Exhibit 4.11
MANOR CARE, INC.,
THE SUBSIDIARY GUARANTORS PARTIES HERETO,
AND
NATIONAL CITY BANK,
AS TRUSTEE
8% Senior Notes due 2008
INDENTURE
Dated as of March 8, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions................................................ 1
SECTION 1.2. Other Definitions.......................................... 10
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.......... 11
SECTION 1.4. Rules of Construction...................................... 11
ARTICLE II THE SECURITIES
SECTION 2.1. Form, Dating and Terms..................................... 12
SECTION 2.2. Execution and Authentication............................... 18
SECTION 2.3. Registrar and Paying Agent................................. 19
SECTION 2.4. Paying Agent To Hold Money in Trust........................ 19
SECTION 2.5. Securityholder Lists....................................... 20
SECTION 2.6. Transfer and Exchange...................................... 20
SECTION 2.7. Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors.......... 23
SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S....................... 25
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities............ 26
SECTION 2.10. Outstanding Securities.................................... 26
SECTION 2.11. Temporary Securities...................................... 27
SECTION 2.12. Cancellation.............................................. 27
SECTION 2.13. Payment of Interest; Defaulted Interest................... 28
SECTION 2.14. Computation of Interest................................... 29
SECTION 2.15. CUSIP and ISIN Numbers.................................... 29
ARTICLE III COVENANTS
SECTION 3.1. Payment of Securities...................................... 29
SECTION 3.2. [Reserved]................................................. 29
SECTION 3.3. Limitation on Liens........................................ 29
SECTION 3.4. Limitation on Sale and Lease-Back Transactions............. 31
SECTION 3.5. Limitation on Affiliate Transactions....................... 31
SECTION 3.6. Change of Control.......................................... 31
SECTION 3.7. Financial Statements....................................... 33
SECTION 3.8. Future Subsidiary Guarantors; Release of Guarantees........ 34
SECTION 3.9. Maintenance of Office or Agency............................ 35
SECTION 3.10. Corporate Existence....................................... 35
SECTION 3.11. Payment of Taxes and Other Claims......................... 35
SECTION 3.12. Payments for Consent...................................... 36
SECTION 3.13. Compliance Certificate.................................... 36
SECTION 3.14. Further Instruments and Acts.............................. 36
SECTION 3.15. Statement by Officers as to Default....................... 36
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ARTICLE IV SUCCESSOR COMPANY
SECTION 4.1. Consolidation, Merger and Sale of Assets................... 36
ARTICLE V REDEMPTION OF SECURITIES
SECTION 5.1. Optional Redemption........................................ 37
SECTION 5.2. Applicability of Article................................... 38
SECTION 5.3. Election to Redeem; Notice to Trustee...................... 38
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed.......... 38
SECTION 5.5. Notice of Redemption....................................... 38
SECTION 5.6. Deposit of Redemption Price................................ 39
SECTION 5.7. Securities Payable on Redemption Date...................... 39
SECTION 5.8. Securities Redeemed in Part................................ 40
ARTICLE VI DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default.......................................... 40
SECTION 6.2. Acceleration............................................... 42
SECTION 6.3. Other Remedies............................................. 42
SECTION 6.4. Waiver of Past Defaults.................................... 42
SECTION 6.5. Control by Majority........................................ 43
SECTION 6.6. Limitation on Suits........................................ 43
SECTION 6.7. Rights of Holders to Receive Payment....................... 43
SECTION 6.8. Collection Suit by Trustee................................. 43
SECTION 6.9. Trustee May File Proofs of Claim........................... 44
SECTION 6.10. Priorities................................................ 44
SECTION 6.11. Undertaking for Costs..................................... 44
ARTICLE VII TRUSTEE
SECTION 7.1. Duties of Trustee.......................................... 45
SECTION 7.2. Rights of Trustee.......................................... 46
SECTION 7.3. Individual Rights of Trustee............................... 46
SECTION 7.4. Trustee's Disclaimer....................................... 47
SECTION 7.5. Notice of Defaults......................................... 47
SECTION 7.6. Reports by Trustee to Holders.............................. 47
SECTION 7.7. Compensation and Indemnity................................. 47
SECTION 7.8. Replacement of Trustee..................................... 48
SECTION 7.9. Successor Trustee by Merger................................ 49
SECTION 7.10. Eligibility; Disqualification............................. 49
SECTION 7.11. Preferential Collection of Claims Against Company......... 49
SECTION 7.12. Trustee's Application for Instruction from the Company.... 50
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance........... 50
SECTION 8.2. Conditions to Defeasance................................... 51
SECTION 8.3. Application of Trust Money................................. 53
SECTION 8.4. Repayment to Company....................................... 53
SECTION 8.5. Indemnity for U.S. Government Securities................... 53
SECTION 8.6. Reinstatement.............................................. 53
PAGE
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ARTICLE IX AMENDMENTS
SECTION 9.1. Without Consent of Holders................................. 53
SECTION 9.2. With Consent of Holders.................................... 54
SECTION 9.3. Compliance with Trust Indenture Act........................ 55
SECTION 9.4. Revocation and Effect of Consents and Waivers.............. 55
SECTION 9.5. Notation on or Exchange of Securities...................... 55
SECTION 9.6. Trustee To Sign Amendments................................. 56
ARTICLE X SUBSIDIARY GUARANTEE
SECTION 10.1. Subsidiary Guarantee...................................... 56
SECTION 10.2. Limitation on Liability; Termination, Release and
Discharge Upon Merger or Consolidation................... 57
SECTION 10.3. Right of Contribution..................................... 58
SECTION 10.4. No Subrogation............................................ 58
ARTICLE XI MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls.............................. 59
SECTION 11.2. Notices................................................... 59
SECTION 11.3. Communication by Holders with other Holders............... 60
SECTION 11.4. Certificate and Opinion as to Conditions Precedent........ 60
SECTION 11.5. Statements Required in Certificate or Opinion............. 60
SECTION 11.6. When Securities Disregarded............................... 61
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar.............. 61
SECTION 11.8. Legal Holidays............................................ 61
SECTION 11.9. GOVERNING LAW............................................ 61
SECTION 11.10. No Recourse Against Others............................... 61
SECTION 11.11. Successors............................................... 62
SECTION 11.12. Multiple Originals....................................... 62
SECTION 11.13. Variable Provisions...................................... 62
SECTION 11.14. Qualification of Indenture............................... 62
SECTION 11.15. Table of Contents; Headings.............................. 62
iii
EXHIBIT A Form of the Initial Security
EXHIBIT B Form of the Exchange Security
EXHIBIT C Form of Indenture Supplement to Add Subsidiary Guarantors
iv
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ....................................... 7.10
(a)(2) ....................................... 7.10
(a)(3) ....................................... N.A.
(a)(4) ....................................... N.A.
(b) ....................................... 7.8; 7.10
(c) ....................................... N.A.
311(a) ....................................... 7.11
(b) ....................................... 7.11
(c) ....................................... N.A.
312(a) ....................................... 2.5
(b) ....................................... 11.3
(c) ....................................... 11.3
313(a) ....................................... 7.6
(b)(1) ....................................... N.A.
(b)(2) ....................................... 7.6
(c) ....................................... 7.6
(d) ....................................... 7.6
314(a) ....................................... 3.13; 11.2, 11.5
(b) ....................................... N.A.
(c)(1) ....................................... 11.4
(c)(2) ....................................... 11.4
(c)(3) ....................................... N.A.
(d) ....................................... N.A.
(e) ....................................... 11.5
315(a) ....................................... 7.1
(b) ....................................... 7.5; 11.2
(c) ....................................... 7.1
(d) ....................................... 7.1
(e) ....................................... 6.11
316(a)(last sentence) ....................................... 11.6
(a)(1)(A) ....................................... 6.5
(a)(1)(B) ....................................... 6.4
(a)(2) ....................................... N.A.
(b) ....................................... 6.7
317(a)(1) ....................................... 6.8
(a)(2) ....................................... 6.9
(b) ....................................... 2.4
318(a) ....................................... 11.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
v
1
INDENTURE dated as of March 8, 2001, among MANOR CARE, INC., a
Delaware corporation (the "Company"), THE SUBSIDIARY GUARANTORS (as defined) and
NATIONAL CITY BANK, a national banking association (the "Trustee"), as Trustee.
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of (i) the Company's 8%
Senior Notes due 2008 on the date hereof and the guarantees thereof by certain
of the Company's subsidiaries (the "Original Securities" or "Initial
Securities"), and (ii) if and when issued in exchange for Initial Securities as
provided in the Exchange and Registration Rights Agreement or a similar
agreement relating to Initial Securities, the Company's 8% Series B Senior Notes
due 2008 and the guarantees thereof by certain of the Company's subsidiaries
(the "Exchange Securities") and (iii) if and when issued as provided in the
Exchange and Registration Rights Agreement, the Private Exchange Securities (as
defined in the Exchange and Registration Rights Agreement; together with Initial
Securities and Exchange Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"2006 Notes" means MCA's $150.0 million principal amount of 7-1/2%
Senior Notes Due 2006.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided, however, that the existence of a management contract by the
Company or an Affiliate of the Company to manage another entity shall not be
deemed to be control.
"Applicable Percentage" means (i) 15%, if the aggregate principal
amount of notes and debt securities issued under other indentures or fiscal
agency agreements or other similar instruments (collectively, "Debt Securities")
then outstanding exceeds $100,000,000, (ii) 20%, if the aggregate principal
amount of Debt Securities then outstanding exceeds $50,000,000 but is less than
or equal to $100,000,000, or (iii) 25%, if the aggregate principal amount of
Debt Securities outstanding is less than or equal to $50,000,000.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction (including any period for
which such lease has been extended).
2
"Bank Debt" means any and all amounts, whether outstanding on the
Issue Date or Incurred after the Issue Date, payable by the Company under or in
respect of the Senior Credit Agreement and any related notes, collateral
documents, letters of credit and guarantees and any Interest Rate Agreement
entered into in connection with the Senior Credit Agreement, including
principal, premium, if any, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company at the rate specified therein whether or not a claim for post filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions are authorized or required by law
to close in New York City and Cleveland, Ohio.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Debt represented
by such obligation will be the capitalized amount of such obligation at the time
any determination thereof is to be made as determined in accordance with GAAP,
and the Stated Maturity thereof will be the date of the last payment of rent or
any other amount due under such lease prior to the first date such lease may be
terminated without penalty.
"Change of Control" means:
(1) any "person" or "group" of related persons (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that such person or group
shall be deemed to have "beneficial ownership" of all shares
that any such person or group has the right to acquire,
whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50%
of the total voting power of the Voting Stock of the Company
(or its successor by merger, consolidation or purchase of all
or substantially all of its assets) (for the purposes of this
clause, such person or group shall be deemed to beneficially
own any Voting Stock of the Company held by a parent entity,
if such person or group "beneficially owns" (as defined
above), directly or indirectly, more than 50% of the voting
power of the Voting Stock of such parent entity); or
3
(2) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors;
(3) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act); or
(4) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company.
"Change of Control Triggering Event" means the occurrence of a
Change of Control accompanied by a Rating Decline.
"Closing Date" with respect to any Initial Securities, means the
date on which such Initial Securities are originally issued.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Manor Care, Inc. or its successor.
"Consolidated Net Assets" means, with respect to any Person as of
any date of determination, the total assets of such Person and its subsidiaries
on a consolidated basis less current liabilities of such Person and its
subsidiaries on a consolidated basis as of such date, all determined in
accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who: (1) was a member of such
Board of Directors on the date of the Indenture; or (2) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other
similar instruments (including reimbursement obligations with
respect thereto except to the extent such reimbursement
obligation relates to a trade payable and such obligation is
satisfied within 30 days of Incurrence);
4
(4) the principal component of all obligations of such Person to
pay the deferred and unpaid purchase price of property (except
trade payables), which purchase price is due more than six
months after the date of placing such property in service or
taking delivery and title thereto;
(5) Capitalized Lease Obligations and all Attributable Debt of
such Person; and
(6) the principal component of Debt of other Persons to the extent
Guaranteed by such Person.
The amount of Debt of any Person at any date will be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated the Issue Date among the Initial Purchasers,
the Subsidiary Guarantors and the Company.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Existing Liens" means Liens on property or assets of the Company or
any Subsidiary existing on the Issue Date.
"Fiscal Year" means the fiscal year of the Company ending on
December 31 of each year.
"Foreign Subsidiary" of the Company shall mean any Subsidiary which
is incorporated or organized in a jurisdiction outside the United States and any
Subsidiary of such a Subsidiary.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
5
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt of such other Person
(whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial
statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered in the Note Register.
"Incur" means issue, create, assume, Guarantee, incur or otherwise
become liable for; and the terms "Incurred" and "Incurrence" have meanings
correlative to the foregoing.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means, collectively, JPMorgan, a division of
Chase Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc
of America Securities LLC and UBS Warburg LLC.
"Initial Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Issue Date" means the date on which the Original Securities are
originally issued.
"Legal Holiday" has the meaning ascribed to it in Section 11.8.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
6
"MCA" means Manor Care of America, Inc., a Delaware corporation and
a wholly-owned subsidiary of the Company, or any of its successors and assigns.
"Moody's" means Xxxxx'x Investors Service, Inc., or, if Xxxxx'x
Investors Service, Inc. shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "Moody's" shall mean any other
national recognized rating agency, other than S&P, that rates debt securities
having a maturity at original issuance of at least one year and that shall have
been designated by the Company.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to
which neither the Company nor its Subsidiaries (other than a Non-Recourse
Subsidiary) (A) provides credit support (including any undertaking, agreement or
instrument which would constitute Debt), (B) is directly or indirectly liable or
(C) constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary which (i) has not
acquired any assets (other than cash) directly or indirectly from the Company or
any Subsidiary, (ii) only owns assets acquired after the Issue Date or assets
acquired prior to the date such entity becomes a Subsidiary and (iii) has no
Debt other than Non-Recourse Debt.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Note Register" means the register of Securities, maintained by the
Registrar, pursuant to Section 2.3.
"Obligations" has the meaning ascribed to it in Section 10.1.
"Officer" means the Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or the Secretary of the
Company.
"Officers' Certificate" means a certificate signed by two Officers
or attorneys-in-fact or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company or the Subsidiary Guarantors, as applicable.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee.
"Original Securities" means the Company's 8% Senior Notes due 2008
originally issued on the Issue Date.
7
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Private Exchange Securities" shall have the meaning set forth in
the Exchange and Registration Rights Agreement or a similar agreement relating
to Initial Securities.
"QIB" means any "qualified institutional buyer" (as defined in Rule
144A under the Securities Act).
"Rating Agencies" mean Moody's and S&P.
"Rating Date" means the earlier of the date of public notice of (i)
the occurrence of a Change of Control or (ii) the intention of the Company to
effect a Change of Control.
"Rating Decline" shall be deemed to have occurred if, no later than
90 days after the Rating Date (which period shall be extended so long as the
rating of the Securities is under publicly announced consideration for possible
downgrade by either of the Rating Agencies), either of the Rating Agencies
assigns a rating to the Securities that is lower than the applicable rating of
the Securities on the Rating Date. A downgrade within rating categories, as well
as between rating categories, will be considered a Rating Decline.
"Receivables Securitization" means a public or private transfer of
or creation of an interest in receivables in the ordinary course of business of
the Company and its Subsidiaries and by which the Company or any such Subsidiary
directly or indirectly securitizes a pool of receivables, including but not
limited to any such transaction involving the sale of or creation of an interest
in specified receivables to a special purpose entity.
"Redemption Date" means, with respect to any redemption of
Securities, the date of redemption with respect thereto.
"Registered Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (A) the day on which the Initial Securities are offered
to persons other than distributors (as defined in Regulation S under the
Securities Act) and (B) the Issue Date.
"Restricted Securities Legend" means the Private Placement Legend
set forth in clause (1) of Section 2.1(c) or the Regulation S Legend set forth
in clause (2) of Section 2.1(c), as applicable.
8
"S&P" means Standard & Poor's Ratings Service or, if Standard &
Poor's Ratings Service shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "S&P" shall mean any other national
recognized rating agency, other than Moody's, that rates debt securities having
a maturity at original issuance of at least one year and that shall have been
designated by the Company.
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Company or its Subsidiaries of any
property or assets (other than any such arrangement involving (i) a lease for a
term, including renewal rights, of not more than 36 months, (ii) a lease of
property within 18 months from the acquisition or, in the case of the
construction, alteration or improvement of property, the later of the completion
of the construction, alteration or improvement of such property or the
commencement of commercial operation of the property, or (iii) leases between or
among the Company and a Subsidiary or Subsidiaries), which property or asset has
been or is to be sold or transferred by the Company or a Subsidiary to such
Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the collective reference to the Initial
Securities, Exchange Securities and Private Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Senior Credit Agreement" means, with respect to the Company, one or
more debt facilities (including, without limitation, (i) the Credit Agreement,
dated as of September 25, 1998, among the Company, MCA, Bank of America, N.A.,
as Administrative Agent, and the lenders parties thereto from time to time, as
amended by the First Amendment to Five Year Credit Agreement, dated as of
February 9, 2000, and by the Second Amendment to Five Year Credit Agreement,
dated as of September 22, 2000, and as may be further amended or modified from
time to time, and (ii) the Credit Agreement, dated as of September 25, 1998,
among the Company, MCA, Bank of America, N.A., as Administrative Agent, and the
lenders parties thereto from time to time, as amended by the First Amendment to
364 Day Credit Agreement, dated as of September 24, 1999, and by the Second
Amendment to 364 Day Credit Agreement, dated as of February 9, 2000, and by the
Third Amendment to 364 Day Credit Agreement, dated as of September 22, 2000, and
as may be further amended or modified from time to time) or commercial paper
facilities with banks or other institutional lenders providing for revolving
credit loans, term loans or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time (and whether or not with the original administrative
agent and lenders or another administrative agent or agents or other lenders and
whether provided under the original Credit Agreement or any other credit or
other agreement or indenture).
9
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay,
redeem or repurchase any such principal prior to the date originally scheduled
for the payment thereof.
"Subsidiary" of the Company means (i) a corporation a majority of
whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other Person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"Subsidiary Guarantee" means, individually, any Guarantee of payment
of the Securities by a Subsidiary Guarantor pursuant to the terms of this
Indenture and any supplemental indenture hereto (including pursuant to Exhibit
C), and, collectively, all such Guarantees. Each such Subsidiary Guarantee will
be in the form prescribed by this Indenture.
"Subsidiary Guarantor" means MCA and each Subsidiary of the Company
(other than a Subsidiary that does not guarantee obligations under the 2006
Notes) in existence on the Issue Date and, any Subsidiary that is required to
Guarantee the Securities under the terms of this Indenture.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this
Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"U.S. Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a
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depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Securities or a specific payment of principal of or interest on any such U.S.
Government Securities held by such custodian for the account of the holder of
such 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 Securities or the specific payment of principal
of or interest on the U.S. Government Securities evidenced by such depository
receipt.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
SECTION 1.2. Other Definitions.
Term Defined in
---- Section
----------
"Affiliate Transaction" 3.5
"Agent" 3.9
"Agent Member" 2.1(d)
"Authenticating Agent" 2.2
"Bankruptcy Law" 6.1
"Change of Control" 3.8
"Change of Control Offer" 3.6
"Change of Control Payment" 3.6
"Change of Control Payment Date" 3.6
"Company Order" 2.2
"covenant defeasance option" 8.1(b)
"cross-acceleration provision" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Global Note" 2.1(a)
"Global Securities" 2.1(a)
"Global Securities Legend" 2.1(c)
"IAI" 2.1(a)
"Institutional Accredited Investor Global Note" 2.1(a)
"legal defeasance option" 8.1(b)
"Paying Agent" 2.3
"Private Placement Legend" 2.1(c)
"Payment Default" 6.1
"Registrar" 2.3
"Regulation S" 2.1(a)
"Regulation S Global Note" 2.1(a)
"Regulation S Legend" 2.1(c)
"Regulation S Note" 2.1(a)
"Resale Restriction Termination Date" 2.6
"Rule 144A" 2.1(a)
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"Rule 144A Global Note" 2.1(a)
"Rule 144A Note" 2.1(a)
"Special Interest Payment Date" 2.13
"Special Record Date" 2.13
"Successor Company" 4.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP; and
(7) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
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ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms. (a) The Original Securities are
being offered and sold by the Company pursuant to a Purchase Agreement, dated
March 1, 2001, among the Company, the Subsidiary Guarantors and the Initial
Purchasers. The Original Securities will be resold initially only to (A)
qualified institutional buyers (as defined in Rule 144A under the Securities Act
("Rule 144A")) in reliance on Rule 144A ("QIBs") and (B) Persons other than U.S.
Persons (as defined in Regulation S under the Securities Act ("Regulation S"))
in reliance on Regulation S. Such Original Securities may thereafter be
transferred to among others, QIBs, purchasers in reliance on Regulation S and
IAIs in accordance with Rule 501 of the Securities Act in accordance with the
procedure described herein.
Initial Securities offered and sold to the Initial Purchasers, and
subsequently resold to QIBs in the United States of America in reliance on Rule
144A (the "Rule 144A Note"), will be issued on the Issue Date in the form of a
permanent global Security, without interest coupons, substantially in the form
of Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in (c) (the "Rule 144A
Global Note"), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Rule 144A Global Note may be represented by more than one certificate, if so
required by DTC's rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Rule 144A Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC or its nominee, as hereinafter
provided.
Initial Securities offered, sold and resold outside the United
States of America (the "Regulation S Note") in reliance on Regulation S shall be
issued in the form of a permanent global Security substantially in the form of
Exhibit A, including appropriate legends as set forth in (c) (the "Regulation S
Global Note"), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented by more than one certificate, if so
required by DTC's rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Regulation S
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Initial Securities resold after an initial resale to QIBs in
reliance on Rule 144A or an initial resale in reliance on Regulation S to
institutional "accredited investors" (as defined in Rules 501(a)(1), (2), (3)
and (7) under the Securities Act) who are not QIBs ("IAIs") in the United States
of America will be issued in the form of a permanent global Security
substantially in the form of Exhibit A (the "Institutional Accredited Investor
Global Note") deposited with the Trustee, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Institutional Accredited Investor Global Note may be represented by more that
one certificate, if so required by DTC's rules regarding the maximum principal
13
amount to be represented by a single certificate. The aggregate principal amount
of the Institutional Accredited Investor Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A Note,
the Regulation S Note and the Institutional Accredited Investor Global Note will
be issued in the form of a permanent global Security substantially in the form
of Exhibit B, which is hereby incorporated by reference and made a part of this
Indenture, deposited with the Trustee as hereinafter provided, including the
appropriate legend set forth in (c) (the "Exchange Global Note"). The Exchange
Global Note may be represented by more than one certificate, if so required by
DTC's rules regarding the maximum principal amount to be represented by a single
certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Investor Global Note and the Exchange Global Note are sometimes
collectively herein referred to as the "Global Securities."
Except as described in the succeeding two sentences, the principal
of (and premium, if any) and interest on the Securities shall be payable at the
office or agency of the Company maintained for such purpose in The City of New
York, or at such other office or agency of the Company as may be maintained for
such purpose pursuant to Section 2.3; provided, however, that, at the option of
the Company, each installment of interest may be paid by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Note Register. Payments in respect of Securities represented by a Global
Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by DTC.
Payments in respect of Securities represented by Definitive Securities
(including principal, premium, if any, and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
The Private Exchange Securities shall be in the form of Exhibit A.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage, in addition to those set forth on Exhibits A and B
and in (c). The Company and the Trustee shall approve the forms of the
Securities and any notation, endorsement or legend on them. Each Security shall
be dated the date of its authentication. The terms of the Securities set forth
in Exhibit A and Exhibit B are part of the terms of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
14
(c) Restrictive Legends. Unless and until (i) an Initial Security
is sold under an effective registration statement or (ii) an Initial Security is
exchanged for an Exchange Security in connection with an effective registration
statement, in each case pursuant to the Exchange and Registration Rights
Agreement or a similar agreement,
1. the Rule 144A Global Note and the Institutional Accredited Investor Global
Note shall bear the following legend (the "Private Placement Legend") on the
face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
15
TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."; and
2. the Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S.
PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2) BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
16
INFORMATION SATISFACTORY TO EACH OF THEM AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE
DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE
SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. 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."
3. The Global Securities, whether or not an Initial Security, shall bear the
following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply
only to Global Securities deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in the
name of DTC for such Global Security or the nominee of DTC, (y) be delivered to
the Trustee as custodian for DTC and (z) bear legends as set forth in Section
2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by DTC or by the Trustee as the custodian of DTC or under such
Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of
17
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or impair, as between DTC and its Agent
Members, the operation of customary practices of DTC governing the exercise of
the rights of a Holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (e) of this Section to
beneficial owners who are required to hold Definitive Securities, the Securities
Custodian shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global Security
to beneficial owners pursuant to subsection (e) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by DTC in exchange for its beneficial interest
in such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations.
(vi) The registered Holder of a Global Security 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 Securities.
(e) Definitive Securities. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain Definitive Securities in exchange for
their beneficial interests in a Global Security upon written request in
accordance with DTC's and the Registrar's procedures. In addition, Definitive
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (a) DTC notifies the Company that
it is unwilling or unable to continue as depositary for such Global Security or
DTC ceases to be a clearing agency registered under the Exchange Act, at a time
when DTC is required to be so registered in order to act as depositary, and in
each case a successor depositary is not appointed by the Company within 90 days
of such notice or, (b) the Company executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Security shall be so
exchangeable or (c) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an interest
in a Global Security pursuant to Section 2.1(d)(iv) or (v) shall, except as
otherwise provided by Section 2.6(c), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Security set forth in Section
2.1(c).
(iii) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and the
18
Company shall execute, and the Trustee shall authenticate and deliver, to the
transferring Holder a new Definitive Security representing the principal amount
not so transferred.
SECTION 2.2. Execution and Authentication. One Officer shall sign
the Securities for the Company by manual or facsimile signature. If an Officer
whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless,
after giving effect to any exchange of Initial Securities for Exchange
Securities.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and delivery
of this Indenture, the Trustee shall authenticate and make available for
delivery: (1) Original Securities for original issue on the Issue Date in an
aggregate principal amount of $200.0 million and (2) Exchange Securities for
issue only in a Registered Exchange Offer pursuant to the Exchange and
Registration Rights Agreement, and only in exchange for Initial Securities of an
equal principal amount, in each case upon a written order of the Company signed
by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company (the "Company Order"). Such Company Order
shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities. The aggregate
principal amount of notes which may be authenticated and delivered under this
Indenture is limited to $200.0 million outstanding, except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities of the same class pursuant to Section 2.6,
Section 2.9, Section 2.11, Section 5.8, Section 9.5 and except for transactions
similar to the Registered Exchange Offer. All Securities issued on the Issue
Date shall be identical in all respects other than issue dates, the date from
which interest accrues and any changes relating thereto. Notwithstanding
anything to the contrary contained in this Indenture, all notes issued under
this Indenture shall vote and consent together on all matters as one class and
no series of notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent. An Authenticating Agent has the same rights as a Paying
Agent to deal with Holders or an Affiliate of the Company.
In case the Company or any Subsidiary Guarantor, pursuant to Article
IV, shall be consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company or
any Subsidiary Guarantor shall have been merged, or the Person which shall have
received a
19
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
IV, any of the Securities authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section 2.2 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Company shall
cause each of the Registrar and the Paying Agent to maintain an office or agency
in the Borough of Manhattan, The City of New York. The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "Note
Register"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints DTC to act as depository with respect
to the Global Securities. The Trustee is authorized to enter into a letter of
representations with DTC in the form provided to the Trustee by the Company and
to act in accordance with such letter.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities.
SECTION 2.4. Paying Agent To Hold Money in Trust. By at least 10:00
a.m. (New York City time) on the date on which any principal of or interest on
any Security is due and payable, the Company shall deposit with the Paying Agent
a sum sufficient to pay such principal or interest when due. The Company 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 Securityholders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Securities and shall notify the Trustee in writing of any
default by the Company or any Subsidiary Guarantor in making any such payment.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and
20
hold it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section, the Paying Agent (if other than the Company or a Subsidiary) shall have
no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar, or to the extent
otherwise required under the TIA, the Company, on its own behalf and on behalf
of each of the Subsidiary Guarantors, shall furnish to the Trustee, in writing
at least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6. Transfer and Exchange. (a) The following provisions
shall apply with respect to any proposed transfer of a Rule 144A Note or an
Institutional Accredited Investor Global Note prior to the date which is two
years after the later of the date of its original issue and the last date on
which the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto) (the "Resale Restriction Termination
Date"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Global Note or a beneficial interest therein to a QIB shall be
made upon the representation of the transferee in the form as set forth on
the reverse of the Security that it is purchasing 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, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Global Note or a beneficial interest therein to an IAI shall be
made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.7 from the proposed
transferee and, if requested by the Company or the Trustee, the delivery
of an opinion of counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Global Note or a beneficial interest therein to a Non-U.S. Person
shall be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.8 from the proposed
transferee and, if requested by the Company or the
21
Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee,
in the form of assignment on the reverse of the certificate, that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent
of a certificate substantially in the form set forth in Section 2.7 from
the proposed transferee and, if requested by the Company or the Trustee,
the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Section
2.8 hereof from the proposed transferee and, if requested by the Company
or the Trustee, receipt by the Trustee or its agent of an opinion of
counsel, certification and/or other information satisfactory to each of
them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred without requiring certification set forth
in Section 2.7, Section 2.8 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.1 or this Section
2.6. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
22
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this Article
II, execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require from a
Holder payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith (other than
any such transfer taxes, assessments or similar governmental charges
payable upon exchange or transfer pursuant to Section 3.6 or Section 9.5).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Securities and ending at the close of business on the
day of such mailing or (2) 15 days before an interest payment date and
ending on such interest payment date.
(iv) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar shall be affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an interest
in a Global Security pursuant to Section 2.1(d) shall, except as otherwise
provided by Section 2.6(c), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in Section
2.1(c).
(vi) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, DTC or other Person with respect to the accuracy
of the records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than DTC) of any notice (including any notice of redemption) or the payment of
any amount or delivery of any Securities (or other security or property) under
or with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders in respect of the
Securities shall be given or made only to or upon the order of the registered
Holders (which shall be DTC or its nominee in the case of a Global Security).
The rights of beneficial owners in any Global Security shall be exercised only
through DTC subject to the applicable rules and procedures of DTC. The Trustee
may rely and shall be fully protected
23
in relying upon information furnished by DTC with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among DTC participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.7. Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors.
[Date]
Manor Care, Inc.
c/o National City Bank
0000 X. 000xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Operations
Locator 01-5352
Dear Sirs:
This certificate is delivered to request a transfer of $_________
principal amount of the 8% Senior Notes due 2008 (the "Notes") of Manor Care,
Inc. (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
-----------------------------------------
Address:
--------------------------------------
Taxpayer ID Number:
---------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar
24
to the Notes in the normal course of our business. We and any accounts for which
we are acting are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("Rule 144A"), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Securities of $250,000 or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that is acquiring such
Securities for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Securities pursuant to clauses (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:
------------------------
BY:
--------------------------------
25
SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S.
[Date]
Manor Care, Inc.
c/o National City Bank
0000 X. 000xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Operations
Locator 01-5352
Re: Manor Care, Inc.
8% Senior Notes due 2008 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $200,000,000 aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) (1) the offer of the Securities was not made to a person in
the United States;
(2) either (i) 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 or (ii) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(b) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2)
of Regulation S, as applicable; and
(c) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case
may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
26
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities. If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met and the Holder satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Security is
replaced, and, in the absence of notice to the Company, any Subsidiary Guarantor
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon Company Order the Trustee shall authenticate
and make available for delivery, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it
27
for cancellation and those described in this Section as not outstanding. A
Security ceases to be outstanding in the event the Company or a Subsidiary of
the Company holds the Security, provided, however, that (i) for purposes of
determining which are outstanding for consent or voting purposes hereunder,
Securities shall cease to be outstanding in the event the Company or an
Affiliate of the Company holds the Security and (ii) in determining whether the
Trustee shall be protected in making a determination whether the Holders of the
requisite principal amount of outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have consented to or voted in favor
of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or
vote, only Securities which a Trust Officer of the Trustee actually knows to be
held by the Company or an Affiliate of the Company shall not be considered
outstanding.
If a Security is replaced pursuant to Section 2.9, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.11. Temporary Securities. Until Definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities. After
the preparation of Definitive Securities, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
holder of Definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
return to the Company all Securities surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation for
any reason other than in connection with a transfer or exchange.
28
SECTION 2.13. Payment of Interest; Defaulted Interest. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any interest payment date shall be paid to the Person in whose name such
Security (or one or more predecessor Securities) is registered at the close of
business on the regular record date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid when
the same becomes due and payable and such nonpayment continues for a period of
30 days shall forthwith cease to be payable to the Holder on the regular record
date by virtue of having been such Holder, and such defaulted interest and (to
the extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a
Special Record Date (as defined below) for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Interest Payment Date"), and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a record date (the "Special Record Date") for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the Special -------------------
Interest Payment Date and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor to be given in the manner provided for in Section
11.2, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
29
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.15. CUSIP and ISIN Numbers. The Company in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP or ISIN numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP and ISIN numbers.
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 3.2. [Reserved]
SECTION 3.3. Limitation on Liens. (a) Except as provided in Section
3.3(b), the Company shall not, and shall not permit any Subsidiary to, create,
Incur or assume any Lien on any property or assets of the Company or any
Subsidiary in order to secure any Debt of the Company or any Subsidiary, without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt which is not subordinated to the Securities) shall
be secured equally and ratably with (or prior to) such Debt, so long as such
Debt shall be so secured.
30
(b) The limitation set forth in Section 3.3(a) shall not apply to
(i) any Lien if, after giving effect thereto, the aggregate amount of all Debt
of the Company and its Subsidiaries secured by Liens existing at the time
(excluding any Debt secured by Liens permitted to be Incurred by clauses (ii)
through (xvii) below) would not exceed the Applicable Percentage of the
Consolidated Net Assets of the Company; (ii) any Lien if an amount of cash equal
to the net proceeds of the Debt secured by such Lien is used within 12 months of
such creation, Incurrence or assumption to (x) acquire additional property or
assets (or to make investments in Persons who, after giving effect to such
investments, will become Subsidiaries) or (y) make an offer to purchase the
Securities at 100% of the principal amount thereof plus accrued interest, if
any, to the date of purchase; (iii) Existing Liens and Liens created, Incurred
or assumed after the Issue Date on property or assets of the Company or of any
Subsidiary that were subject to an Existing Lien; (iv) Liens on property or
assets of any Person existing at the time such Person becomes a Subsidiary or
merges into or consolidates with the Company or a Subsidiary; (v) Liens on
property or assets existing at the time of acquisition thereof by the Company or
any Subsidiary; (vi) Liens to secure the financing of the acquisition,
construction, alteration or improvement of property or assets of the Company or
any Subsidiary (or of any Person who, after giving effect to such financing,
will become Subsidiaries), provided that such Liens are created not later than
18 months after such acquisition or, in the case of construction, alteration or
improvement of property or assets, the later of the completion thereof or
commencement of commercial operation of such property or assets; (vii) Liens in
favor of the Company or any Subsidiary; (viii) Liens in favor of or required by
federal, state or local governmental authorities, including any department or
instrumentality thereof; (ix) Liens on property or assets of, or on any shares
of stock or other equity interest in, a Foreign Subsidiary to secure Debt of a
Foreign Subsidiary or, a Non-Recourse Subsidiary to secure Non-Recourse Debt;
(x) Liens to secure Debt of joint ventures in which the Company or a Subsidiary
has an interest, to the extent such Liens are on property or assets of or equity
interests in such joint ventures; (xi) Liens on current assets to secure Debt
Incurred for working capital purposes, provided that such Debt matures no later
than 18 months from the date of Incurrence; (xii) Liens on receivables in
connection with Receivables Securitizations; (xiii) Liens of carriers,
warehousemen, mechanics, materialmen and landlords Incurred in the ordinary
course of business for sums not overdue or being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the Company's books; (xiv) Liens Incurred in the ordinary course of
business in connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of
bids, tenders, trade contracts (other than for Debt), statutory obligations,
leases and contracts (other than for Debt) entered into in the ordinary course
of business or to secure obligations on surety or appeal bonds or performance
bonds; (xv) easements, restrictions and other minor defects of title which are
not, in the aggregate, material and which do not, individually or in the
aggregate, have a materially adverse effect; (xvi) leases or subleases granted
to others not interfering in any material respect with the business of the
Company or any Subsidiary, and any interest or title of a lessor under any lease
permitted under the Indenture; and (xvii) any extension, renewal or replacement,
as a whole or in part, of any Lien referred to in the foregoing clauses (i) to
(xvi), provided, however, that (a) such extension, renewal or replacement Lien
shall be limited to all or a part of the same property or assets that secured
the Lien being extended,
31
renewed or replaced and (b) the principal amount of Debt (or, if such Debt
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount) secured
by such extended, renewed or replaced Lien does not exceed the principal amount
of Debt (or, if such Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof, such
lesser amount) which was secured by the Lien being extended, renewed or
replaced.
SECTION 3.4. Limitation on Sale and Lease-Back Transactions. The
Company will not, and will not permit any Subsidiary to, enter into any Sale and
Lease-Back Transaction unless (a) the Company or such Subsidiary would, at the
time of entering into a Sale and Lease-Back Transaction, be entitled to Incur
Debt secured by a Lien on the property or asset to be leased in an amount at
least equal to the Attributable Debt in respect of such transaction without
equally and ratably securing the Securities pursuant to Section 3.3, or (b) the
proceeds of the sale of the property or assets to be leased are at least equal
to their fair value (the amount of such proceeds, if other than in cash, to be
determined by the chief financial or accounting officer of the Company whose
determination shall be conclusive) and an amount in cash equal to the net
proceeds is applied, within 12 months of the effective date of such transaction
to (i) acquire additional property or assets (or to make investments in entities
which, after giving effect to such investment, will become Subsidiaries), (ii)
to retire Debt which is pari passu with the Securities (provided that in
connection with any such retirement, any related loan commitment or the like
shall be reduced in an amount equal to the principal amount so retired) or (iii)
offer to purchase the Securities at 100% of the principal amount thereof, plus
accrued interest, if any, to the date of purchase.
SECTION 3.5. Limitation on Affiliate Transactions. Neither the
Company nor any of its Subsidiaries shall sell, lease, transfer or otherwise
dispose of any of its properties or assets to or purchase any property or assets
from, or enter into any contract, agreement, understanding, loan, advance or
guaranty with, or for the benefit of, an Affiliate of the Company (other than a
Subsidiary) (an "Affiliate Transaction") having a value, or for consideration
having a value, in excess of $20,000,000 individually or in the aggregate unless
the Board of Directors of the Company shall determine that the terms of such
Affiliate Transaction are no less favorable to the Company or such Subsidiary
than those which might be obtained at the time of such Affiliate Transaction
from Persons who are not Affiliates. The restrictions of this Section 3.5 are
not applicable to the payment of reasonable and customary fees to directors of
the Company or a Subsidiary who are not employees, the payment of compensation
to officers of the Company or a Subsidiary and any transaction between or among
any of the Company and its Subsidiaries.
SECTION 3.6. Change of Control. Upon the occurrence of a Change of
Control Triggering Event, each Holder will have the right to require the Company
to offer to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount of the Securities plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date).
Within 30 days following any Change of Control Triggering Event, the
Company shall mail a notice (the "Change of Control Offer") to each Holder at
the address as it appears on the Note Register, with a copy to the Trustee,
stating: (i) that a Change of Control Triggering Event has occurred and that
such Holder has the right to require the Company pursuant to this Section 3.6 to
purchase such Holder's Securities at a purchase price in cash equal to 101% of
the
32
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date) (the "Change of Control
Payment"); (ii) the repurchase date (which shall be a Business Day that is no
earlier than 30 days nor later than 60 days from the date that the Company mails
or causes to be mailed such notice to the Holders) (the "Change of Control
Payment Date"); (iii) that any Security not tendered shall continue to accrue
interest, if any; (iv) that, unless the Company defaults in the payment of
principal or interest, all Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest, if any, after the Change
of Control Payment Date; (v) that Holders electing to have any Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the date of
purchase for the Change of Control Payment Date; (vi) that Holders shall be
entitled to withdraw their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities delivered for
purchase, and a statement that such Holder is withdrawing its election to have
the Securities purchased; (vii) that Holders whose Securities are being
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; and (viii) the procedures determined by the Company, consistent with
this Section 3.6, that a Holder must follow in order to have its Securities
repurchased.
Prior to mailing a Change of Control Offer, and as a condition to
such mailing (i) the requisite holders of each issue of Debt issued under an
indenture or other agreement that may be violated by such payment shall have
consented to such Change of Control Offer being made and waived the event of
default, if any, caused by the Change of Control Triggering Event or (ii) the
Company will repay all outstanding Debt issued under an indenture or other
agreement that may be violated by a payment to the holders of Securities under a
Change of Control Offer or the Company must offer to repay all such Debt, and
make payment to the holders of such Debt that accept such offer and obtain
waivers of any event of default from the remaining holders of such Debt. The
Company will effect such repayment or obtain such consent and waiver within 30
days following any Change of Control Triggering Event, it being a Default of
this Section 3.6 if the Company fails to so comply.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment all Securities or portions thereof (equal
to $1,000 or an in integral multiple thereof) properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all the Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
the Securities so accepted together with an Officers' Certificate stating the
aggregate principal amount of such Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
the Securities so tendered the Change of Control Payment for such Securities,
and the Trustee shall promptly authenticate and mail (or cause to be transferred
by book-entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
such new Security shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly
33
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest, if any, will be paid to the Person in whose name a note is
registered at the close of business on such record date, and no additional
interest will be payable to holders who tender pursuant to the Change of Control
Offer.
The Company will not be required to make a Change of Control Offer
upon a Change of Control Triggering Event if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 3.6 applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 3.6. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
SECTION 3.7. Financial Statements. So long as the Company is not
subject to Section 13 or 15(d) of the Exchange Act, it shall file with the
Trustee and mail to each Holder at such Holder's registered address the
following:
(a) within 120 days after the end of each fiscal year, its
consolidated balance sheets as of the close of such fiscal year and the
preceding fiscal year and related consolidated statements of income and
shareholders' equity and cash flows, showing the financial condition of the
Company and its consolidated Subsidiaries as of the close of such fiscal year
and the two preceding fiscal years, all audited by an independent public
accounting firm of recognized national standing and accompanied by an opinion of
such accounting firm to the effect that such financial statements fairly present
the financial condition and results of operations of the Company and its
consolidated Subsidiaries in accordance with GAAP consistently applied, except
as disclosed in the notes thereto. Such balance sheets and related statements
shall be substantially comparable in detail to the audited balance sheets and
related statements included in the Company's Offering Memorandum dated March 1,
2001 (the "Offering Memorandum"), relating to the Original Securities and shall
be accompanied by a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" ("MD&A") substantially comparable in detail to the
MD&A included in the Offering Memorandum with respect to the Company's fiscal
years ended December 31, 1998, 1999 and 2000; and
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
consolidated statements of income and cash flows, stating the financial
condition of the Company and its consolidated Subsidiaries as of the close of
such fiscal quarter and as of the end of the preceding fiscal year (and the
corresponding quarter in the preceding fiscal year) and the then-elapsed portion
of such fiscal
34
year (and the corresponding period in the preceding fiscal year). Such balance
sheets and related statements shall be prepared in accordance with GAAP
consistently applied except as disclosed in the notes thereto and shall be
accompanied by an MD&A substantially comparable in detail to the MD&A included
in the Offering Memorandum.
(c) The Company shall deliver to the Holder, upon request of such
Holder, as many copies of the foregoing as may be reasonably requested by such
Holder.
SECTION 3.8. Future Subsidiary Guarantors; Release of Guarantees.
After the Issue Date, the Company will cause (i) each Subsidiary (other than a
Subsidiary that does not guarantee obligations under the 2006 Notes) created or
acquired by the Company or one or more of its Subsidiaries to execute and
deliver to the Trustee a Subsidiary Guarantee pursuant to which such Subsidiary
Guarantor will unconditionally Guarantee, on a joint and several basis, the full
and prompt payment of the principal of, premium, if any, and interest on the
Securities on a senior basis; provided that (A) a Subsidiary Guarantee from any
Subsidiary (other than MCA so long as all or any portion of the 2006 Notes shall
remain outstanding) shall be released upon the release of such Subsidiary from
any liability under (x) the indenture relating to the 2006 Notes or any related
guarantee or similar obligation and (y) any Senior Credit Agreement and any
guarantee or similar obligation in respect thereof and (B) MCA shall be released
from its obligations under its Subsidiary Guarantee upon the repayment in full
of the 2006 Notes (so long as no default or event of default shall have occurred
as a consequence thereof) and the release of MCA from any obligation it may have
in respect of the Senior Credit Agreement and any guarantee or similar
obligation in respect thereof; provided that such release of a Subsidiary
Guarantor shall not occur in the event such Subsidiary Guarantor is required to
deliver a Guarantee in accordance with the paragraph below and then such
Subsidiary Guarantee shall only be released in accordance with the paragraph
below. Upon notice by the Company to the Trustee of the occurrence of the events
described in either of the two preceding sentences, the Trustee shall execute
any documents reasonably required in order to evidence the release of any
Subsidiary Guarantor from its obligations under the Subsidiary Guarantee.
The Company will not permit any Subsidiary to Guarantee the payment
of any Debt of the Company unless (i) such Subsidiary simultaneously executes
and delivers a supplemental indenture to the Indenture providing for a Guarantee
of payment of the Securities by such Subsidiary; (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 Company or any Subsidiary as a result of any payment by such Subsidiary
under its Guarantee; and (iii) such Subsidiary shall deliver to the Trustee an
Opinion of Counsel to the effect that (A) the supplemental indenture has been
duly executed and authorized and (B) the supplemental indenture constitutes a
valid, binding and enforceable obligation of such Subsidiary, except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
(including, without limitation, all laws relating to fraudulent transfers) and
except insofar as enforcement thereof is subject to general principles of
equity; provided that such Subsidiary Guarantee shall be released upon the
release of such Subsidiary from liability in respect of Guarantees of Debt of
the Company; and, provided, further, that any release of a Subsidiary Guarantee
under the preceding proviso will not impair the rights of the Holders to receive
Subsidiary Guarantees of the Securities in accordance with this paragraph in the
event future Debt of the Company is Guaranteed by such Subsidiary.
35
SECTION 3.9. Maintenance of Office or Agency. The Company will
maintain in The City of New York, an office or agency where the Securities may
be presented or surrendered for payment, where, if applicable, the Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The agency of National City Bank (the "Agent")
currently located at National City Bank c/o Mellon Securities Trust Company, 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 in the City of New York shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Agent of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.10. Corporate Existence. Subject to Article IV and Section
10.2, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Significant Subsidiary or the respective
corporate, partnership or other existences of each member of any group of
Subsidiaries that taken together would constitute a Significant Subsidiary of
the Company and the rights (charter and statutory) licenses and franchises of
the Company and each Significant Subsidiary or each member of any group of
Subsidiaries that taken together would constitute a Significant Subsidiary of
the Company; provided, however, that the Company shall not be required to
preserve any such right, license or franchise or the corporate, partnership or
other existence of any Significant Subsidiary or the respective corporate,
partnership or other existences of each member of any group of Subsidiaries that
taken together would constitute a Significant Subsidiary of the Company, if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and each of
its Subsidiaries, taken as a whole, and that the loss thereof is not, and will
not be, disadvantageous in any material respect to the Holders; provided,
further, that the Company shall not be required to preserve any such right,
license or franchise or the corporate, partnership or other existence of a
Subsidiary that is neither a Significant Subsidiary nor a member of any group of
Subsidiaries that taken together would constitute a Significant Subsidiary of
the Company; and, provided, further, the Company may consolidate with or merge
with or into, or convey, transfer or lease all or substantially all its assets
to, a Person in accordance with Section 4.1 and 10.2.
SECTION 3.11. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all
36
material taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company
or any Subsidiary and (ii) all lawful claims for labor, materials and supplies,
which, if unpaid, might by law become a material liability or lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of
the Company), are being maintained in accordance with GAAP or where the failure
to effect such payment will not be disadvantageous to the Holders.
SECTION 3.12. Payments for Consent. Neither the Company nor any of
its Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fees or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or is paid to all Holders of the Securities
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
SECTION 3.13. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each Fiscal Year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers know
of any Default or Event of Default that occurred during such period. If they do,
the certificate shall describe the Default or Event of Default, its status and
what action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 3.14. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.15. Statement by Officers as to Default. The Company shall
deliver to the Trustee, as soon as possible and in any event within 30 days
after the Company becomes aware of the occurrence of any Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Company proposes to take with
respect thereto.
ARTICLE IV
Successor Company
SECTION 4.1. Consolidation, Merger and Sale of Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
37
(i) the resulting, surviving or transferee Person (the "Successor
Company") if not the Company shall be a corporation, partnership, trust or
limited liability company organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities, this Indenture and the Exchange and Registration Rights
Agreement;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) each Subsidiary Guarantor (unless it is the other party to the
transactions described above, in which case clause (i) and Section 10.2
shall apply) shall have by supplemental indenture confirmed that its
Subsidiary Guarantee shall apply for such Person's obligations in respect
of this Indenture and the Securities and its obligations under the
Exchange and Registration Rights Agreement shall continue to be in effect;
and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if any,
comply with this Indenture.
For purposes of this Section 4.1, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The Successor Company will succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but, in
the case of a lease of all or substantially all its assets, the Company will not
be released from the obligation to pay the principal of and interest on the
Securities.
If, upon any consolidation or merger of the Company with or into any
other corporation, or upon any sale, conveyance or lease of all or substantially
all of its property and assets to any other corporation, any of the property of
the Company or of any Subsidiary would thereupon become subject to any Lien, the
Company will first secure the Securities equally and ratably with any other
obligations of the Company or any Subsidiary then entitled thereto by a direct
Lien on all such property prior to all Liens other than any theretofore existing
thereon.
ARTICLE V
Redemption of Securities
SECTION 5.1. Optional Redemption. The Securities may be redeemed, as
a whole or from time to time in part, subject to the conditions and at the
redemption prices specified in the form of Securities set forth in Exhibits A
and B hereto, which are hereby
38
incorporated by reference and made a part of this Indenture, together with
accrued and unpaid interest to the Redemption Date.
SECTION 5.2. Applicability of Article. Redemption of Securities at
the election of the Company or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision and
this Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities pursuant to Section 5.1 shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, upon not later than the earlier of the date that is 30 days
prior to the Redemption Date fixed by the Company or the date on which notice is
given to the Holders (except as provided in Section 5.5 or unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed and
shall deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 5.4.
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities are to be redeemed at any time pursuant to an
optional redemption, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
outstanding Securities not previously called for redemption, in compliance with
the requirements of the principal securities exchange, if any, on which such
Securities are listed, or, if such Securities are not so listed, on a pro rata
basis, by lot or by such other method as the Trustee shall deem fair and
appropriate (and in such manner as complies with applicable legal requirements)
and which may provide for the selection for redemption of portions of the
principal of the Securities; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to
less than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 5.5. Notice of Redemption. Notice of redemption shall be
given in the manner provided for in Section 11.2 not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. The Trustee shall give notice of redemption in the Company's name and
at the Company's expense; provided, however, that the Company shall deliver to
the Trustee, at least 45 days prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the following items.
All notices of redemption shall state:
39
(1) the Redemption Date,
(2) the redemption price and the amount of accrued interest to the
Redemption Date payable as provided in Section 5.7, if any,
(3) if less than all outstanding Securities are to be redeemed,
the identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the redemption price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
5.7) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and, unless the Company defaults in making the
redemption payment, that interest on Securities called for redemption (or
the portion thereof) will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the redemption price and accrued interest, if
any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price,
(9) the CUSIP number, and that no representation is made as to the
accuracy or correctness of the CUSIP number, if any, listed in such notice
or printed on the Securities, and
(10) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 5.6. Deposit of Redemption Price. Prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.4) an amount of money sufficient to pay the redemption
price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price
therein specified (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the
payment of the redemption price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice,
40
such Security shall be paid by the Company at the redemption price, together
with accrued interest, if any, to the Redemption Date (subject to the rights of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which is to
be redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 3.9 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security at the expense of the Company, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, provided that each such new Security will be in a
principal amount of $1,000 or integral multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest or additional
interest (as required by the Exchange and Registration Rights Agreement)
on any Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal or
premium, if any, on any Security when the same becomes due and payable at
its Stated Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with
Article IV or Section 10.2 of this Indenture;
(4) the Company fails to comply with any of Section 3.3, Section
3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and Section 3.12
(in each case other than a failure to repurchase Securities when required
pursuant to Section 3.6, which failure shall constitute an Event of
Default under Section 6.1(2)) and such failure continues for 30 days after
written notice from the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities;
(5) the Company defaults in the performance of or a breach by the
Company of any other covenant or agreement in this Indenture or under the
Securities (other than those referred to in (1), (2), (3) or (4) above)
and such default continues for 60 days after
41
written notice from the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities;
(6) there is a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be outstanding, or
by which there may be secured or evidenced any Debt for money borrowed by
the Company or any of its Subsidiaries (other than Non-Recourse Debt of a
Non-Recourse Subsidiary), whether such Debt now exists, or is created
after the date of this Indenture, which default (a) is caused by a failure
to pay principal of, or interest or premium, if any, on such Debt prior to
the expiration of the grace period provided in such Debt ("Payment
Default") or (b) results in the acceleration of such Debt prior to its
maturity (the "cross acceleration provision") and, in each case, the
principal amount of any such Debt, together with the principal amount of
any other such Debt under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $20.0 million or
more or its foreign currency equivalent at the time and such acceleration
shall not have been rescinded or annulled within 10 days after written
notice of such acceleration has been received by the Company or such
Subsidiary;
(7) the Company pursuant to or within the meaning of any
Bankruptcy Law (as defined below):
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian (as defined
below) of it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case;
(B) appoints a Custodian of the Company for all or
substantially all of the Company's property; or
(C) orders the winding up or liquidation of the Company; and
in each case the order or decree remains unstayed and in effect for 90
days; or
(9) there has been entered in a court of competent jurisdiction a
final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by
insurance or not discharged or stayed within 90 days after (A) the date on
which the right to appeal thereof has expired if no
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such appeal has commenced, or (B) the date on which all rights to appeal
have been extinguished.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default or Event of Default under clauses (3), (4), (5), (6), (7), (8) or
(9) of this Section 6.1, which such notice shall contain the status thereof and
a description of the action being taken or proposed to be taken by the Company
in respect thereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in outstanding principal amount of the Securities by notice to the Company and
the Trustee, may, and the Trustee at the request of such Holders shall, declare
the principal of, premium, if any, and accrued and unpaid interest, on all the
Securities to be due and payable. Upon such a declaration, such principal,
premium, if any, and accrued and unpaid interest shall be immediately due and
payable.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of (or premium, if any) or interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may (a)
waive, by their consent (including, without limitation consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities), an existing Default or Event of Default and its consequences except
(i) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on a Security or (ii) a Default or Event of Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected and (b) rescind any such acceleration
with respect to the Securities and its consequences if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(2) all existing Events of Default, other than the nonpayment of the principal
of, premium, if any, and
43
interest on the Securities that have become due solely by such declaration of
acceleration, have been cured or waived. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
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 or,
subject to Section 7.1 and Section 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in outstanding principal amount of
the Securities make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture (including, without limitation, Section
6.6), the right of any Holder to receive payment of principal of, premium (if
any) or interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing
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(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective
creditors or properties and, unless prohibited by law or applicable regulations,
may be entitled and empowered to participate as a member of any official
committee of creditors appointed in such matter and, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a
suit by Holders of more than 10% in outstanding principal amount of the
Securities.
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ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs; provided that if an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against loss, liability or expense.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
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(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) 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 Section and to the provisions of the TIA.
(i) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(j) 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 satisfactory to it against the costs, expenses
(including reasonable attorneys' fees and expenses) and liabilities that might
be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1, (a) The
Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document. The Trustee shall receive and retain financial
reports and statements of the Company as provided herein, but shall have no duty
to review or analyze such reports or statements to determine compliance under
covenants or other obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers, provided however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying
47
Agent, Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Section 7.10 and Section 7.11. In
addition, the Trustee shall be permitted to engage in transactions with the
Company; provided, however, that if the Trustee acquires any conflicting
interest the Trustee must (i) eliminate such conflict within 90 days of
acquiring such conflicting interest, (ii) apply to the Commission for permission
to continue acting as Trustee or (iii) resign.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, shall not be accountable for the Company's use
of the proceeds from the Securities, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if a Trust Officer has actual knowledge thereof,
the Trustee shall mail by first class mail to each Securityholder at the address
set forth in the Note Register notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium (if any), or interest on any Security
(including payments pursuant to the optional redemption or required repurchase
provisions of such Security, if any), the Trustee may withhold the notice if and
so long as its board of directors, a committee of its board of directors or a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days after
each May 15, beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b). The Trustee shall also transmit by mail all reports required by
TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
48
indemnify the Trustee against any and all loss, liability, damages, claims or
expense (including reasonable attorneys' fees and expenses) incurred by it
without negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.7) and of defending itself against any claims (whether asserted by any
Securityholder, the Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel,
provided that the Company shall not be required to pay such fees and expenses if
it assumes the Trustee's defense, and, in the reasonable judgment of outside
counsel to the Trustee, there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or Debt of the Company.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition, at the Company's
expense, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
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SECTION 7.12. Trustee's Application for Instruction from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a)
Subject to Section 8.1(c), when (i)(x) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.9)
for cancellation or (y) all outstanding Securities not theretofore delivered for
cancellation have become due and payable, whether at maturity or upon redemption
or will become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name and at the expense
of the Company and the Company or any Subsidiary Guarantor irrevocably deposits
or causes to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders money in U.S. dollars, non-callable U.S. Government
Securities, or a combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the
date of maturity or redemption, (ii) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the Company or
any Subsidiary Guarantor is a party or by which the Company or any Subsidiary
Guarantor is bound; (iii) the Company or any Subsidiary Guarantor has paid or
caused to be paid all sums payable by it under this Indenture and the
Securities; and (iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
such Securities at maturity or the Redemption Date, as the case may be, then the
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company (accompanied by an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with) and at the
cost and expense of the Company.
(b) Subject to Sections 8.1(c) and Section 8.2, the Company at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option"), and after giving effect to such legal
defeasance, any omission to comply with such obligations shall no longer
constitute a Default or Event of Default or (ii) its obligations under Section
3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and Section
3.12, and
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the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under
Section 6.1(4), and the operation of Sections 6.1(5), 6.1(6), and 6.1(9) and the
events specified in such Sections shall no longer constitute an Event of Default
(clause (ii) being referred to as the "covenant defeasance option"), but except
as specified above, the remainder of this Indenture and the Securities shall be
unaffected thereby. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If the
Company exercises its covenant defeasance option, the Company may elect to have
any Subsidiary Guarantees in effect at such time terminate.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default, and the
Subsidiary Guarantees in effect at such time shall terminate. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.1(4) (as such
Section relates to Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section
3.7, Section 3.8 and Section 3.12), Section 6.1(5), 6.1(6) or 6.1(9).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Section 8.1(a) and (b), the
Company's obligations in Section 2.2, Section 2.3, Section 2.4, Section 2.5,
Section 2.6, Section 2.9, Section 2.10, Section 2.11, Section 2.12, Section 3.1,
Section 3.9, Section 3.10, Section 3.11, Section 3.13, Section 3.14, Section
3.15, Section 6.7, Section 7.7, Section 7.8 and in this Article 8 shall survive
until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee for
the benefit of the Holders money in U.S. dollars or U.S. Government
Securities or a combination thereof for the payment of principal, premium,
if any, and interest on the Securities to maturity or redemption, as the
case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Securities plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity;
52
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with respect to certain
bankruptcy or insolvency Events of Default, on the 91st day after such
date of deposit;
(4) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default under, this Indenture
or any other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the effect
that (A) the Securities and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the deposit
and that no Holder of the Securities is an insider of the Company, after
the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' right generally;
(6) the deposit does not constitute a default under any other
agreement binding on the Company;
(7) the Company delivers to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) to the effect that the
trust resulting from the deposit does not constitute, or is qualified as,
a regulated investment company under the Investment Company Act of 1940;
(8) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such legal defeasance had
not occurred;
(9) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) in the United States to the effect
that the Securityholders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred; and
(10) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and
53
discharge of the Securities and this Indenture as contemplated by this
Article VIII have been complied with.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Securities deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Securities through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.4. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them upon payment of all the obligations under this
Indenture.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal of or interest on the Securities that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.5. Indemnity for U.S. Government Securities. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Securities or the
principal and interest received on such U.S. Government Securities.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Securities in accordance with this Article
VIII 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 obligations of the Company under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Securities in accordance with this Article VIII; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Securities held by the Trustee or Paying Agent.
The Trustee's rights under this Article VIII shall survive
termination of this Indenture.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company, the Subsidiary Guarantors
and the Trustee may amend this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
54
(2) to comply with Article IV in respect of the assumption by a
Successor Company of an obligation of the Company under this Indenture;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(7) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(8) to make any change that does not materially adversely affect
the rights of any Securityholder; or
(9) to provide for the issuance of the Exchange Securities, which
will have terms substantially identical in all material respects to the
Initial Securities (except that the transfer restrictions contained in the
Initial Securities will be modified or eliminated, as appropriate), and
which will be treated, together with any outstanding Initial Securities,
as a single issue of securities.
SECTION 9.2. With Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities). However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the stated rate of or extend the stated time for
payment of interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption or repurchase
of any Security or change the time at which any Security may or shall be
redeemed or repurchased as described above under Section 3.6 (including an
amendment to the definition of "Change of Control") or Article V or any
similar provision, whether through an amendment to or waiver of Section
3.6 or Article V, a definition or otherwise;
55
(5) make any Security payable in money other than that stated in
the Security or, other than in accordance with the provisions of this
Indenture in effect on the Issue Date, eliminate any existing Guarantee of
the Securities;
(6) impair the right of any Holder to receive payment of principal
of, premium, if any, and interest on such Holder's Securities on or after
the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities; or
(7) make any change to the amendment provisions which require each
Holder's consent or to the waiver provisions.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective or
otherwise in accordance with any related solicitation documents. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.1 or 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the
56
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity of
such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Sections 7.1 and 7.2) shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture and that such
amendment is the legal, valid and binding obligation of the Company and any
Guarantors, enforceable against them in accordance with its terms, subject to
customary exceptions and complies with the provisions hereof (including Section
9.3).
ARTICLE X
Subsidiary Guarantee
SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor hereby
fully, unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, jointly and severally with each other Subsidiary Guarantor, to
each Holder of the Securities and the Trustee the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the
principal of, premium, if any, and interest on the Securities and all other
obligations of the Company under this Indenture (all the foregoing being
hereinafter collectively called the "Obligations"). Each Subsidiary Guarantor
further agrees (to the extent permitted by law) that the Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
it, and that it will remain bound under this Article X notwithstanding any
extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of payment
from and protest to the Company of any of the Obligations and also waives notice
of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (f) any change in the ownership of
the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a Guarantee of payment when due (and not a
Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
57
The obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than payment of the Obligations in full), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder to assert any claim or demand or
to enforce any remedy under this Indenture, the Securities or any other
agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of any Subsidiary
Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor
as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any of the Obligations is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder has at law or in equity against any Subsidiary Guarantor
by virtue hereof, upon the failure of the Company to pay any of the Obligations
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid
amount of such Obligations then due and owing and (ii) accrued and unpaid
interest on such Obligations then due and owing (but only to the extent not
prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (y) in the
event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary
Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all reasonable
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release and
Discharge Upon Merger or Consolidation. The obligations of each Subsidiary
Guarantor hereunder will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including, without limitation, any guarantees under the Senior Credit
Agreement and the 2006 Notes) and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of
58
such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.
Each Subsidiary Guarantor may consolidate with or merge into or sell
its assets to the Company or another Subsidiary Guarantor without limitation.
Subject to Article III and Article IV, each Subsidiary Guarantor may consolidate
with or merge into or sell all or substantially all its assets to a corporation,
partnership or trust other than the Company or another Subsidiary Guarantor
(whether or not affiliated with the Subsidiary Guarantor), except that if the
surviving corporation of any such merger or consolidation is a Subsidiary of the
Company, such merger, consolidation or sale shall not be permitted unless (i)
the Person formed by or surviving any such consolidation or merger assumes all
the obligations of such Subsidiary under the Subsidiary Guarantee pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee in respect of the Securities, this Indenture and the Subsidiary
Guarantee, (ii) immediately after giving effect to such transaction, no Default
or Event of Default exists; and (iii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Trustee with
respect to the foregoing matters. Upon the sale or disposition of a Subsidiary
Guarantor (by merger, consolidation, the sale of its Capital Stock or the sale
of all or substantially all of its assets (other than by lease)) and whether or
not the Subsidiary Guarantor is the surviving corporation in such transaction to
a Person (whether or not an Affiliate of the Subsidiary Guarantor) which is not
the Company or a Subsidiary of the Company, which sale or disposition is
otherwise in compliance with this Indenture, such Subsidiary Guarantor will be
released from all its obligations under this Indenture and its Subsidiary
Guarantee and such Subsidiary Guarantee will terminate; provided, however, that
any such termination will occur only to the extent that (x) with respect to each
Subsidiary Guarantor other than MCA, each such Subsidiary Guarantor will be
released from obligations under its Subsidiary Guarantee if all the obligations
of such Subsidiary Guarantor under the Senior Credit Agreement, the 2006 Notes
and related documentation terminate upon consummation of such transaction and
(y) with respect to MCA, MCA will be released from its obligations under its
Subsidiary Guarantee if the Company and its remaining Subsidiaries are not
liable with respect to any Debt of MCA.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that any Subsidiary Guarantor shall have paid
more than its proportionate share of any payment made on the obligations under
the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek
and receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. The
provisions of this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each
Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the
full amount guaranteed by such Subsidiary Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or
payments made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor
shall be entitled to be subrogated to any of the rights of the Trustee or any
Holder against the Company or any other Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by the Trustee
59
or any Holder for the payment of the Obligations, nor shall any Subsidiary
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Company or any other Subsidiary Guarantor in respect of payments made by such
Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and the
Holders by the Company on account of the Obligations are paid in full. If any
amount shall be paid to any Subsidiary Guarantor on account of such subrogation
rights at any time when all of the Obligations shall not have been paid in full,
such amount shall be held by such Subsidiary Guarantor in trust for the Trustee
and the Holders, segregated from other funds of such Subsidiary Guarantor, and
shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over to
the Trustee in the exact form received by such Subsidiary Guarantor (duly
indorsed by such Subsidiary Guarantor to the Trustee, if required), to be
applied against the Obligations.
ARTICLE XI
Miscellaneous
SECTION 11.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. Each Subsidiary Guarantor in addition to performing its
obligations under its Subsidiary Guarantee shall perform such other obligations
as may be imposed upon it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Manor Care, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxx Xxxxxx, Chief Executive Officer
With a copy to:
Xxxxxx & Xxxxxxx
Sears Tower, Suite 5800
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
if to the Trustee:
National City Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Department
Locator 01-3116
60
With a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
For purposes of Section 2.3 (with respect to presentation of
Securities for payment or for registrations of transfer or exchange) if to the
Trustee: National City Bank, c/o Mellon Securities Trust Company, 000 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Securityholder
shall be mailed to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.
SECTION 11.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) 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
(2) 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 11.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
61
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
SECTION 11.6. When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by, or a meeting of, Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required to
be closed in New York City or Cleveland, Ohio. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.10. No Recourse Against Others. An incorporator, director,
officer, employee, affiliate or stockholder of the Company or any Subsidiary
Guarantor, solely by reason of this status, shall not have any liability for any
obligations of the Company under the Securities, this Indenture or the
Subsidiary Guarantees or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
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SECTION 11.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple 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. One signed copy is enough to prove
this Indenture.
SECTION 11.13. Variable Provisions. The Company initially appoints
the Trustee as Paying Agent and Registrar and custodian with respect to any
Global Securities.
SECTION 11.14. Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Exchange and Registration Rights Agreement and shall pay all reasonable costs
and expenses (including attorneys' fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the
Securities and printing this Indenture and the Securities. The Trustee shall be
entitled to receive from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the TIA.
SECTION 11.15. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
63
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
MANOR CARE, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
64
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
ARCHIVE ACQUISITION, INC.
ARCHIVE RETRIEVAL SYSTEMS, INC.
XXXXX NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
XXXXXXX XXXXX, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
XXXXXXX MANOR, INC.
65
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR ACQUISITION CORPORATION
HCR HOME HEALTH CARE AND HOSPICE, INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES, INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT CORPORATION
OF AMERICA
HEALTHCARE CONSTRUCTION CORP.
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE SERVICES,
INC.
66
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND MANAGEMENT SERVICES, INC.
HEARTLAND MEDICAL INFORMATION SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES, INC.
HEARTLAND SERVICES CORP.
XXXXXXX XXXXXX, RPT - XXXX XXXXXXXX,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
LEADER NURSING AND REHABILITATION
CENTER OF BETHEL PARK, INC.
LEADER NURSING AND REHABILITATION
CENTER OF GLOUCESTER, INC.
LEADER NURSING AND REHABILITATION
CENTER OF XXXXX TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION
CENTER OF VIRGINIA INC.
67
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE MANAGEMENT CORPORATION
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, INC
MANOR CARE OF ARIZONA, INC.
MANOR CARE OF ARLINGTON, INC.
MANOR CARE OF BOCA RATON, INC.
MANOR CARE OF BOYNTON BEACH, INC.
MANOR CARE OF CANTON, INC.
MANOR CARE OF CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, INC.
MANOR CARE OF HINSDALE, INC.
MANOR CARE OF KANSAS, INC.
MANOR CARE OF KINGSTON COURT, INC.
MANOR CARE OF LARGO, INC.
MANOR CARE OF LEXINGTON, INC.
68
MANOR CARE OF MEADOW PARK, INC.
MANOR CARE OF MIAMISBURG, INC
MANOR CARE OF NORTH XXXXXXXX, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
MANOR CARE OF ROLLING XXXXXXX, INC.
MANOR CARE OF ROSSVILLE, INC.
MANOR CARE OF SARASOTA, INC.
MANOR CARE OF XXXXXXXXXX, INC.
MANOR CARE OF WILMINGTON, INC.
MANOR CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANOR LIVING CENTERS, INC.
MANORCARE HEALTH SERVICES OF BOYNTON
BEACH, INC.
MANORCARE HEALTH SERVICES OF GEORGIA,
INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF VIRGINIA,
INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MCHS OF NEW YORK, INC.
69
MEDICAL AID TRAINING SCHOOLS, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY ASSOCIATES,
INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES, INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
MRS, INC.
NEW MANORCARE HEALTH SERVICES, INC.
NUVISTA REFRACTIVE SURGERY AND LASER
CENTERS, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL, OCCUPATIONAL, AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
70
REHABILITATION SERVICES OF ROANOKE, INC.
XXXXXXXX & XXXXXX, INC.
XXXXXXXX HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
XXXXXX PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING HOME,
INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES, INC.
VISION MANAGEMENT SERVICES, INC.
WASHTENAW HILLS MANOR, INC.
71
WHITEHALL MANOR, INC.
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary of each of the
above-referenced corporations.
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
72
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc.,
its sole member
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
73
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services,
Inc., its sole member
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
74
BATH ARDEN, LLC
XXXXXX XXXXXX OF XXXXXXXX, LLC
XXXXXX XXXXXX OF AUSTIN, LLC
XXXXXX XXXXXX OF KENWOOD, LLC
XXXXXX XXXXXX OF SAN ANTONIO, LLC
XXXXXX XXXXXX OF SUSQUEHANNA, LLC
XXXXXX XXXXXX OF WARMINSTER, LLC
XXXXXXX SPRINGHOUSE, LLC
FRESNO ARDEN, LLC
LAKE ZURICH ARDEN, LLC
MESQUITE HOSPITAL, LLC
METUCHEN ARDEN, LLC
MIDDLETOWN ARDEN, LLC
XXXXXX XXXXX, LLC
MOORESTOWN ARDEN, LLC
OVERLAND PARK ARDEN, LLC
OVERLAND PARK SKILLED NURSING, LLC
ROCKFORD ARDEN, LLC
ROCKLEIGH ARDEN, LLC
TOM'S RIVER ARDEN, LLC
TUSCAWILLA ARDEN, LLC
XXXXX XXXXX, LLC
XXXXX SPRINGHOUSE, LLC
WEST DEPTFORD ARDEN, LLC
WEST ORANGE ARDEN, LLC
WEST ORANGE SPRINGHOUSE, LLC
75
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
76
ALBUQUERQUE ARDEN, LLC
ANNANDALE ARDEN, LLC
XXXXXXXXXX XXXXX, LLC
XXXXXXX FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS ARDEN, LLC
FIRST LOUISVILLE ARDEN, LLC
XXXXXX XXXXX, LLC
HANOVER ARDEN, LLC
XXXXXXXXX XXXXX, LLC
KANSAS SKILLED NURSING, LLC
KENWOOD ARDEN, LLC
LAURELDALE ARDEN, LLC
LEXINGTON ARDEN, LLC
XXXXXXX XXXXX, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
NASHVILLE ARDEN, LLC
NISHAYUNA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN XXXXXXX XXXXX, LLC
SECOND LOUISVILLE ARDEN, LLC
77
SETAUKET ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
XXXXXX XXXXX, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WEST WINDSOR ARDEN, LLC
XXXXXXXX VILLE XXXXX, LLC
By: Manor Care of America, Inc., its
sole member
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
78
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation,
its general partner
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
79
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation,
its general partner
By: /s/ R. Xxxxxxx Xxxxxx
-----------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
80
HCR MANOR CARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its
general partner
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No. 000-000-0000
Telephone: 000-000-0000
81
NATIONAL CITY BANK, as Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
82
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. [___] Principal Amount $[_____________], as
revised by the Schedule of Increases and Decreases in Global Security attached
hereto
CUSIP NO. _______________
ISIN: _______________
8% Senior Notes due 2008
Manor Care, Inc., a Delaware corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Additional provisions of this Security are set forth on the other
side of this Security.
MANOR CARE, INC.
By:
---------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
Authorized Signatory Date: [________] __, 2001
A-1
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
8% Senior Note due 2008
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.
The Company will pay interest semiannually on March 1 and September
1 of each year commencing September 1, 2001. Interest on the Securities will
accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from March 8, 2001. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal, premium, if any, and/or interest. The Company will pay interest
(except Defaulted Interest) to the Persons who are registered Holders of
Securities at the close of business on the February 15 or August 15 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Except as described in the succeeding two sentences, the
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of the Indenture; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. Payments in respect of Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. Payments in respect of Securities
represented by Definitive Securities (including principal, premium, if any, and
interest) held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
A-2
3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee"), will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
March 8, 2001 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company limited to $200.0 million aggregate principal amount (subject to Section
2.9 of the Indenture). This Security is one of the Original Securities (also
referred to as Initial Securities) referred to in the Indenture. The Initial
Securities, Private Exchange Securities and the Exchange Securities will be
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on, among other things: the Incurrence of Liens by
the Company or its Subsidiaries, Sale and Lease-Back Transactions by the Company
or its Subsidiaries, consolidation, mergers and sale of assets of the Company,
and transactions with Affiliates.
To guarantee the due and punctual payment of the principal, premium,
if any, and interest on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors, together with the
Subsidiary Guarantors, will unconditionally guarantee), jointly and severally,
such obligations on a senior basis pursuant to the terms of the Indenture.
5. Redemption
A-3
The Securities will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, on at least 30 days but not more
than 60 days' prior notice mailed to the registered address of each Holder of
Securities to be so redeemed, at a redemption price equal to the greater of (i)
100% of their principal amount plus accrued but unpaid interest to the date of
redemption or (ii) the sum of (a) the present values of the remaining scheduled
payments of principal and interest thereon from the date of redemption to the
date of maturity (except for currently accrued but unpaid interest) discounted
to the date of redemption, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury Rate (as defined below),
plus 50 basis points, plus (b) accrued but unpaid interest to the date of
redemption.
For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, (i) as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York or published on the website of the Federal Reserve Bank of New
York at xxxx://xxx.xx.xxx.xxx and designated "Composite 3:30 p.m. Quotations for
the U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business day,
the average of the Reference Treasury Dealer Quotations for such redemption
date.
"Independent Investment Banker" means the Reference Treasury Dealer
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means JPMorgan, a division of Chase
Securities Inc. ("JPMorgan"), and its successors; provided, however, that if
JPMorgan shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
In the case of any partial redemption, selection of the Securities
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed, then on a pro rata basis, by
lot or by such other method as the Trustee in its sole discretion shall deem to
be fair and appropriate, although no Securities of $1,000 in original principal
amount or less will be redeemed in part. If any Security is to be redeemed in
part only, the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after
A-4
the redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event, any
Holder of Securities will have the right to cause the Company to offer to
repurchase all or any part of the Securities of such Holder at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) as provided in, and subject to the terms of, the
Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
A-5
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest when due on the Securities; (ii) default in payment
of principal or premium, if any, on the Securities at Stated Maturity, upon
required repurchase or upon optional redemption pursuant to paragraph 5 of the
Securities, upon declaration or otherwise; (iii) the failure by the Company or
any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
A-6
90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default or
Event of Default (except a Default or Event of Default in payment of principal
or interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, affiliate or
stockholder, of each of the Company, or any Subsidiary Guarantor, solely by
reason of this status, shall not have any liability for any obligations of the
Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
A-7
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxx, Chief Financial Officer
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
---------------------------------------------------------
(Print or type assignee's name, address and zip code)
---------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
-------------------- -----------------------
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[ ] 1 acquired for the undersigned's own account, without transfer;
or
[ ] 2 transferred to the Company; or
[ ] 3 transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
[ ] 4 transferred pursuant to an effective registration statement
under the Securities Act; or
[ ] 5 transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
A-9
[ ] 6 transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter appears as Section 2.7 of the Indenture);
or
[ ] 7 transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request 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 of 1933, such as the exemption provided by
Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:
------------------------------ ------------------------------
(Signature must be guaranteed) Signature
--------------------------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
---------------------------------------
Dated:
A-10
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Signature of
Amount of Amount of Amount of this authorized
decrease in increase in Global Security signatory of
Principal Principal following Trustee or
Date of Amount of this Amount of this such decrease Securities
Exchange Global Security Global Security or increase Custodian
-------- --------------- --------------- --------------- -------------
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 3.6 of the Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $
Date: Your Signature
---------- ------------------------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
A-12
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Depository Legend, if applicable]
No. [_____] Principal Amount $[____________],
as revised by the Schedule of
Increases and Decreases in Global
Security attached hereto
CUSIP NO. _______________
ISIN: _______________
8% Series B Senior Notes due 2008
Manor Care, Inc., a Delaware corporation, promises to pay to
[______________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Additional provisions of this Security are set forth on the other
side of this Security.
MANOR CARE, INC.
By:______________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK,
as Trustee, certifies
that this is one of the
Securities referred to
in the Indenture.
By:
Authorized Signatory Date: ____________________
B-1
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
8% Series B Senior Notes due 2008
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.
The Company will pay interest semiannually on March 1 and September
1 of each year commencing September 1, 2001. Interest on the Securities will
accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from March 8, 2001. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal, premium, if any, and/or interest. The Company will pay interest
(except Defaulted Interest) to the Persons who are registered Holders of
Securities at the close of business on the February 15 or August 15 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Except as described in the succeeding two sentences, the
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of the Indenture; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. Payments in respect of Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. Payments in respect of Securities
represented by Definitive Securities (including principal, premium, if any, and
interest) held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
B-2
3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee"), will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
March 8, 2001 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company limited to $200.0 million aggregate principal amount (subject to Section
2.9 of the Indenture). The Initial Securities, Private Exchange Securities and
the Exchange Securities will be treated as a single class of securities under
the Indenture. The Indenture imposes certain limitations on, among other things:
the Incurrence of Liens by the Company or its Subsidiaries, Sale and Lease-Back
Transactions by the Company or its Subsidiaries, consolidation, mergers and sale
of assets of the Company, and transactions with Affiliates
To guarantee the due and punctual payment of the principal, premium,
if any, and interest on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors, together with the
Subsidiary Guarantors, will unconditionally guarantee), jointly and severally,
such obligations on a senior basis pursuant to the terms of the Indenture.
5. Redemption
The Securities will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, on at least 30 days but not more
than 60 days' prior notice mailed to the registered address of each Holder of
Securities to be so redeemed, at a redemption price equal to the greater of (i)
100% of their principal amount plus accrued but unpaid interest to the date of
redemption or (ii) the sum of (a) the present values of the remaining scheduled
payments of principal and interest thereon from the date of redemption to the
date of maturity (except for currently accrued but unpaid interest) discounted
to the date of redemption, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury Rate (as defined below),
plus 50 basis points, plus (b) accrued but unpaid interest to the date of
redemption.
B-3
For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, (i) as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York or published on the website of the Federal Reserve Bank of New
York at xxxx://xxx.xx.xxx.xxx and designated "Composite 3:30 p.m. Quotations for
the U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business day,
the average of the Reference Treasury Dealer Quotations for such redemption
date.
"Independent Investment Banker" means the Reference Treasury Dealer
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means JPMorgan, a division of Chase
Securities Inc. ("JPMorgan"), and its successors; provided, however, that if
JPMorgan shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
In the case of any partial redemption, selection of the Securities
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed, then on a pro rata basis, by
lot or by such other method as the Trustee in its sole discretion shall deem to
be fair and appropriate, although no Securities of $1,000 in original principal
amount or less will be redeemed in part. If any Security is to be redeemed in
part only, the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after
B-4
the redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event, any
Holder of Securities will have the right to cause the Company to offer to
repurchase all or any part of the Securities of such Holder at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) as provided in, and subject to the terms of, the
Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
B-5
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest when due on the Securities; (ii) default in payment
of principal or premium, if any, on the Securities at Stated Maturity, upon
required repurchase or upon optional redemption pursuant to paragraph 5 of the
Securities, upon declaration or otherwise; (iii) the failure by the Company or
any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
B-6
90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default or
Event of Default (except a Default or Event of Default in payment of principal
or interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, affiliate or
stockholder of each of the Company, or any Subsidiary Guarantor, solely by
reason of this status, shall not have any liability for any obligations of the
Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
B-7
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxx, Chief Financial Officer
B-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature
---------------- ------------------------------------------
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-9
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Signature of
Amount of Amount of Amount of this authorized
decrease in increase in Global Security signatory of
Principal Principal following Trustee or
Date of Amount of this Amount of this such decrease Securities
Exchange Global Security Global Security or increase Custodian
-------- --------------- --------------- --------------- ------------
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security purchased by
the Company pursuant to or Section 3.6 of the Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $
Date: Your Signature:
---------------- -----------------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-11
EXHIBIT C
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Manor Care, Inc. (together with its successors and
assigns, the "Company"), each other then existing Subsidiary Guarantor under the
Indenture referred to below, and National City Bank, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of March 8, 2001 (as
amended, supplemented, waived or otherwise modified, the "Indenture"), providing
for the issuance of an aggregate principal amount of $200.0 million of 8% Senior
Notes due 2008 of the Company (the "Securities");
WHEREAS, Section 3.8 of the Indenture provides that the Company is
required to cause each Subsidiary (other than a Subsidiary that does not
guarantee obligations under the 2006 Notes) created or acquired by the Company
or one or more of its Subsidiaries or any Subsidiary that Guarantees the payment
of Debt of the Company to execute and deliver to the Trustee a Supplemental
Indenture pursuant to which such Subsidiary will unconditionally Guarantee, on a
joint and several basis with the other Subsidiary Guarantors, the full and
prompt payment of the principal of, premium, if any, and interest on the
Securities on a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company, the other Subsidiary Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
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ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1. Agreement to be Bound. The Guarantor hereby becomes a
party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2. Guarantee. The Guarantor fully, unconditionally and
irrevocably Guarantees to each Holder of the Securities and the Trustee the
Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at its
address set forth below, with a copy to the Company as provided in the Indenture
for notices to the Company.
SECTION 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3. Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 3.4. Severability 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 and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5. Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.6. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
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SECTION 3.7. Headings. The headings of the Articles and the sections
in this Guarantee are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
as a Subsidiary Guarantor
By:
---------------------------------------
Name:
Title:
NATIONAL CITY BANK, as Trustee
By:
---------------------------------------
Name:
Title:
MANOR CARE, INC.
By:
---------------------------------------
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:
---------------------------------------
Name:
Title:
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