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder with respect to any provisions hereof
or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
SECTION 4.03. Waiver of Presentment; Rights and Remedies. (a)
Multicare hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that the Multicare Senior Subordinated Guaranty
made pursuant to this Supplemental Indenture will not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
(b) If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Supplemental Indenture and such
proceeding has been discontinued
16
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, Multicare, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of Multicare, the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.01. Releases upon Release of Multicare Senior Subordinated
Guaranty. Concurrently with the release or discharge of this Multicare Senior
Subordinated Guaranty (other than a release or discharge by or as a result of
payment under such guarantee of Guaranteed Obligations), Multicare shall
automatically be released from and relieved of its obligations under this
Supplemental Indenture. Upon delivery by the Issuer to the Trustee of an
Officers' Certificate to the effect that such release or discharge has occurred,
the Trustee shall execute any documents reasonably required in order to evidence
the release of Multicare from its obligations under this Supplemental Indenture.
SECTION 5.02. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by Multicare, the Issuer and the
Trustee, the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby.
SECTION 5.03. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 5.04. Indenture and Supplemental Indenture Construed
Together. This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 5.05. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act that is required under such Act to be part of and govern
any provision of this Supplemental Indenture, the provision of such Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of such Act shall be deemed to apply to the Indenture as so
modified or to be excluded by this Supplemental Indenture, as the case may be.
17
SECTION 5.06. Separability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 5.07. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 5.08. Benefits of Supplemental Indenture, Etc. Nothing in
this Supplemental Indenture, the Indenture or the Notes express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
SECTION 5.09. Successors and Assigns. All covenants and agreements
in this Supplemental Indenture by Multicare shall bind its successors and
assigns, whether so expressed or not.
SECTION 5.10. Certain Duties and Responsibilities of Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
SECTION 5.11. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 5.12. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
Dated: _____________, 1997 THE MULTICARE COMPANIES, INC.
By:
----------------------------------------
Name:
Title
GENESIS ELDERCARE ACQUISITION
Dated: _____________, 1997 CORP.
By:
----------------------------------------
Name:
Title
Dated: _____________, 1997 PNC BANK, NATIONAL ASSOCIATION
as Trustee
By:
----------------------------------------
Name:
Title
ANNEX A TO SUPPLEMENTAL INDENTURE
FORM OF NOTATION OF MULTICARE SENIOR
SUBORDINATED GUARANTY ON NOTE
The Multicare Companies, Inc. ("Multicare"), as primary obligor and
not merely as surety, fully unconditionally and irrevocably guarantees (a) the
due and punctual payment of the principal of, premium, if any, or interest on
the Notes, whether at Stated Maturity or an Interest Payment Date, by
acceleration, call for redemption or otherwise, (b) the due and punctual payment
of interest on the overdue principal and premium of, and interest on the Notes
and (c) that in case of any extension of time of payment or renewal of any Notes
or any of such other 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 or otherwise.
Notwithstanding the foregoing, in the event that the Multicare
Senior Subordinated Guaranty would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant jurisdiction,
the liability of Multicare under its Multicare Senior Subordinated Guaranty
shall be limited to such amount as will not, after giving effect thereto, and to
all other liabilities of Multicare, result in such amount constituting a
fraudulent transfer or conveyance.
The Multicare Senior Subordinated Guaranty shall not be valid or
obligatory for any purpose until the certificate of authentication on the Note
upon which the Multicare Senior Subordinated Guaranty is noted shall have been
executed by the Trustee under the Indenture by the manual or facsimile signature
of one of its authorized officers.
THE MULTICARE COMPANIES, INC.
By:
----------------------------------------
Name:
Title
