Exhibit 4.2
================================================================================
PROVINCE HEALTHCARE COMPANY
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
7 1/2% Senior Subordinated Notes due 2013
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 27, 2003
TO
SUBORDINATED INDENTURE
Dated as of May 27, 2003
================================================================================
TABLE OF CONTENTS
Page
----
Article I. DEFINITIONS.................................................................. 1
Section 1.1. DEFINITIONS........................................................... 1
Article II. FORM AND TERMS OF THE NOTES................................................. 14
Section 2.1. FORM AND DATING....................................................... 14
Section 2.2. EXECUTION AND AUTHENTICATION.......................................... 15
Section 2.3. DEPOSITORY AND PAYING AGENT FOR NOTES................................. 15
Section 2.4. TRANSFER AND EXCHANGE OF NOTES........................................ 15
Section 2.5. REDEMPTION............................................................ 16
Section 2.6. COVENANTS............................................................. 17
Section 2.7. SUCCESSORS............................................................ 33
Section 2.8. DEFAULTS AND REMEDIES................................................. 35
Section 2.9. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.............................. 37
Section 2.10. AMENDMENTS............................................................ 39
Section 2.11. SUBSIDIARY GUARANTEES................................................. 42
Section 2.12. SUBORDINATION......................................................... 42
Article III. MISCELLANEOUS.............................................................. 42
Section 3.1. EFFECT OF HEADINGS.................................................... 42
Section 3.2. SUCCESSORS AND ASSIGNS................................................ 42
Section 3.3. SEPARABILITY CLAUSE................................................... 42
Section 3.4. GOVERNING LAW......................................................... 43
Section 3.5. FIRST SUPPLEMENT TO SUPERSEDE BASE INDENTURE.......................... 43
EXHIBITS
Exhibit A FORM OF NOTES
Exhibit B FORM OF SUPPLEMENTAL INDENTURE
i
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of May 27, 2003
("First Supplemental Indenture"), is by and between PROVINCE HEALTHCARE COMPANY,
a Delaware corporation (the "Company"), having its principal office at 000
Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxxx 00000, and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States of America, as trustee (the "Trustee"), having its
principal corporate trust office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000.
WITNESSETH:
WHEREAS, the Company and U.S. Bank Trust National Association,
acting as trustee, executed and delivered a Subordinated Indenture, dated as of
May 27, 2003 (the "Base Indenture," and, as supplemented by this First
Supplemental Indenture, the "Indenture"), to provide for the issuance by the
Company from time to time of Securities to be issued in one or more series as
provided in the Base Indenture;
WHEREAS, the issuance and sale of up to $200,000,000 aggregate
principal amount of a series of the Company's Securities (the "Notes") have been
authorized by resolutions adopted by the Board of Directors of the Company on
May 1, 2003 and May 21, 2003;
WHEREAS, the Company desires to issue and sell $200,000,000
aggregate principal amount of the Notes on the date hereof;
WHEREAS, the Company desires to enter into this First
Supplemental Indenture pursuant to Section 2.2 of the Base Indenture to
supplement the Base Indenture to establish the form and terms of the Notes; and
NOW, THEREFORE, for and in consideration of the premises
stated herein and the purchase of the Notes by the Holders thereof, the parties
hereto hereby enter into this First Supplemental Indenture, for the equal and
proportionate benefit of all Holders of Notes, as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS.
(a) All of the terms used in this First Supplemental
Indenture which are defined in the Base Indenture shall have the meanings
specified in the Base Indenture, unless otherwise defined herein (in which case
they shall have the meanings defined herein for the purposes of the Base
Indenture as well as for the First Supplemental Indenture) or unless the context
otherwise requires, and for the purposes of this First Supplemental Indenture,
the following terms have the meanings set forth in this Section:
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person becomes a Restricted Subsidiary or is merged
into or consolidated with the
Company or any of its Restricted Subsidiaries or (b) assumed in connection with
the acquisition of assets from such Person, in each case other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition, as the case may be. Acquired
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary.
"Additional Notes" means such amount of the Company's 7 1/2%
Senior Subordinated Notes due 2013 (other than the Initial Notes) as the Company
may issue from time to time under the Indenture in accordance with Section 2.2
hereof as part of the same series as the Initial Notes.
"Agent Members" means members of, or participants in, the
Depository.
"Asset Sale" means any sale, issuance, conveyance, transfer,
assignment, lease or other disposition (including, without limitation, by way of
merger, consolidation or sale and leaseback transaction) (collectively, a
"transfer"), directly or indirectly, in one transaction or a series of related
transactions, of (a) any Capital Stock of any Restricted Subsidiary, (b) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary, or (c) any other
properties or assets of the Company or any Restricted Subsidiary other than in
the ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include any transfer of properties or assets (i) that is
governed by the provisions of Section 5.1 of the Indenture, (ii) by the Company
to any wholly owned Restricted Subsidiary, or by any Restricted Subsidiary to
the Company or any wholly owned Restricted Subsidiary in accordance with the
terms hereof, (iii) pursuant to a Hospital Swap, (iv) with an aggregate Fair
Market Value of less than $10,000,000, (v) that are obsolete, damaged or worn
out equipment or inventory that is no longer useful in the conduct of the
Company's or its Subsidiaries' business and that is disposed of in the ordinary
course of business, or constituting a Restricted Payment that is permitted to be
made, and is made, in compliance with Section 4.8 of the Indenture.
"Average Life" means, as of the date of determination with
respect to any Indebtedness, the quotient obtained by dividing (a) the sum of
the products of (i) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(ii) the amount of each such principal payment by (b) the sum of all such
principal payments.
"Change in Control" means the occurrence of any of the
following events: (a) any "person" or "group" (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
a Person shall be deemed to have "beneficial ownership" of all securities that
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 35% of the total outstanding Voting Stock of the Company; (b) the Company
consolidates with, or merges with or into, another Person or conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
Person, or any Person consolidates with, or merges with or into, the Company, in
any such
2
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction (i) where the outstanding Voting Stock of the
Company is not converted or exchanged at all (except to the extent necessary to
reflect a change in the jurisdiction of incorporation of the Company) or is
converted into or exchanged for (A) Voting Stock (other than Redeemable Capital
Stock) of the surviving or transferee corporation and/or (B) cash, securities
and other property (other than Capital Stock of the surviving or transferee
corporation) in an amount that could be paid by the Company as a Restricted
Payment as described under, or is otherwise not prohibited by, Section 4.8 of
the Indenture and (ii) immediately after such transaction, no "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total outstanding Voting Stock
of the surviving or transferee corporation; (c) during any consecutive two year
period, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election to such
Board of Directors, or whose nomination for election by the stockholders of the
Company, was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office; or (d) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which complies with the
provisions described under Section 5.1 of the Indenture.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto), (b) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) the net
income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary is
not at the date of determination permitted, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such Restricted
Subsidiary or its stockholders and (e) for purposes of calculating Consolidated
Adjusted Net Income under Section 4.8 of the Indenture any net income (or loss)
from any Restricted Subsidiary while it was an Unrestricted Subsidiary at any
time during such period other than any amounts actually received from such
Restricted Subsidiary during such period.
"Consolidated EBITDA" of the Company means, for any period,
the sum of Consolidated Adjusted Net Income and, to the extent deducted in
computing Consolidated Adjusted Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and
3
Consolidated Non-Cash Charges, less all non-cash items increasing Consolidated
Adjusted Net Income, in each case, for such period.
"Consolidated Fixed Charge Coverage Ratio" of the Company
means, for any period, the ratio of (a) the sum of Consolidated Adjusted Net
Income and, to the extent deducted in computing Consolidated Adjusted Net
Income, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-Cash Charges, less all non-cash items increasing Consolidated
Adjusted Net Income, in each case, for such period to (b) the sum of (i)
Consolidated Interest Expense, (ii) cash dividends due (whether or not declared)
on Preferred Stock of the Company or any Restricted Subsidiary and (iii)
non-cash dividends due (whether or not declared) on Redeemable Capital Stock of
the Company or any Restricted Subsidiary, in each case for such period.
"Consolidated Income Tax Expense" means, for any period, the
provision for federal, state, local and foreign income taxes of the Company and
all Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost (benefit) of Interest Rate
Agreements and Currency Agreements (including amortization of discounts), (iii)
the interest portion of any deferred payment obligation, including Attributable
Debt, (iv) commissions, discounts, and other fees and charges owed with respect
to letters of credit and bankers acceptance financing and similar transactions,
and (v) amortization of debt issuance costs, plus (b) the interest component of
Capitalized Lease Obligations of the Company and its Restricted Subsidiaries
paid, accrued and/or scheduled to be paid or accrued during such period, plus
(c) the interest of the Company and its Restricted Subsidiaries that was
capitalized during such period, plus (d) interest on Indebtedness of another
Person that is guaranteed by the Company or any Restricted Subsidiary or secured
by a Lien on assets of the Company or a Restricted Subsidiary, to the extent
such interest is actually paid by the Company or such Restricted Subsidiary, in
each case as determined on a consolidated basis in accordance with GAAP;
provided that (x) the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period, and (y) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period; provided further that, notwithstanding the
foregoing, the interest rate with respect to any Indebtedness covered by any
Interest Rate Agreement shall be deemed to be the effective interest rate with
respect to such Indebtedness after taking into account such Interest Rate
Agreement.
"Consolidated Net Worth" means, at any date, the stockholders'
equity of the Company and its Restricted Subsidiaries as set forth on the most
recently available quarterly or annual consolidated balance sheet of the Company
and its Restricted Subsidiaries, less the amount of such stockholders' equity
attributable to Redeemable Capital Stock or any equity security convertible or
exchangeable for Indebtedness, the cost of treasury stock of the Company
4
and any Restricted Subsidiary, the principal amount of any promissory notes
receivable from the sale of Capital Stock of the Company or any Restricted
Subsidiary, in each case as determined on a consolidated basis in accordance
with GAAP (excluding the effects of foreign currency adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"Consolidated Non-Cash Charges" means, for any period, the
aggregate depreciation, amortization, depletion and other non-cash expenses of
the Company and any Restricted Subsidiary for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such non-cash charge
that requires an accrual of or reserve for cash charges for any future period).
"Convertible Subordinated Notes" means the Company's 4 1/2%
Convertible Subordinated Notes due 2005 and 4 1/4% Convertible Subordinated
Notes due 2008.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A, that do not include the information called
for by Section 2.15 of the Base Indenture.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of Directors
is required to deliver a Board Resolution of the Board of Directors under the
Indenture, a member of the Board of Directors who does not have any material
direct of indirect financial interest in or with respect to such transaction or
series of transactions.
"Global Note" means a permanent global Note that contains the
paragraph referred to in Section 2.15 of the Base Indenture and the additional
Schedule of Exchanges of Notes to the form of the Note attached hereto as
Exhibit A, and that is deposited with and registered in the name of the
Depository.
"Hospital" means a hospital, outpatient clinic, long-term care
facility or other facility or business that is used or useful in or related to
the provision of healthcare services (other than a medical office building).
"Hospital Swap" means an exchange of assets and, to the extent
necessary to equalize the value of the assets being exchanged, cash by the
Company or a Restricted Subsidiary for one or more Hospitals and/or one or more
Related Businesses or for 100% of the Capital Stock of any Person owning or
operating one or more Hospitals and/or one or more Related Businesses, provided
that cash does not exceed 25% of the sum of the amount of the cash and the Fair
Market Value of the Capital Stock or assets received or given by the Company or
a Restricted Subsidiary in such transaction.
"Independent Financial Advisor" means a reputable accounting,
appraisal or investment banking firm that, in the reasonable good faith judgment
of the Board of Directors of the Company, is qualified to perform the task for
which such firm has been engaged and is independent with respect to the Company.
5
"Initial Notes" means the first $200,000,000 aggregate
principal amount of 7 1/2% Senior Subordinated Notes due 2013 that are issued
under the Indenture, as amended or supplemented from time to time pursuant to
the Indenture.
"Investment" means, with respect to any Person, any direct or
indirect advance, loan, guarantee or other extension of credit or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase, acquisition or ownership by such Person of any Capital Stock, bonds,
notes, debentures or other securities or evidences of Indebtedness issued or
owned by, any other Person and all other items that would be classified as
investments on a balance sheet prepared in accordance with GAAP. "Investment"
shall exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issuance Date" means the date on which the Notes are
originally issued under the Indenture.
"Joint Venture EBITDA" means, for any period, the aggregate of
the Consolidated EBITDA attributable to each Non-Wholly Owned Subsidiary
multiplied by the percentage (expressed as a fraction) of the Capital Stock of
such Non-Wholly Owned Subsidiary for which the Company or any of its wholly
owned Subsidiaries does not beneficially own both economic and voting control.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation, assignment for security, claim, or
preference of priority or other encumbrance upon or with respect to any property
of any kind, real or personal, movable or immovable, now owned or hereafter
acquired. A Person shall be deemed to own subject to a Lien any property which
such Person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement having substantially the same economic effect as the foregoing.
"Material Subsidiary" of a Person means any Restricted
Subsidiary that would be a significant subsidiary of such Person, as defined in
rule 1-02 of Regulation S-X under the Securities Act.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (a) brokerage commissions and other fees
and expenses (including, without limitation, fees and expenses of legal counsel
and investment banks, recording fees, transfer fees and appraiser fees) related
to such Asset Sale, (b) provisions for all taxes payable as a result of such
Asset Sale, (c) payments made to retire Indebtedness where payment of such
Indebtedness is secured by the assets or properties which are the subject of
such Asset Sale or where such Indebtedness must by its terms, or as required by
applicable law, be repaid out of the proceeds of such Asset Sale, (d) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in or having a Lien on the assets
subject to the Asset Sale, (e) all distributions and other payments
6
required to be made to non-majority interest holders in Subsidiaries as a result
of such Asset Sale and (f) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be, after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee.
"Non-Wholly Owned Subsidiary" of the Company means any
Subsidiary (i) less than 100% of the outstanding voting power of the Voting
Stock of which is owned or controlled, directly or indirectly, by the Company or
by one or more wholly owned Subsidiaries of the Company, or by the Company and
one or more wholly owned Subsidiaries thereof or (ii) in which the Company, or
one or more wholly owned Subsidiaries of the Company, or the Company and one or
more wholly owned Subsidiaries, directly or indirectly, has less than 100% of
the outstanding partnership or similar interests or does not have the power, by
contract or otherwise, to direct or cause the direction of the policies,
management and affairs thereof.
"Note Guarantee" means any Subsidiary Guarantee by any
Restricted Subsidiary in accordance with the provisions of the Indenture.
"Note Guarantor" means any Person that is required after the
date of the Indenture to execute a guarantee of the Notes pursuant to Section
4.17 of the Indenture until a successor replaces such party pursuant to the
applicable provisions of the Indenture and, thereafter, shall mean such
successor; provided that, upon release and discharge of any Person from its Note
Guarantee in accordance with the Indenture, such Person shall cease to be a Note
Guarantor.
"Notes" has the meaning assigned to it in the preamble to this
First Supplemental Indenture. Unless otherwise indicated, the Initial Notes and
any Additional Notes shall be treated as a single class for all purposes under
the Indenture.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company or any Restricted
Subsidiary under the Senior Credit Agreement
(including guarantees by the Company or any of its
Restricted Subsidiaries of obligations under the
Senior Credit Agreement), in an aggregate principal
amount at any one time outstanding not to exceed the
sum of $300,000,000 plus the amount equal to 85% of
the net book value of receivables and 65% of the net
book value of inventory of the Company and its
Restricted Subsidiaries on a consolidated basis at
the time the Indebtedness is incurred, as determined
in accordance with GAAP, less the amount of any
permanent reduction of the commitments under the
Senior Credit Agreement repaid as provided in Section
4.11 of the Indenture;
7
(b) Capitalized Lease Obligations of the Company and its
Restricted Subsidiaries in an aggregate amount not to
exceed $40,000,000 at any one time outstanding;
(c) Indebtedness of the Company pursuant to the Notes
(other than Additional Notes);
(d) Indebtedness (other than Indebtedness referred to in
clauses (a), (b) and (c) of this definition) of the
Company or any Restricted Subsidiary outstanding on
the date hereof;
(e) Indebtedness of the Company owing to any Restricted
Subsidiary; provided that any Indebtedness of the
Company owing to a Restricted Subsidiary that is not
a Note Guarantor is unsecured and is subordinated in
right of payment from and after such time as the
notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment
and performance of the Company's obligations under
the Notes; provided further that a disposition,
pledge or transfer of any such Indebtedness to a
Person (other than a disposition, pledge or transfer
to the Company or another Restricted Subsidiary)
shall be deemed to be an incurrence of such
Indebtedness by the Company not permitted by this
clause (e);
(f) Indebtedness of a wholly owned Restricted Subsidiary
owing to the Company or to another wholly owned
Restricted Subsidiary; provided that any disposition,
pledge or transfer of any such Indebtedness to a
Person (other than a disposition, pledge or transfer
to the Company or a Restricted Subsidiary and other
than a pledge to the lenders under the Senior Credit
Agreement) shall be deemed to be an incurrence of
such Indebtedness by such Restricted Subsidiary not
permitted by this clause (f);
(g) guarantees of any Restricted Subsidiary made in
accordance with the provisions of Section 4.17 of the
Indenture;
(h) obligations of the Company entered into in the
ordinary course of business (i) pursuant to Interest
Rate Agreements in respect of Indebtedness of the
Company or any Restricted Subsidiary, which
obligations do not exceed the aggregate principal
amount of such Indebtedness and (ii) pursuant to
Currency Agreements entered into by the Company or
any of its Restricted Subsidiaries in respect of its
(x) assets or (y) obligations, as the case may be,
denominated in a foreign currency;
(i) Indebtedness of the Company or any Restricted
Subsidiary in respect of Purchase Money Obligations
in an aggregate amount not to exceed $10,000,000 at
any one time outstanding;
(j) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities,
hold backs or obligations in respect of purchase
8
price adjustments in connection with the acquisition
or disposition of assets, including, without
limitation, shares of Capital Stock of Restricted
Subsidiaries, or contingent payment obligations
incurred in connection with the acquisition of assets
which are contingent on the performance of the assets
acquired, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion
of such assets or shares of Capital Stock of such
Restricted Subsidiary for the purpose of financing
such acquisition, provided that the maximum allowable
liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds actually
received by the Company and its Restricted
Subsidiaries;
(k) Indebtedness of the Company or any Restricted
Subsidiary represented by (i) letters of credit for
the account of the Company or any Restricted
Subsidiary or (ii) other obligations to reimburse
third parties pursuant to any surety bond or other
similar arrangements, which letters of credit or
other obligations, as the case may be, are intended
to provide security for workers' compensation claims,
payment obligations in connection with self-insurance
or other similar requirements in the ordinary course
of business;
(l) any renewals, extensions, substitutions, refinancing
or replacements (each, for purposes of this clause, a
"refinancing") of any Indebtedness incurred pursuant
to the first paragraph of Section 4.10 of the
Indenture or referred to in clause (c) or (d) of this
definition, including any successive refinancings, so
long as (i) any such new Indebtedness shall be in a
principal amount that does not exceed the principal
amount so refinanced, plus the lesser of the amount
of any premium required to be paid in connection with
such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium
reasonably determined as necessary to accomplish such
refinancing, (ii) in the case of any refinancing by
the Company of Pari Passu Indebtedness or
Subordinated Indebtedness, such new Indebtedness is
made pari passu with or subordinate to the Notes at
least to the same extent as the Indebtedness being
refinanced (provided that notwithstanding anything to
the contrary in this clause (ii), in the case of a
refinancing by the Company of any of its Convertible
Subordinated Notes, such new Indebtedness may be
incurred under the Senior Credit Agreement to the
extent otherwise permitted under clause (a) of this
definition), (iii) such new Indebtedness has an
Average Life no shorter than the Average Life of the
Indebtedness being refinanced and final Stated
Maturity of principal no earlier than the final
Stated Maturity of principal of the Indebtedness
being refinanced and (iv) Indebtedness of the Company
may only be refinanced with Indebtedness of the
Company;
(m) Physician Support Obligations incurred by the
Company; and
9
(n) Indebtedness of the Company not otherwise permitted
by the foregoing clauses (a) through (m) in an
aggregate principal amount not in excess of
$50,000,000 at any one time outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted
Subsidiary;
(c) intercompany Indebtedness to the extent permitted
under clause (e) or (f) of the definition of
"Permitted Indebtedness";
(d) Investments by the Company or any Restricted
Subsidiary in another Person, if as a result of such
Investment (i) such other Person becomes a Restricted
Subsidiary or (ii) such other Person is merged or
consolidated with or into, or transfers or conveys
all or substantially all of its assets to, the
Company or a Restricted Subsidiary;
(e) bonds, notes, debentures and other securities
received as consideration for Assets Sales to the
extent permitted under Section 4.11 of the Indenture;
(f) any Investment in a Person engaged principally in a
Related Business prior to such Investment if (i) the
Company would, at the time of such Investment and
after giving pro forma effect thereto as if such
Investment had been made at the beginning of the most
recently ended four full fiscal quarter period for
which consolidated financial statements are available
immediately preceding the date of such Investment,
have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated
Fixed Charge Coverage Ratio test set forth in the
first paragraph under Section 4.10 of the Indenture
and (ii) the aggregate amount (including cash and the
book value of property other than cash, as determined
by the Board of Directors of the Company) of all
Investments made pursuant to this clause (f) by the
Company and its Restricted Subsidiaries (determined
as of the time made) does not exceed in the aggregate
15% of the Total Assets of the Company at the time
the Investment is made; provided that Investments of
up to $20,000,000 shall be permitted under this
clause (f) without regard to the requirement of
clause (i) of this clause (f);
(g) Physician Support Obligations;
(h) Investments made in connection with Hospital Swaps;
(i) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility
and workers' compensation, performance and other
similar deposits made in the ordinary course of
business;
10
(j) Interest Rate Agreements and Currency Agreements
permitted under Section 4.10 of the Indenture;
(k) Investments existing on the Issuance Date;
(l) any Investment to the extent that the consideration
therefor is Qualified Capital Stock;
(m) shares of Capital Stock or other securities received
in settlement of debts owed to the Company or any
Restricted Subsidiary as a result of foreclosure,
perfection or enforcement of any Lien or indebtedness
or in connection with any good faith settlement of a
bankruptcy proceeding; or
(n) Investments not described in clauses (a) through (m)
of this definition in an aggregate amount not to
exceed $20,000,000; provided that, for purposes of
calculating the aggregate amount of any Investments
made pursuant to this clause (n) as of any date, the
aggregate amount of all Investments made pursuant to
this clause (n) through such date shall be reduced in
the case of a disposition of any such Investment on
or prior to such date by an amount equal to the
lesser of (x) the cash proceeds with respect to the
disposition of any such Investment (less the cost of
the disposition of such Investment and net of taxes)
and (y) the initial amount of such Investment.
"Permitted Joint Venture" means, with respect to any Person,
(a) any corporation, association, limited liability company or other business
entity (other than a partnership) of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof and more than 50% of the total equity interests is at the time of
determination owned or controlled, directly or indirectly, by such Person or one
or more of the Restricted Subsidiaries of that Person or a combination thereof
and (b) any partnership of which more than 50% of the general or limited
partnership interests are owned or controlled, directly or indirectly, by such
Person or one or more of the Restricted Subsidiaries of that Person or a
combination thereof, and which in the case of each of clauses (a) and (b) is
engaged in a Related Business.
"Permitted Liens" means (a) Liens existing on the Issue Date;
(b) Liens now or hereafter securing any Interest Rate Agreements of the Company
or any Restricted Subsidiary; (c) Liens securing any Indebtedness incurred under
clause (l) of the definition of "Permitted Indebtedness," the proceeds of which
are used to refinance Indebtedness of the Company or any Restricted Subsidiary,
provided that such Liens extend to or cover only the assets currently securing
the Indebtedness being refinanced; (d) Liens securing Acquired Indebtedness
incurred by the Company and any Restricted Subsidiary and permitted under
Section 4.10 of the Indenture, provided that such Liens attach solely to the
assets acquired; (e) Liens securing Indebtedness owing to the Company or a
Restricted Subsidiary; (f) Liens securing Purchase Money Obligations incurred in
accordance with the Indenture; (g) Liens for taxes, assessments or governmental
charges or claims either (i) not delinquent or (ii) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have
11
set aside on its books such reserves as may be required pursuant to GAAP; (h)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or being contested in
good faith, if such reserved or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof; (i) Liens incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations; (j) judgment Liens not giving rise to an Event of
Default so long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such judgment
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired; (k) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
conduct of the business of the Company or any of its Restricted Subsidiaries; or
(l) any interest or title of a lessor in assets or Property subject to
Capitalized Lease Obligations or an operating lease of the Company or any
Restricted Subsidiary.
"Physician Support Obligation" means a loan to or on behalf
of, or a guarantee of indebtedness of, a physician or healthcare professional
providing service to patients in the service area of a Hospital or other health
care facility operated by the Company or any of its Restricted Subsidiaries made
or given by the Company or any Subsidiary of the Company (a) in the ordinary
course of its business and (b) pursuant to a written agreement having a period
not to exceed five years.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"Public Equity Offering" means an offer and sale of common
stock (which is Qualified Capital Stock) of the Company made on a primary basis
by the Company pursuant to a registration statement that has been declared
effective by the SEC pursuant to the Securities Act (other than a registration
statement on Form S-8 or otherwise relating to equity securities issuable under
any employee benefit plan of the Company).
"Purchase Money Obligations" means any Indebtedness of the
Company or any Restricted Subsidiary incurred to finance the acquisition or
construction of any property or business (including Indebtedness incurred within
90 days following such acquisition or construction), including Indebtedness of a
Person existing at the time such Person becomes a Subsidiary or assumed by the
Company or a Subsidiary in connection with the acquisition of assets from such
Person; provided, however, that any Lien on such Indebtedness shall not extend
to any property other than the property so acquired or constructed.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
12
"Related Business" means a healthcare business affiliated or
associated with a Hospital or any business related or ancillary to the provision
of healthcare services or information or the investment in, or the management,
leasing or operation of, a Hospital.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Total Assets" of the Company means the total consolidated
assets of the Company and its Restricted Subsidiaries as shown on the most
recent balance sheet of the Company.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided in Section 4.18 of the Indenture)
and (b) any Subsidiary of any Unrestricted Subsidiary.
(b) OTHER DEFINITIONS.
The definitions of the following terms may be found in the
Sections indicated as follows:
TERM DEFINED IN SECTION
---- ------------------
"Base Indenture" Preamble hereof
"Change in Control Offer" 4.15 of the Indenture
"Change in Control Payment" 4.15 of the Indenture
"Change in Control Purchase Price" 4.15 of the Indenture
"Change in Control Purchase Date" 4.15 of the Indenture
"Company" Preamble hereof
"Designation" 4.18 of the Indenture
"Designation Amount" 4.18 of the Indenture
"DTC" 2.3 hereof
"Excess Proceeds" 4.11 of the Indenture
"Excess Proceeds Offer" 4.11 of the Indenture
"Excess Proceeds Payment" 4.11 of the Indenture
"Excess Proceeds Payment Date" 4.11 of the Indenture
"Event of Default" 6.1 of the Indenture
"First Supplemental Indenture" Preamble hereof
"incur" 4.10 of the Indenture
"Indenture" Preamble hereof
"Interested Persons" 4.12 of the Indenture
"Replacement Assets" 4.11 of the Indenture
"Restricted Payments" 4.8 of the Indenture
"Revocation" 4.18 of the Indenture
"Surviving Entity" 5.1 of the Indenture
"Trustee" Preamble hereof
13
ARTICLE II.
FORM AND TERMS OF THE NOTES
Section 2.1. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A attached hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of the Indenture, and the
Company and the Trustee, by their execution and delivery of this First
Supplemental Indenture and the Base Indenture (or in the case of any Note
Guarantor that becomes such after the date hereof, such Note Guarantor by its
execution of a supplemental indenture pursuant to Section 4.17 of the
Indenture), expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
(b) GLOBAL NOTES. Notes shall be issued initially in the
form of Global Notes, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Depository at its New York office, and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Service Agent, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.4 hereof.
(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall
apply only to the Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Service Agent.
14
Agent Members shall have no rights either under the Indenture
with respect to any Global Notes held on their behalf by the Depository or by
the Service Agent or under such Global Notes, and the Depository may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Notes for all purposes whatsoever.
(d) DEFINITIVE NOTES. Notes issued in certificated form
shall be substantially in the form of Exhibit A attached hereto. Except as
provided in Section 2.15.2 of the Base Indenture, owners of beneficial interests
in the Global Notes will not be entitled to receive physical delivery of
certificated Securities.
Section 2.2. EXECUTION AND AUTHENTICATION.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate up to $200,000,000 aggregate principal amount of
Initial Notes and such aggregate principal amount of Additional Notes as the
Company may issue from time to time.
Section 2.3. DEPOSITORY AND PAYING AGENT FOR NOTES.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes. The Company
initially appoints the Trustee to act as the Registrar, Paying Agent and Service
Agent with respect to the Global Notes.
Section 2.4. TRANSFER AND EXCHANGE OF NOTES.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer
and exchange of beneficial interests in the Global Notes shall be effected
through the Depository, in accordance with the Indenture and the procedures of
the Depository therefor. Beneficial interests in the Global Notes may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in the Global Notes.
(b) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When
Definitive Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive
Notes; or
(y) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes
of other authorized denominations, the
Registrar shall register the transfer or
make the exchange as requested if its
requirements for such transactions are met;
provided, however, that the Definitive Notes
presented or surrendered for register of
transfer or exchange shall be duly endorsed
or accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or by
his attorney, duly authorized in writing.
(c) CANCELLATION AND/OR ADJUSTMENT OF THE GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note have been
exchanged
15
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.12 of the
Base Indenture. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by the
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depository at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement will be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such increase.
Section 2.5. REDEMPTION.
With respect to the Notes issued under this First Supplemental
Indenture, the following Sections supplement Article III of the Base Indenture:
Section 3.7 Optional Redemption
(a) Except as set forth in paragraph (b) of this Section
3.7, the Company shall not have the option to redeem the Notes pursuant
to this Section 3.7 prior to June 1, 2008. On or after June 1, 2008,
the Notes will be subject to redemption at any time at the option of
the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest, if
any, to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 1, of the years indicated below
(subject to the right of Holders of record on relevant record dates to
receive interest due on an interest payment date):
Year Redemption Price
---- ----------------
2008 103.750%
2009 102.500%
2010 101.250%
2011 and thereafter 100.000%
(b) Notwithstanding the provisions of paragraph (a) of
this Section 3.7, at any time and from time to time prior to June 1,
2006, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Notes originally issued hereunder
within 60 days of one or more Public Equity Offerings with the net
proceeds of such offering at a redemption price of 107.500% of the
principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the redemption date (subject to the right of Holders of record
on relevant record dates to receive interest due on an interest payment
date); provided that, after giving effect to any such redemption, at
least 65% of the original aggregate principal amount of the Notes
remains outstanding.
16
(c) Any redemption pursuant to this Section 3.7 shall be
made pursuant to the provisions of Sections 3.1 through 3.6.
Section 3.8 Mandatory Redemption
Except as set forth in Sections 4.10 and 4.15, the Company
shall not be required to make mandatory redemption payments or sinking
fund payments with respect to the Notes.
Section 2.6. COVENANTS.
(a) With respect to the Notes issued under this First
Supplemental Indenture, the following Section shall replace Section 4.2 of the
Base Indenture in its entirety:
Section 4.2. SEC Reports.
For as long as the Notes are outstanding, the Company will
file on a timely basis with the SEC, to the extent such filings are
accepted by the SEC and whether or not the Company has a class of
securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be
required to file pursuant to Section 13 or 15(d) of the Exchange Act if
it were subject thereto. The Company will also be required (i) to file
with the Trustee copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents
with the SEC or the date on which the Company would be required to file
such reports and documents if the Company were so required, and (ii) if
filing such reports and documents with the SEC is not accepted by the
SEC or is prohibited under the Exchange Act, to furnish the Trustee,
and mail to each Holder of Notes, without cost to such Holder, copies
of such reports and documents within 15 days after the date on which
the Company otherwise would have been required to file such reports and
documents.
(b) With respect to the Notes issued under this First
Supplemental Indenture, the following covenants are added to the end of Article
IV of the Base Indenture:
Section 4.8. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following
actions:
(i) declare or pay any dividend on, or make any
distribution to direct or indirect holders of, any shares of
the Capital Stock of the Company, including, without
limitation, any payment in connection with any merger or
consolidation involving the Company or any Restricted
Subsidiary which is not a wholly owned Restricted Subsidiary
(other than dividends or distributions payable solely in (A)
shares of Qualified Capital Stock of the Company or (B)
options, warrants or other rights to acquire such shares of
Qualified Capital Stock);
17
(ii) purchase, redeem or otherwise acquire or retire
for value, directly or indirectly, any shares of Capital Stock
of the Company or any Affiliate of the Company, including,
without limitation, in connection with any merger or
consolidation involving the Company (other than any Capital
Stock owned by the Company or any wholly owned Restricted
Subsidiary) or any options, warrants or other rights to
acquire such shares of Capital Stock;
(iii) declare or pay any dividend, or make any
distribution to holders of, any shares of Capital Stock of any
Restricted Subsidiary (other than to the Company or any of its
wholly owned Restricted Subsidiaries or to all holders of
Capital Stock of such Restricted Subsidiary on a pro rata
basis);
(iv) make any principal payment on, or repurchase,
redeem, defease or otherwise acquire or retire for value,
prior to any scheduled principal payment, sinking fund payment
or maturity, any Subordinated Indebtedness of the Company or
any Note Guarantor, or any guarantee thereof; or
(v) make any Investment (other than any Permitted
Investment) in any Person,
(such payments or other actions described in (but not excluded from)
clauses (i) through (v) are collectively referred to as "Restricted
Payments") unless (1) immediately before and immediately after giving
effect to such proposed Restricted Payment on a pro forma basis, no
Default or Event of Default shall have occurred and be continuing, (2)
immediately before and immediately after giving effect to such
Restricted Payment on a pro forma basis, the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.10 hereof and (3) the aggregate
amount of all Restricted Payments declared or made after the date of
the Indenture shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of
the Company (or, if such Consolidated Adjusted Net Income
shall be a loss, less 100% of such loss) accrued on a
cumulative basis during the period beginning on March 31, 2003
and ending on the last day of the Company's last fiscal
quarter ending prior to the date of such proposed Restricted
Payment, plus
(B) 100% of the aggregate net cash proceeds received
after the date of the Indenture by the Company as a
contribution to its common equity capital or from the issuance
or sale (other than to any of its Subsidiaries) of shares of
Qualified Capital Stock of the Company (including upon the
exercise of options, warrants or rights) or warrants, options
or rights to purchase shares of Qualified Capital Stock of the
Company (excluding any net cash proceeds from a Public Equity
Offering to the extent used to redeem the Notes), plus
(C) the aggregate net cash proceeds received after
the date of the Indenture by the Company from the issuance or
sale (other than to any of its
18
Subsidiaries) of debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified
Capital Stock of the Company, to the extent such securities
were originally sold for cash, together with the aggregate net
cash proceeds received by the Company at the time of such
conversion or exchange, plus
(D) to the extent that any Investment constituting a
Restricted Payment that was made after the date of the
Indenture is sold or is otherwise liquidated or repaid, an
amount (to the extent not included in Consolidated Adjusted
Net Income) equal to the lesser of (x) the cash proceeds with
respect to such Investment (less the cost of the disposition
of such Investment and net of taxes) and (y) the initial
amount of such Investment, plus
(E) an amount equal to the sum of (x) the net
reduction in Investments in Unrestricted Subsidiaries
resulting from cash dividends, repayments of loans or advances
or other transfers of assets, in each case to the Company or
any Restricted Subsidiary from Unrestricted Subsidiaries, plus
(y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the
net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary,
in each case since the Issuance Date; provided, however, that
the foregoing sum shall not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made (and treated as a Restricted Payment) by the Company or
any Restricted Subsidiary in any such Unrestricted Subsidiary;
provided further, however, that no amount will be included
under this clause (E) to the extent it is already included in
Consolidated Net Income of the Company in clause (A) above.
(b) Notwithstanding paragraph (a) above, the Company and
its Restricted Subsidiaries may take the following actions so long as
(with respect to clauses (ii), (iii), (iv), (v), (vi), (vii), (viii),
(ix) and (x) below) at the time of and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing:
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of
declaration the payment of such dividend would have complied
with the provisions of paragraph (a) above;
(ii) the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the
Company in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a
Subsidiary of the Company) of, shares of Qualified Capital
Stock of the Company;
(iii) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Indebtedness in exchange for, or out of the net cash proceeds
of a substantially concurrent issuance and sale (other than to
19
a Subsidiary of the Company) of, shares of Qualified Capital
Stock of the Company;
(iv) the purchase of any Subordinated Indebtedness at
a purchase price no greater than 101% of the principal amount
thereof in the event of a Change in Control in accordance with
provisions similar to Section 4.15 hereof; provided that prior
to such purchase the Company has made the Change in Control
Offer as provided in Section 4.15 with respect to the Notes
and has purchased all Notes validly tendered for payment in
connection with such Change in Control Offer;
(v) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Indebtedness (other than Redeemable Capital Stock) in exchange
for, or out of the net cash proceeds of a substantially
concurrent incurrence (other than to a Subsidiary of the
Company) of, new Subordinated Indebtedness so long as (x) the
principal amount of such new Subordinated Indebtedness does
not exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of
the date of determination) of the Indebtedness being so
purchased, redeemed, defeased, acquired or retired, plus the
lesser of the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the
Indebtedness as refinanced or the amount of any premium
reasonably determined as necessary to accomplish such
refinancing, plus, in either case, the amount of reasonable
expenses of the Company incurred in connection with such
refinancing, (y) such new Subordinated Indebtedness is pari
passu with or subordinated to, as applicable, the Notes to the
same extent as such Subordinated Indebtedness so purchased,
redeemed, defeased, acquired or retired and (z) such new
Subordinated Indebtedness has an Average Life longer than the
Average Life of the Notes and a final Stated Maturity of
principal later than the final Stated Maturity of principal of
the Notes;
(vi) repurchases, acquisitions or retirements of
Qualified Capital Stock of the Company deemed to occur upon
the exercise of stock options or similar rights under employee
benefit plans of the Company or its Subsidiaries if such
Qualified Capital Stock represents all or a portion of the
exercise price thereof;
(vii) payments by the Company to be used to
repurchase, redeem, acquire or retire for value any Capital
Stock of the Company, (a) pursuant to any management equity
subscription plan or agreement, stock option or stock purchase
plan or agreement or employee benefit plan as may be adopted
by the Company from time to time, or (b) from an employee of
the Company upon the termination of such employee's employment
with the Company; provided that the aggregate amount redeemed,
repurchased, acquired or retired for value pursuant to this
clause (vii) will not exceed $3,300,000 in any twelve-month
period;
(viii) the redemption, repurchase, acquisition or
retirement of equity interests in any Restricted Subsidiary;
provided that if the Company or any
20
Restricted Subsidiary incurs Indebtedness in connection with
such redemption, repurchase, acquisition or retirement, after
giving effect to such incurrence and such redemption,
repurchase, acquisition or retirement, the Company could incur
$1.00 of additional Indebtedness pursuant to the first
paragraph of Section 4.10 hereof; and
(ix) Restricted Payments in addition to those
permitted by clauses (i)-(viii) of this paragraph (b) in an
aggregate amount not to exceed $10,000,000.
The actions described in clauses (i), (ii), (iii), (vii),
(viii) and (ix) of this paragraph (b) shall be Restricted Payments that
shall be permitted to be taken in accordance with this paragraph (b)
but shall reduce the amount that would otherwise be available for
Restricted Payments under clause (3) of paragraph (a) above and the
actions described in clauses (iv), (v) and (vi) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph (b), but shall not reduce the amount
that would otherwise be available for Restricted Payments under clause
(3) of paragraph (a).
The amount of all Restricted Payments (other than cash) shall
be the Fair Market Value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment. The Fair Market Value of any non-cash
Restricted Payment shall be determined in good faith by the Board of
Directors of the Company whose determination with respect thereto shall
be conclusive. If the Company or a Restricted Subsidiary makes a
Restricted Payment which, at the time of the making of such Restricted
Payment, would in the good faith determination of the Company be
permitted under the provisions of the Indenture, such Restricted
Payment shall be deemed to have been made in compliance with the
Indenture notwithstanding any subsequent adjustments made in good faith
to the Company's financial statements affecting Consolidated Adjusted
Net Income of the Company for any period.
Section 4.9. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause to
suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary to
(a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock or other ownership
interest, or any other interest or participation in or measured by, its
profits to the Company or any other Restricted Subsidiary, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary,
(c) make loans or advances to the Company or any other Restricted
Subsidiary, (d) transfer any of its properties or assets to the Company
or any other Restricted Subsidiary or (e) guarantee any Indebtedness of
the Company or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii)
21
customary provisions restricting subletting or assignment of any lease
or assignment of any other contract to which the Company or any
Restricted Subsidiary is a party or to which any of their respective
properties or assets are subject, (iii) any agreement or other
instrument of a Person acquired by the Company or any Restricted
Subsidiary in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the
Person, so acquired, so long as the agreement containing such
restriction does not violate any other provision of the Indenture,
(iv) encumbrances and restrictions in effect on the Issuance Date,
including, without limitation, pursuant to the Senior Credit Agreement
and its related documentation, (v) any encumbrance or restriction
contained in contracts for sales of assets permitted by Section 4.11
hereof with respect to the assets to be sold pursuant to such
contract, (vi) in the case of clause (d) above, restrictions contained
in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary permitted under the Indenture to the extent such
restrictions restrict the transfer of the property subject to such
security agreements or mortgages and (vii) any encumbrance or
restriction existing under any agreement that extends, renews,
refinances or replaces the agreements containing the encumbrances or
restrictions in the foregoing clauses (iii) and (iv); provided that
the terms and conditions of any such encumbrances or restrictions are
not materially more restrictive than those under or pursuant to the
agreement so extended, renewed, refinanced or replaced.
Section 4.10. Limitation on Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, create, issue, assume, guarantee or in any manner become
directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including any Acquired
Indebtedness), other than Permitted Indebtedness; provided, however,
that, so long as no Default or Event of Default has occurred and is
continuing, the Company may incur Indebtedness (including Acquired
Indebtedness) if at the time of such incurrence the Consolidated Fixed
Charge Coverage Ratio of the Company for the four full fiscal quarters
immediately preceding the incurrence of such Indebtedness for which
consolidated financial statements are available, taken as one period,
would have been at least equal to 2.25 to 1.0, after giving pro forma
effect to (i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance
other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, on the first day of such
four-quarter period, (ii) the incurrence, repayment or retirement of
any other Indebtedness by the Company and its Restricted Subsidiaries
since the first day of such four-quarter period as if such Indebtedness
was incurred, repaid or retired on the first day of such four-quarter
period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during such
four-quarter period) and (iii) the acquisition (whether by
22
purchase, merger or otherwise) or disposition (whether by sale, merger
or otherwise) of any company, entity or business (including, without
limitation, a Hospital and any Hospital operated by the Company or any
Restricted Subsidiary pursuant to an operating lease, provided that
such operating lease was entered into in connection with a "synthetic
lease" or other transaction pursuant to which the Company or any
Restricted Subsidiary incurred an obligation, direct or indirect, with
respect to off-balance sheet financing with respect to such Hospital
property) acquired or disposed of by the Company or its Restricted
Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred on
the first day of such four-quarter period).
Whenever pro forma effect is to be given to an acquisition or
disposition pursuant to clause (iii) above, such pro forma calculation
shall be determined in accordance with Article 11 of Regulation S-X
under the Securities Act.
For purposes of determining compliance with this Section 4.10,
in the event that an item of proposed Indebtedness meets the criteria
of more than one of the categories described in clauses (a) through (n)
of the definition of Permitted Indebtedness as of the date of
incurrence thereof or is entitled to be incurred pursuant to the first
paragraph of this covenant as of the date of incurrence thereof, the
Company may, in its sole discretion, classify or reclassify such item
of Indebtedness in any manner that complies with this Section 4.10.
Accrual of interest, the accretion of accreted value and the payment of
interest in the form of additional Indebtedness will not be deemed to
be an incurrence of Indebtedness for purposes of this Section 4.10.
Section 4.11. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, engage in any Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary at
the time of such Asset Sale is not less than the Fair Market Value of
the assets sold and (ii) at least 75% of such consideration consists of
cash or Cash Equivalents or Replacement Assets. The amount of any (A)
Indebtedness (other than Subordinated Indebtedness) of the Company or a
Restricted Subsidiary that is actually assumed by the transferee in
such Asset Sale and from which the Company and the Restricted
Subsidiaries are fully released shall be deemed to be cash for purposes
of determining the percentage of cash consideration received by the
Company or the Restricted Subsidiaries, (B) notes, securities or other
similar obligations received by the Company or any Restricted
Subsidiary from such transferee that are converted, sold or exchanged
within 30 days of the related Asset Sale by the Company or the
Restricted Subsidiaries into cash shall be deemed to be cash, in an
amount equal to the net cash proceeds realized upon such conversion,
sale or exchange, for purposes of determining the percentage of cash
consideration received by the Company or the Restricted Subsidiaries
and (C) with respect to any sale of the Capital Stock of a Restricted
Subsidiary to one or more physicians practicing medicine at a Hospital
owned by such Restricted Subsidiary, promissory notes or
23
other similar obligations from such physicians shall be deemed to be
cash; provided that the aggregate amount of such promissory notes or
other similar obligations held by the Company and its Restricted
Subsidiaries does not exceed $7.5 million outstanding at any time.
(b) If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company may use the Net Cash Proceeds thereof,
within 12 months after such Asset Sale, to (i) permanently repay or
prepay any then outstanding Senior Indebtedness of the Company or any
Restricted Subsidiary (and to correspondingly reduce commitments with
respect thereto) or (ii) invest (or enter into a legally binding
agreement to invest) in (A) other properties or assets to replace the
properties or assets that were the subject of the Asset Sale, (B)
properties and assets that will be used in businesses of the Company or
its Restricted Subsidiaries, as the case may be, existing at the time
such assets are sold, or in any Related Business or (C) Capital Stock
of a Person, the principal portion of whose assets consist of such
property or assets; provided that the Company or such Restricted
Subsidiary shall acquire at least the same percentage of equity and
voting interest in such Person as the Company or such Restricted
Subsidiary held with respect to the assets disposed of in such Asset
Sale; provided further that the foregoing proviso shall not apply to an
Investment in the Capital Stock of a Permitted Joint Venture pursuant
to this clause (C) so long as, at the time of any such Investment,
Joint Venture EBITDA for the four full fiscal quarters for which
financial statements are available, taken as one period, immediately
preceding such Investment does not exceed 10.0% of Consolidated EBITDA.
The assets referred to in clauses (A), (B) and (C) constitute
"Replacement Assets".
Pending the final application of any such Net Cash Proceeds,
the Company may temporarily reduce Senior Indebtedness or otherwise
invest such Net Proceeds in any manner that is not prohibited by the
Indenture. If any such legally binding agreement to invest such Net
Cash Proceeds is terminated, then the Company may, within 90 days of
such termination or within 12 months of such Asset Sale, whichever is
later, invest such Net Cash Proceeds as provided in clause (i) or (ii)
(without regard to the parenthetical contained in such clause (ii)
above). The amount of such Net Cash Proceeds not so used as set forth
above in this paragraph (b) constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$15.0 million, the Company shall, within 30 Business Days, make an
offer to purchase (an "Excess Proceeds Offer") from all Holders of
Notes, on a pro rata basis, in accordance with the procedures set forth
below, the maximum principal amount (expressed as an integral multiple
of $1,000) of Notes that may be purchased with the Excess Proceeds. The
offer price as to each Note shall be payable in cash in an amount equal
to 100% of the principal amount of such Note plus accrued interest, if
any, to the date such Excess Proceeds Offer is consummated ("Excess
24
Proceeds Payment"). To the extent that the aggregate principal amount
of Notes tendered pursuant to an Excess Proceeds Offer is less than the
Excess Proceeds, the Company may use such deficiency for any lawful
purposes not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes validly tendered and not withdrawn by Holders
thereof exceeds the Excess Proceeds, Notes to be purchased will be
selected on a pro rata basis. Notwithstanding the foregoing, if the
Company is required to commence an Excess Proceeds Offer at any time
when securities of the Company ranking pari passu in right of payment
with the Notes are outstanding and the terms of such securities provide
that a similar offer must be made with respect to such other
securities, then the Excess Proceeds Offer for the Notes shall be made
concurrently with such other offers and securities of each issue will
be accepted on a pro rata basis in proportion to the aggregate
principal amount of securities of each issue which the holders thereof
elect to have purchased. Any Excess Proceeds Offer will be made only to
the extent permitted under, and subject to prior compliance with, the
terms of agreements governing Senior Indebtedness. Upon completion of
such Excess Proceeds Offer, the amount of Excess Proceeds shall be
reset to zero.
(d) Upon the commencement of an Excess Proceeds Offer,
the Company shall send, by first class mail, a notice to the Trustee
and to each Holder at its registered address. The notice shall contain
all instructions and materials necessary to enable such Holder to
tender Notes pursuant to the Excess Proceeds Offer. Any Excess Proceeds
Offer shall be made to all Holders. The notice, which shall govern the
terms of the Excess Proceeds Offer, shall state: (1) that the Excess
Proceeds Offer is being made pursuant to this Section 4.11; (2) the
Excess Proceeds Offer amount, the Excess Proceeds Payment and the date
on which Notes tendered and accepted for payment shall be purchased,
which date shall be at least 30 days and no later than 60 days from the
date such notice is mailed (the "Excess Proceeds Payment Date"); (3)
that any Note not tendered or accepted for payment shall continue to
accrete or accrue interest; (4) that, unless the Company defaults in
making such payment, any Note accepted for payment pursuant to the
Excess Proceeds Offer shall cease to accrete or accrue interest after
the Excess Proceeds Payment Date; (5) that Holders electing to have a
Note purchased pursuant to the Excess Proceeds Offer may only elect to
have all of such Note purchased and may not elect to have only a
portion of such Note purchased; (6) that Holders electing to have a
Note purchased pursuant to any Excess Proceeds Offer shall be required
to surrender the Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, a depositary, if appointed by the
Company, or the Paying Agent at the address specified in the notice at
least three days before the Excess Proceeds Payment Date; (7) that
Holders shall be entitled to withdraw their election if the Company,
the depositary or the Paying Agent, as the case may be, receives, not
later than the Excess Proceeds Payment Date, a notice setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased; (8) that, if the aggregate
principal amount of Notes surrendered by Holders exceeds the Excess
Proceeds Offer amount, the
25
Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and (9) that Holders whose Notes were
purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer). The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the
Notes as a result of an Asset Sale.
(e) On the Excess Proceeds Payment Date, the Company
shall, to the extent lawful: (1) accept for payment all Notes or
portions thereof properly tendered pursuant to the Excess Proceeds
Offer; (2) deposit with the Paying Agent an amount equal to the Excess
Proceeds Payment in respect of all Notes or portions thereof so
tendered; and (3) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being
repurchased by the Company. The Company shall publicly announce the
results of the Excess Proceeds Offer on the Excess Proceeds Payment
Date.
(f) The Paying Agent shall promptly mail to each Holder
of Notes so tendered the Excess Proceeds Payment for such Notes, and
the Trustee shall promptly authenticate pursuant to an authentication
order and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unrepurchased
portion of the Notes surrendered, if any; provided that each such new
Note shall be in a principal amount of $1,000 or an integral multiple
thereof. However, if the Excess Proceeds Payment Date is on or after an
interest record date and on or before the related interest payment
date, any accrued and unpaid interest shall 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 shall be payable to Holders who tender
Notes pursuant to the Excess Proceeds Offer.
Section 4.12. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into or make, amend or
permit to exist any contract, agreement, understanding, loan, advance,
guarantee or other transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease
of assets, property or services) with, or for the benefit of, any
Affiliate of the Company or any Restricted Subsidiary (other than the
Company or a Restricted Subsidiary) (collectively, "Interested
Persons"), unless (i) such transaction or series of transactions are on
terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than would have been able to be
obtained at the time for a comparable transaction in arm's-length
dealings with third parties that are not Interested Persons, (ii) with
respect to any transaction or series of related transactions involving
aggregate value equal to or
26
greater than $5,000,000, the Company has delivered an Officers'
Certificate to the Trustee certifying that such transaction or series
of transactions complies with clause (i) above and such transaction or
series of related transactions shall have been approved by the Board of
Directors of the Company (including a majority of the Disinterested
Directors of the Company) and (iii) with respect to any transaction or
series of related transactions involving aggregate value equal to or
greater than $10,000,000, the Company has obtained a written opinion
from an Independent Financial Advisor certifying that such transaction
or series of related transactions is fair to the Company or its
Restricted Subsidiary, as the case may be, from a financial point of
view; provided, however, that this Section 4.12 will not restrict (1)
reasonable and customary directors' fees, indemnification and similar
arrangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or a
Restricted Subsidiary entered into in the ordinary course of business,
(2) any transactions made in compliance with Section 4.8 hereof, (3)
loans and advances to officers, directors and employees of the Company
or any Restricted Subsidiary in the ordinary course of business in
accordance with the past practices of the Company or any Restricted
Subsidiary, (4) any agreement as in effect as of the Issuance Date or
any amendment thereto so long as any such amendment is not more
disadvantageous to the holders in any material respect than the
original agreement as in effect on the Issuance Date, and (5) contracts
pursuant to which the Company or a wholly owned Restricted Subsidiary
provides management services to an Affiliate in exchange for payments
in cash or Cash Equivalents, that are no less favorable to the Company
or such wholly owned Restricted Subsidiary than those that could
reasonably be obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate of the
Company or such wholly owned Restricted Subsidiary.
Section 4.13. Limitation on Liens.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume
or suffer to exist any Lien securing Pari Passu Indebtedness or
Subordinated Indebtedness of the Company on or with respect to any of
its property or assets including any shares of stock or Indebtedness of
any Restricted Subsidiary, whether owned on the date of the Indenture
or thereafter acquired, or any income, profits or proceeds therefrom,
or assign or otherwise convey any right to receive income thereon,
other than Permitted Liens, unless (i) in the case of any Lien securing
Pari Passu Indebtedness of the Company, the Notes are secured by a Lien
on such property, assets or proceeds that is senior in priority to or
pari passu with such Lien and (ii) in the case of any Lien securing
Subordinated Indebtedness of the Company, the Notes are secured by a
Lien on such property, assets or proceeds that is senior in priority to
such Lien.
(b) The Company will not permit any Note Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any
Lien securing Pari Passu
27
Indebtedness or Subordinated Indebtedness of such Note Guarantor or
with respect to such Restricted Subsidiary's properties or assets,
including any shares of stock or Indebtedness of any Subsidiary or such
Note Guarantor, whether owned at the date of the Indenture or
thereafter acquired, or any income, profits or proceeds therefrom, or
assign or otherwise convey any right to receive income thereon, unless
(i) in the case of any Lien securing Pari Passu Indebtedness of the
Note Guarantor, the Note Guarantee of such Note Guarantor is secured by
a Lien on such property, assets or proceeds that is senior in priority
to or pari passu with such Lien and (ii) in the case of any Lien
securing Subordinated Indebtedness of such Note Guarantor, the Note
Guarantee of such Note Guarantor is secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien.
Section 4.14. Limitation on Other Senior Subordinated
Indebtedness.
The Company will not, and will not permit or cause any Note
Guarantor to, incur, create, assume, guarantee or in any other manner
become directly or indirectly liable with respect to or responsible
for, or permit to remain outstanding, any Indebtedness, other than the
Notes or the Note Guarantee of such Note Guarantor, that is subordinate
or junior in right of payment to any Indebtedness of the Company or
such Note Guarantor, as the case may be, unless such Indebtedness is
also pari passu with, or subordinate in right of payment to, the Notes
or the Note Guarantee of such Note Guarantor, as applicable, at least
to the same extent as the Notes are subordinated in right of payment to
Senior Indebtedness as set forth in the Indenture.
Section 4.15. Purchase of Notes upon Change in Control.
If a Change in Control shall occur at any time, then each
Holder of Notes will have the right to require that the Company
purchase such Holder's Notes, in whole or in part in integral multiples
of $1,000, at a purchase price (the "Change in Control Purchase Price")
in cash in an amount ("Change in Control Payment") equal to 101% of the
principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change in Control Purchase Date"), pursuant to the offer
described below (the "Change in Control Offer") and the other
procedures set forth below.
Within 30 days following any Change in Control, the Company
shall notify the Trustee thereof and give written notice of such Change
in Control to each Holder of Notes by first-class mail, postage
prepaid, at the address of such Holder appearing in the security
register, describing the transaction or transactions that constitute
the Change in Control and stating, among other things, (i) the Change
in Control Purchase Price and the Change in Control Purchase Date,
which shall be a Business Day no earlier than 30 days nor more than 60
days from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act or any
applicable securities laws or regulations; (ii) that any Note not
tendered will continue to accrue interest; (iii) that, unless the
Company defaults in the payment of the Change in
28
Control Purchase Price, any Notes accepted for payment pursuant to the
Change in Control Offer shall cease to accrue interest after the Change
in Control Purchase Date; and (iv) certain procedures that a Holder of
Notes must follow to accept a Change in Control Offer or to withdraw
such acceptance.
On the Change in Control Purchase Date, the Company will, to
the extent lawful, (i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change in Control Offer, (ii) deposit
with the Paying Agent an amount equal to the Change in Control Purchase
Price in respect of all Notes or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal
amount of Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to each Holder of Notes so tendered
the Change in Control Purchase Price for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered; provided that each such
new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. However, if the Change in Control Purchase Date is on
or after an interest record date and on or before the related interest
payment date, any accrued and unpaid interest shall 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 shall be payable to
Holders who tender Notes pursuant to the Change in Control Offer. Prior
to complying with the provisions of this Section 4.15, but in any event
within 90 days following the Change in Control, the Company will either
repay all outstanding Senior Indebtedness or obtain the requisite
consents, if any, under all agreements governing Senior Indebtedness to
permit the repurchase of Notes required by this Section 4.15. The
Company will publicly announce the results of the Change in Control
Offer on or as soon as practicable after the Change in Control Purchase
Date. The Company shall not be required to make a Change in Control
Offer upon a Change in Control if a third party makes the Change in
Control Offer in the manner, at the time and otherwise in compliance
with the requirements applicable to a Change in Control Offer made by
the Company and purchases all Notes validly tendered and not withdrawn
under such Change in Control Offer.
The Change in Control provisions described above will be
applicable whether or not any other provisions of the Indenture are
applicable. The Company will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws and resolutions in connection with a Change
in Control Offer.
Section 4.16. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries.
The Company (a) will not permit any Restricted Subsidiary to
issue any Capital Stock (other than to the Company or a wholly owned
Restricted Subsidiary) and (b) will not permit any Person (other than
the Company or a
29
wholly owned Restricted Subsidiary) to own any Capital Stock of any
Restricted Subsidiary; provided, however, that this Section 4.16 shall
not prohibit (i) the issuance or any sale, transfer, lease, conveyance,
or other disposition of all, but not less than all, of the issued and
outstanding Capital Stock of any Restricted Subsidiary owned by the
Company or any of its Restricted Subsidiaries in compliance with the
other provisions of the Indenture, so long as the Net Cash Proceeds, if
any, from such sale, transfer, lease, conveyance or other disposition
are applied in accordance with Section 4.11 hereof, (ii) the ownership
by other Persons of Qualified Capital Stock issued prior to the time
such Restricted Subsidiary became a Subsidiary of the Company that was
neither issued in contemplation of such Subsidiary becoming a
Subsidiary nor acquired at that time, (iii) the ownership by directors
of director qualifying shares or the ownership by foreign nationals of
Capital Stock of any Restricted Subsidiary, to the extent mandated by
applicable law, (iv) arrangements existing on the Issuance Date, (v)
(A) any issuance, sale or other disposition of Capital Stock (other
than Preferred Stock) of a Restricted Subsidiary if, immediately after
giving effect thereto, such Restricted Subsidiary would remain a
Restricted Subsidiary, or (B) the ownership by any Person of such
Capital Stock, or (vi) any issuance, sale or other disposition of
Capital Stock of a Restricted Subsidiary if, immediately after giving
effect thereto, such Person would no longer constitute a Restricted
Subsidiary and any Investment in such Person remaining after giving
effect thereto would have been permitted to be made (and shall be
deemed to have been made) under Section 4.8 hereof on the date of such
issuance, sale or other disposition.
Section 4.17. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.
(a) The Company will not permit any Restricted
Subsidiary, directly or indirectly, to guarantee, assume or in any
other manner become liable with respect to, any Indebtedness of the
Company other than Permitted Indebtedness pursuant to clause (a) of the
definition of Permitted Indebtedness unless (i) such Restricted
Subsidiary simultaneously executes and delivers a supplemental
indenture to the Indenture providing for a guarantee of the Notes
pursuant to Article XII of the Indenture on the same terms as the
guarantee of such Indebtedness, except that if such Indebtedness is
unsubordinated, such Restricted Subsidiary's Note Guarantee with
respect to such Indebtedness may be subordinated to that Restricted
Subsidiary's guarantee of such Indebtedness to the same extent as the
Notes are subordinated to such Indebtedness, and if such Indebtedness
is by its terms expressly subordinated to the Notes, any such
assumption, guarantee or other liability of such Restricted Subsidiary
with respect to such Indebtedness shall be subordinated to such
Restricted Subsidiary's Note Guarantee at least to the same extent as
the Notes are subordinated to Senior Indebtedness of the Company under
the Indenture, and (ii) such Restricted 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
30
any other rights against the Company or any other Subsidiary of the
Company as a result of any payment by such Restricted Subsidiary under
its Note Guarantee.
(b) Notwithstanding the foregoing, any Note Guarantee by
a Restricted Subsidiary shall provide by its terms that it (and all
Liens securing the same) shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any
Person not an Affiliate of the Company, of all of the Company's Capital
Stock in, or all or substantially all of the assets of such Restricted
Subsidiary, which transaction is in compliance with the terms of the
Indenture and such Restricted Subsidiary is released from all
guarantees, if any, by it of other Indebtedness of the Company or any
Restricted Subsidiaries, (ii) the release by the holders of the
Indebtedness of the Company described in clause (a) above of their
guarantee by such Restricted Subsidiary (including any deemed release
upon payment in full of all obligations under such Indebtedness other
than as a result of payment under such guarantee), at such time as (A)
no other Pari Passu Indebtedness or Subordinated Indebtedness of the
Company has been secured or guaranteed by such Restricted Subsidiary,
as the case may be, or (B) the holders of all such other Pari Passu
Indebtedness and Subordinated Indebtedness which is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness other than as a result of payment
under such guarantee) and (iii) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms
of the Indenture.
Section 4.18. Limitation on Unrestricted Subsidiaries.
The Company may designate after the Issuance Date any
Subsidiary as an "Unrestricted Subsidiary" (a "Designation") only if
(a) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation, (b) the Company would be
permitted to make an Investment (other than a Permitted Investment) at
the time of Designation (assuming the effectiveness of such
Designation) pursuant to the first paragraph of Section 4.8 hereof of
an amount (the "Designation Amount") equal to the greater of (i) the
net book value of the Company's interest in such Subsidiary calculated
in accordance with GAAP or (ii) the Fair Market Value of the Company's
interest in such Subsidiary as determined in good faith by the Board of
Directors of the Company, (c) the Company would be permitted under the
Indenture to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.10 hereof at the time of
such Designation (assuming the effectiveness of such Designation), (d)
such Unrestricted Subsidiary does not own any Capital Stock in any
Restricted Subsidiary of the Company which is not simultaneously being
designated an Unrestricted Subsidiary, (e) no default with respect to
any Indebtedness of such Unrestricted Subsidiary (other than a Note
Guarantee, if any) would permit (upon notice, lapse or otherwise) any
holder of any other Indebtedness of the Company or any Restricted
Subsidiary to declare a default on such other Indebtedness or cause the
payment to be accelerated or payable prior to
31
its Stated Maturity, and (f) such Unrestricted Subsidiary is not a
party to any agreement, contract, arrangement or understanding at such
time with the Company or any Restricted Subsidiary unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of
the Company or, in the event such condition is not satisfied, the value
of such agreement, contract, arrangement or understanding to such
Unrestricted Subsidiary shall be deemed a Restricted Payment.
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment
pursuant to Section 4.8 hereof for all purposes of the Indenture in the
Designation Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time (x) have any obligation to
subscribe for additional shares of Capital Stock or other equity
interest in such Unrestricted Subsidiary, (y) have any obligation to
maintain or preserve such Unrestricted Subsidiary's financial condition
or to cause such Unrestricted Subsidiary to achieve certain levels of
operating results or (z) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary. For purposes of the
foregoing, the Designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be deemed to be the Designation of all of
the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if: (a) no Default shall have
occurred and be continuing at the time of and after giving effect to
such Revocation, (b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
incurred at such time, have been permitted to be incurred for all
purposes of the Indenture, and (c) unless such redesignated Subsidiary
shall not have any Indebtedness outstanding (other than Indebtedness
that would be Permitted Indebtedness), immediately after giving effect
to such proposed Revocation, and after giving pro forma effect to the
incurrence of any such Indebtedness of such redesignated Subsidiary as
if such Indebtedness was incurred on the date of the Revocation, the
Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.10 hereof.
All Designations and Revocations must be evidenced by a
resolution of the Board of Directors of the Company delivered to the
Trustee certifying compliance with the foregoing provisions.
Section 4.19. Further Assurances.
Upon the request of the Trustee or as otherwise required, the
Company will execute and deliver such further instruments and undertake
such further
32
reasonable action as may be reasonably required to carry out the
purposes of the Indenture.
Section 2.7. SUCCESSORS.
With respect to the Notes issued under this First Supplemental
Indenture, Article V of the Base Indenture shall apply, but Sections 5.1 and 5.2
of the Base Indenture shall be replaced in their entirety with the following:
Section 5.1. Consolidation, Merger and Sale of Assets.
The Company will not, in a single transaction or through a
series of transactions, consolidate with or merge with or into any
other Person or sell, assign, convey, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets to any
other Person or Persons or permit any of its Restricted Subsidiaries to
enter into any such transaction or series of transactions if such
transaction or series of transactions, in the aggregate, would result
in the sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries on a consolidated basis to
any other Person or Persons, unless at the time and immediately after
giving effect thereto (i) either (a) the Company will be the continuing
corporation or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company or such Restricted
Subsidiary is merged or the Person that acquires by sale, assignment,
conveyance, transfer, lease or disposition all or substantially all the
properties and assets of the Company and its Restricted Subsidiaries on
a consolidated basis (the "Surviving Entity") (1) will be a corporation
duly organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia and (2) will
expressly assume, by a supplemental indenture in form reasonably
satisfactory to the Trustee, the Company's obligation for the due and
punctual payment of the principal of, premium, if any, and interest on
all the Notes and the performance and observance of every covenant of
the Indenture on the part of the Company to be performed or observed,
(ii) immediately before and immediately after giving effect to
such transaction or series of transactions on a pro forma basis (and
treating any obligation of the Company or any Restricted Subsidiary
incurred in connection with or as a result of such transaction or
series of transactions as having been incurred at the time of such
transaction), no Default or Event of Default will have occurred and be
continuing, (iii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (on the assumption that the transaction or series of transactions
occurred on the first day of the four-quarter period immediately prior
to the consummation of such transaction or series of transactions with
the appropriate adjustments with respect to the transaction or series
of transactions being included in such pro forma calculation), the
Company (or the Surviving Entity if the Company is not the continuing
obligor under the Indenture) could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions
of Section 4.10 of the Indenture, (iv) immediately after giving effect
to
33
such transaction on a pro forma basis, the Consolidated Net Worth of
the Company (or the Surviving Entity if the Company is not the
continuing obligor under the Indenture) is equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and (v) each Note Guarantor, if any, unless it is the
other party to the transactions described above, shall have by
supplemental indenture confirmed that its Note Guarantee will apply to
such Person's obligations under the Indenture and the Notes.
In connection with any such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition, the
Company or the Surviving Entity shall have delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposition, and if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply
with the requirements of the Indenture and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Each Note Guarantor, if any (other than any Subsidiary whose
Note Guarantee is being released pursuant to the provisions under
Section 4.17 of the Indenture as a result of such transaction), shall
not, and the Company will not permit a Note Guarantor to, in a single
transaction or through a series of related transactions, merge or
consolidate with or into any other corporation or other entity (other
than the Company or any Note Guarantor), or sell, assign, convey,
transfer, lease or otherwise dispose of its properties and assets on a
consolidated basis substantially as an entirety to any entity (other
than the Company or any Note Guarantor) unless (i) either (a) such Note
Guarantor shall be the continuing corporation or partnership or (b) the
Person (if other than such Note Guarantor) formed by such consolidation
or into which such Note Guarantor is merged or the entity which
acquires by sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of
such Note Guarantor, as the case may be, shall be a corporation or
partnership organized and validly existing under the laws of the United
States, any state thereof or the District of Columbia, and shall
expressly assume by a supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations
of such Note Guarantor under the Notes and the Indenture, (ii)
immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default shall
have occurred and be continuing, and (iii) such Note Guarantor shall
have delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with the Indenture.
Section 5.2. Successor Person Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all
of the properties and assets
34
of the Company or any Note Guarantor in accordance with Section 5.1 of
the Indenture, the successor Person formed by such consolidation or
into which the Company or such Note Guarantor, as the case may be, is
merged or the successor Person to which such sale, assignment,
conveyance, transfer, lease or disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company or such Note Guarantor, as the case may be, under the Indenture
and/or the Note Guarantees, as the case may be, with the same effect as
if such successor had been named as the Company or such Note Guarantor,
as the case may be, herein and/or in the Note Guarantees, as the case
may be. When a successor assumes all the obligations of its predecessor
under this Indenture, the Notes or a Note Guarantee, as the case may
be, the predecessor shall be released from those obligations; provided
that in the case of a transfer by lease, the predecessor shall not be
released from the payment of principal and interest on the Notes or a
Note Guarantee, as the case may be.
Section 2.8. DEFAULTS AND REMEDIES.
(a) With respect to the Notes issued under this First
Supplemental Indenture, Section 6.1 of the Base Indenture, relating to the
Events of Default, shall be replaced in its entirety with the following:
Section 6.1. Events of Default.
Each of the following is an "Event of Default":
(a) default in the payment of any interest on any Note
when it becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment shall be prohibited by
the subordination provisions of Article XIII of the Indenture; or
(b) default in the payment of the principal of, or
premium, if any, on, any Note when the same becomes due and payable at
Maturity (upon acceleration, optional redemption, mandatory redemption,
required purchase or otherwise), whether or not such payment shall be
prohibited by the subordination provisions of Article XIII of the
Indenture; or
(c) default in the performance, or breach, of the
provisions described in Section 5.1 of the Indenture, the failure to
make or consummate a Change in Control Offer in accordance with the
provisions of Section 4.15 of the Indenture or the failure to make or
consummate an Excess Proceeds Offer in accordance with the provisions
of Section 4.11 of the Indenture; or
(d) default in the performance, or breach, of any
covenant or warranty of the Company or any Note Guarantor contained in
the Indenture or any Note Guarantee (other than a default in the
performance, or breach, of a covenant or warranty which is specifically
dealt with in clause (a), (b) or (c) of this Section 6.1) and
continuance of such default or breach for a period of 30 days after
written notice shall have been given to the Company by the Trustee or
to the
35
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding; or
(e) (A) one or more defaults in the payment of principal
of or premium, if any, on Indebtedness of the Company or any Restricted
Subsidiary aggregating $10,000,000 or more, when the same becomes due
and payable at the Stated Maturity thereof, and such default or
defaults shall have continued after any applicable grace period and
shall not have been cured or waived or (B) Indebtedness of the Company
or any Restricted Subsidiary aggregating $10,000,000 or more shall have
been accelerated or otherwise declared due and payable, or required to
be prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the Stated Maturity thereof; or
(f) one or more final, non-appealable judgments or orders
shall be rendered against the Company or any Restricted Subsidiary for
the payment of money, either individually or in an aggregate amount, in
excess of $10,000,000 (net of any amounts to the extent that they are
covered by insurance) and shall not be discharged or fully bonded and
there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, was not in effect; or
(g) any Note Guarantee of a Material Subsidiary or group
of Restricted Subsidiaries that, taken together, would constitute a
Material Subsidiary ceases to be in full force and effect or is
declared null and void or any Material Subsidiary or group of
Restricted Subsidiaries that, taken together, would constitute a
Material Subsidiary denies that it has any further liability under any
Note Guarantee, or gives notice to such effect (other than by reason of
the termination of this Indenture or the release of any such Note
Guarantee in accordance with this Indenture); or
(h) the Company or any Material Subsidiary or group of
Restricted Subsidiaries that, taken together, would constitute a
Material Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) shall admit in writing that its inability to
pay debts generally; or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
36
(i) is for relief against the Company or any
Material Subsidiary or group of Restricted Subsidiaries that,
taken together, would constitute a Material Subsidiary in an
involuntary case,
(ii) appoints a Custodian of the Company or any
Material Subsidiary or group of Restricted Subsidiaries that,
taken together, would constitute a Material Subsidiary or for
all or substantially all of the property of the Company or any
Material Subsidiary or group of Restricted Subsidiaries that,
taken together, would constitute a Material Subsidiary, or
(iii) orders the liquidation of the Company or any
Material Subsidiary or group of Restricted Subsidiaries that,
taken together, would constitute a Material Subsidiary, and
the order or decree remains unstayed and in effect for 60
consecutive days.
(b) With respect to the Notes issued under this First
Supplemental Indenture, all references in Section 6.2 of the Base Indenture to
"Section 6.1(f) or (g)" of the Base Indenture shall in each case be replaced
with a reference to "Section 6.1(h) or (i) of the Indenture."
Section 2.9. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
With respect to the Notes issued under this First Supplemental
Indenture, Article VIII of the Base Indenture shall apply, and the Company shall
have the option to effect Legal Defeasance or Covenant Defeasance pursuant to
Article VIII of the Base Indenture; provided, however, that with respect to the
Notes issued under this First Supplemental Indenture:
(a) notwithstanding anything to the contrary contained in
Section 8.3 of the Base Indenture, in connection with any Covenant
Defeasance, the Company shall be released only from its obligations
under Sections 4.2 and 4.3 of the Base Indenture, under Article V of
the Indenture and under Sections 4.8 through 4.18 of the Indenture;
(b) the final sentence of Section 8.3 of the Base
Indenture shall be replaced in its entirety with the following: "In
addition, upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3 of the Indenture, subject to the
satisfaction of the conditions set forth in Section 8.4 of the
Indenture, Sections 6.1(c) through 6.1(f) of the Indenture shall not
constitute Events of Default"; and
(c) the following Section shall replace Section 8.4 of
the Base Indenture in its entirety:
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or 8.3 of the Indenture to the outstanding Notes:
(a) the Company must irrevocably deposit or
cause to be deposited with the Trustee, as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Notes, money in
an amount,
37
or non-callable U.S. Government Obligations which through the
scheduled payment of principal and interest thereon will
provide money in an amount, or a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge the
principal of, premium, if any, and interest on the outstanding
Notes on the Stated Maturity (or upon redemption, if
applicable) of such principal, premium, if any, or installment
of interest;
(b) no Default or Event of Default will have
occurred and be continuing on the date of such deposit or,
insofar as an event of bankruptcy under clauses (h) and (i) of
Section 6.1 of the Indenture is concerned, at any time during
the period ending on the 91st day after the date of such
deposit;
(c) such Legal Defeasance or Covenant Defeasance
will not result in a breach or violation of, or constitute a
default under, the Indenture, the Senior Credit Agreement or
any other material agreement or instrument to which the
Company or any Subsidiary is a party or by which it is bound;
(d) in the case of an election under Section 8.2
of the Indenture, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling, or since the date of the final
prospectus supplement, there has been a change in applicable
federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of
the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred;
(e) in the case of an election under Section 8.3
of the Indenture, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of the Notes outstanding will not recognize income, gain or
loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had
not occurred;
(f) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that (i) the trust
funds will not be subject to any rights of holders of Senior
Indebtedness under the subordination provisions of Sections
13.1 through 13.13 of the Indenture and (ii) after the 91st
day following the deposit or after the date such opinion is
delivered, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit was
not made by the Company with the intent
38
of preferring the Holders of Notes or any Note Guarantee over
the other creditors of either the Company or any Note
Guarantor with the intent of hindering, delaying or defrauding
creditors of either the Company or any Restricted Subsidiary;
and
(h) the Company shall have delivered to the
Trustee an Officers' Certificate and an opinion of Counsel,
each stating that all conditions precedent provided for
relating to either the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with.
Section 2.10. AMENDMENTS
(a) With respect to the Notes issued under this First
Supplemental Indenture, Sections 9.1 through 9.3 of the Base Indenture shall be
replaced in their entirety with the following:
Section 9.1. Without Consent of Holders.
Notwithstanding Section 9.2, the Company and the Trustee may
(subject to Sections 13.13 and 13.14) amend or supplement the Indenture
or the Notes without notice to or the consent of any Holder of a Note:
(a) to evidence the succession of another Person to the Company, a Note
Guarantor or any other obligor on the Notes, and the assumption by any
such successor of the covenants of the Company or such obligor or Note
Guarantor in the Indenture and in the Notes and in any Note Guarantee
in accordance with Article V; (b) to add to the covenants of the
Company, any Note Guarantor or any other obligor upon the Notes for the
benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Company or any other obligor upon the Notes, as
applicable, in this Indenture, in the Notes or in any Note Guarantee;
(c) to cure any ambiguity, or to correct or supplement any provision in
this Indenture, the Notes or any Note Guarantee which may be defective
or inconsistent with any other provision in this Indenture, the Notes
or any Note Guarantee or make any other provisions with respect to
matters or questions arising under the Indenture, the Notes or any Note
Guarantee; provided that, in each case, such provisions shall not
adversely affect the interest of the Holders of the Notes; (d) to
comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; (e) to add
a Note Guarantor under the Indenture; (f) to evidence and provide the
acceptance of the appointment of a successor Trustee under the
Indenture; (g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders of the
Notes as additional security for the payment and performance of the
Company's and any Note Guarantor's obligations under the Indenture, in
any property, or assets, including any of which are required to be
mortgaged, pledged or hypothecated, or in which a security is required
to be granted to the Trustee pursuant to this Indenture or otherwise;
or (h) to execute the First Supplemental Indenture or any subsequent
supplemental indenture substantially in the form thereof.
39
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 7.2 of the Indenture, the Trustee shall
join with the Company and the Note Guarantors in the execution of any
amended or supplemental Indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not
be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or
otherwise.
Section 9.2. With Consent of Holders.
Except as provided below in this Section 9.2 and in Sections
9.3, 13.13 and 13.14, the Company and the Trustee may amend or
supplement this Indenture (including Sections 4.11 and 4.15) or the
Notes and/or any Note Guarantees with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding
voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, tender offer or exchange
offer for, Notes), and, subject to Sections 6.8 and 6.13, any existing
Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture, the
Notes or the Note Guarantees may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, tender
offer or exchange offer for, Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 7.2 of the Indenture, the Trustee shall
join with the Company and the Note Guarantors in the execution of any
amended or supplemental Indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not
be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or
otherwise.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not,
40
however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.8, 6.13 and
9.3 of the Indenture, the Holders of a majority in aggregate principal
amount of the Notes then outstanding voting as a single class may waive
compliance in a particular instance by the Company and/or the Note
Guarantors with any provision of this Indenture, the Notes or the Notes
Guarantees.
Section 9.3. Limitations.
Without the consent of each Holder of Notes affected, an
amendment or waiver may not (with respect to any Securities held by a
non-consenting Holder of Notes):
(a) change the Stated Maturity of the principal
of, or any installment of interest on, any Note, or reduce the
principal amount thereof, or premium, if any, or the rate of
interest thereon or change the coin or currency in which the
principal of any Note or any premium or the interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity
thereof (or, in the case of redemption, on or after the
redemption date);
(b) following the occurrence of an Asset Sale,
amend, change or modify the obligation of the Company to make
and consummate an Excess Proceeds Offer with respect to any
Asset Sale in accordance with Section 4.11 of the Indenture,
including amending, changing or modifying any definition
relating thereto in any manner materially adverse to the
Holders of the Notes affected thereby;
(c) following the occurrence of a Change in
Control, amend, change or modify the obligation of the Company
to make and consummate a Change in Control Offer in the event
of a Change in Control in accordance with Section 4.15 of the
Indenture, including amending, changing or modifying any
definition relating thereto in any manner materially adverse
to the Holders of the Notes affected thereby;
(d) reduce the percentage in principal amount of
outstanding Notes, the consent of whose Holders is required
for any such supplemental indenture or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of the Indenture;
(e) modify any of the provisions relating to
supplemental indentures requiring the consent of Holders or
relating to the waiver of past defaults or relating to the
waiver of certain covenants, except to increase the percentage
of outstanding Notes required for such actions or to provide
that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each
Note affected thereby; or
(f) amend or modify any of the provisions of
this Indenture relating to any Note Guarantee in any manner
adverse to the Holders of the Notes.
41
In addition, any amendment to, or waiver of, the provisions of
Section 13.1 through 13.14 of this Indenture (including the related
definitions) that adversely affects the rights of the Holders of the
Notes will require the consent of the Holders of at least 66-2/3% in
aggregate principal amount of the Notes then outstanding.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.3 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
Section 2.11. SUBSIDIARY GUARANTEES.
With respect to the Notes issued under this First Supplemental
Indenture, Article XII of the Base Indenture shall apply to the extent that any
Restricted Subsidiary shall guarantee the Notes in accordance with Section 4.17
of the Indenture, and the Notes shall constitute a Series to be guaranteed by
any such Note Guarantors pursuant to Article XII of the Base Indenture.
Section 2.12. SUBORDINATION.
With respect to the Notes issued under this First Supplemental
Indenture and any Note Guarantee relating to such Notes, Sections 13.1 through
13.14 of the Base Indenture shall apply, and the Notes and any such Note
Guarantee shall be subject to subordination pursuant to such Sections of the
Base Indenture.
ARTICLE III.
MISCELLANEOUS
Section 3.1. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 3.2. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this First Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 3.3. SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
42
Section 3.4. GOVERNING LAW.
This First Supplemental Indenture and the Notes created hereby
shall be governed by the laws of the State of New York applicable to agreements
made and to be performed in such state.
Section 3.5. FIRST SUPPLEMENT TO SUPERSEDE BASE INDENTURE.
The Base Indenture, as supplemented by the First Supplemental
Indenture, remains in full force and effect as of the date hereof.
Notwithstanding the foregoing, to the extent that any provision of the Base
Indenture shall conflict with any provision of this First Supplemental
Indenture, the terms of this First Supplemental Indenture shall be deemed
controlling and the conflicting provision of the Base Indenture shall be null
and void to the extent of such conflict.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
43
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed, and attested, all as of the date and
year first written above.
PROVINCE HEALTHCARE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Operating
Officer
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Trust Officer
[First Supplemental Indenture Signature Page]
EXHIBIT A
[Face of Note]
7 1/2% Senior Subordinated Notes due 2013
CUSIP No. 743977 AF 7 $200,000,000
PROVINCE HEALTHCARE COMPANY
promises to pay to Cede & Co. or registered assigns, the principal sum of TWO
HUNDRED MILLION DOLLARS ($200,000,000) on June 1, 2013.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: May 27, 2003
PROVINCE HEALTHCARE COMPANY
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
[SEAL]
This is one of the Notes
referred to in the within-
mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Authorized Signature
A-1
[Back of Note]
7 1/2% Senior Subordinated Notes due 2013
[INSERT IN GLOBAL NOTES] [This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered in
the name of the Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a Person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and may not be transferred except as a whole by the Depository to a
nominee of the Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.]
Unless and until it is exchanged in whole or in part for Notes
in definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be 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.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Province Healthcare Company, a Delaware
corporation (the "Company") promises to pay interest on the principal amount of
this Note at 7 1/2% per annum from May 27, 2003 until June 1, 2013. The Company
shall pay interest, semi-annually in arrears on June 1 and December 1 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be December 1, 2003.
The Company shall pay interest (including post-petition interest to the extent
allowed in any proceeding under any Bankruptcy Law) on overdue principal from
time to time on demand at a rate equal to the per annum rate on the Notes then
in effect; it shall pay interest (including post-petition interest to the extent
allowed in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
A-2
2. METHOD OF PAYMENT. The Company will pay principal,
premium, if any, and interest on the Notes in money of the United States that at
the time of payment is legal tender for payment of public and private debts. The
Company, however, may pay principal, premium, if any, and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. PAYING AGENT, REGISTRAR AND SERVICE AGENT. Initially,
U.S. Bank Trust National Association, the Trustee under the Indenture, will act
as Paying Agent, Registrar and Service Agent. The Notes may be presented for
registration of transfer and exchange at the offices of the Registrar. The
Company may change any Paying Agent, Service Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an
Indenture dated as of May 27, 2003 (the "Base Indenture") as supplemented by a
First Supplemental Indenture dated as of May 27, 2003 (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture") among the
Company and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes issued under the
Indenture are subordinated unsecured obligations of the Company limited to
$200,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in paragraph (b) of this Section
5, the Company shall not have the option to redeem the Notes pursuant to this
Section 5 prior to June 1, 2008. On or after June 1, 2008, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 1, of the years
indicated below (subject to the right of Holders of record on relevant record
dates to receive interest due on an interest payment date):
Year Redemption Price
---- ----------------
2008 103.750%
2009 102.500%
2010 101.250%
2011 and thereafter 100.000%
(b) Notwithstanding the provisions of paragraph (a) of
this Section 5, at any time and from time to time prior to June 1, 2006, the
Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes originally issued hereunder within 60 days of one or
more Public Equity Offerings with the net proceeds of such offering at a
redemption price of 107.500% of the principal amount thereof, plus accrued and
A-3
unpaid interest thereon, if any, to the redemption date (subject to the right of
Holders of record on relevant record dates to receive interest due on an
interest payment date); provided that, after giving effect to any such
redemption, at least 65% of the original aggregate principal amount of the Notes
remains outstanding.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of the Notes to be
redeemed at such Holder's address of record. The Notes in denominations larger
than $1,000 may be redeemed in part but only in integral multiples of $1,000,
unless all the Notes held by a Holder are to be redeemed. In the event of a
redemption of less than all of the Notes, the Notes will be chosen for
redemption by the Trustee in accordance with the Indenture. On and after the
redemption date, interest ceases to accrue on the Notes or portions of them
called for redemption.
If this Note is redeemed subsequent to a Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the Person in
whose name this Note is registered at the close of business on such Record Date.
7. MANDATORY REDEMPTION. Except as set forth in
paragraph 8 below, the Company shall not be required to repurchase or to make
mandatory redemption payments with respect to the Notes. There are no sinking
fund payments with respect to the Notes.
8. REPURCHASE AT OPTION OF HOLDER. This Note is subject
to repurchase by the Company at the option of the Holder upon the circumstances
set forth in Sections 4.11 and 4.15 of the Indenture.
9. SUBORDINATION. The payment of the Principal of,
premium, if any interest on and any other payment obligations of any kind
evidenced by the Notes and the Indenture (including any obligations to
repurchase the Notes) is subordinated in right of payment to all existing and
future Senior Indebtedness of the Company, as described in the Indenture. Each
Holder, by accepting a Note, agrees to such subordination and authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and appoints the Trustee
as its attorney-in-fact for such purpose.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a
A-4
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture with respect to the Notes or the Notes may be amended
or supplemented with the written consent of the Holders of a majority in
principal amount of the Notes and any existing default or compliance with any
provision of the Indenture with respect to the Notes or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the Notes
(including, in each case, Additional Notes, if any). Without the consent of any
Holder of the Notes, the Indenture with respect to the Notes or the Notes may be
amended or supplemented to, in addition to other events more fully described in
the Indenture, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, provide
for the assumption of the Company's obligations to Holders of the Notes in the
case of a merger or consolidation, make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA.
13. DEFAULTS AND REMEDIES. An Event of Default with
respect to the Notes occurs upon the occurrence of any of the following events:
(a) default in the payment of any interest on any Note when it becomes due and
payable, and continuance of such default for a period of 30 days, whether or not
such payment shall be prohibited by the subordination provisions of Article XIII
of the Indenture; (b) default in the payment of the principal of, or premium, if
any, on, any Note when the same becomes due and payable at Maturity (upon
acceleration, optional redemption, mandatory redemption, required purchase or
otherwise), whether or not such payment shall be prohibited by the subordination
provisions of Article XIII of the Indenture; (c) default in the performance, or
breach, of the provisions described in Section 5.1 of the Indenture, the failure
to make or consummate a Change in Control Offer in accordance with the
provisions of Section 4.15 of the Indenture or the failure to make or consummate
an Excess Proceeds Offer in accordance with the provisions of Section 4.11 of
the Indenture; (d) default in the performance, or breach, of any covenant or
warranty of the Company or any Note Guarantor contained in the Indenture or any
Note Guarantee (other than a default in the performance, or breach, of a
covenant or warranty which is specifically dealt with in clause (a), (b) or (c)
hereof) and continuance of such default or breach for a period of 30 days after
written notice shall have been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding; (e) (A) one or more defaults in the
payment of principal of or premium, if any, on Indebtedness of the Company or
any Restricted Subsidiary aggregating $10,000,000 or more, when the same becomes
due and payable at the Stated Maturity thereof, and such default or defaults
shall have continued after any applicable grace period and shall not have been
cured or waived or (B) Indebtedness of the Company or any Restricted Subsidiary
aggregating $10,000,000 or more shall have been accelerated or otherwise
declared due and payable, or required to be prepaid or repurchased (other than
by regularly scheduled required prepayment) prior to the Stated Maturity
thereof; (f) one or more final, non-appealable judgments or orders shall be
rendered against the
A-5
Company or any Restricted Subsidiary for the payment of money, either
individually or in an aggregate amount, in excess of $10,000,000 (net of any
amounts to the extent that they are covered by insurance) and shall not be
discharged or fully bonded and there shall have been a period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, was not in effect; (g) any Note Guarantee of a
Material Subsidiary or group of Restricted Subsidiaries that, taken together,
would constitute a Material Subsidiary ceases to be in full force and effect or
is declared null and void or any Material Subsidiary or group of Restricted
Subsidiaries that, taken together, would constitute a Material Subsidiary denies
that it has any further liability under any Note Guarantee, or gives notice to
such effect (other than by reason of the termination of this Indenture or the
release of any such Note Guarantee in accordance with this Indenture); or (h)
certain events of bankruptcy or insolvency with respect to the Company or any
Material Subsidiary or group of Restricted Subsidiaries that, taken together,
would constitute a Material Subsidiary.
If an Event of Default with respect to Securities of any
Series at the time outstanding occurs and is continuing (other than an Event of
Default referred to in clause (h) of the foregoing paragraph), then in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Securities of that Series may declare the principal amount (or,
if any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of,
premium, if any, and accrued and unpaid interest, if any, on all of the
Securities of that Series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and accrued and
unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in clause (h) of the foregoing paragraph shall occur, the
principal amount (or specified amount) of, premium, if any, and accrued and
unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default and what action the Company is taking or proposes to take
thereto.
14. SUBSIDIARY GUARANTEES. Payment of principal of,
premium, if any, and interest (including interest on overdue principal, if any,
and interest, if lawful) on the Notes may be guaranteed under certain
circumstances on an unsecured, senior subordinated basis by the Note Guarantors
pursuant to Section 4.17 and Article XII of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services
A-6
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator or stockholder, as such, of the
Company or any Note Guarantor shall have any liability for any obligations of
the Company or any Note Guarantor under the Notes, the Subsidiary Guarantees or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Note and the related
Subsidiary Guarantees waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
17. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Province Healthcare Company
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: [_____________]
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: _______________
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the face of this Note)
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.11 or 4.15 of the Indenture, check the box below:
/ / Section 4.11
/ / Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.15 of the Indenture, state the amount you
elect to have purchased: $____________
Date: _____________________ Your Signature: ______________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.: _______________________
A-9
SCHEDULE OF EXCHANGES OF NOTES*
The following exchanges of a part of this Global Note for
other Notes have been made:
Principal Amount of
Amount of Amount of this Global Note Signature of
decrease in increase in following such authorized officer
Principal Amount Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase Service Agent
---------------- ------------------- ------------------- -------- -------------
-----------------
*This schedule should be included only if the Note is issued in global form.
A-10
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of ___________, _____ among ___________ (the "Guaranteeing Subsidiary"), a
subsidiary of Province Healthcare Company (or its successor), a Delaware
corporation (the "Company"), the Company, and U.S. Bank Trust National
Association, a national banking association organized and existing under the
laws of the United States of America, as trustee under the Indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture, dated as of May 27, 2003, as supplemented by the First
Supplemental Indenture, dated as of May 27, 2003 (the indenture, as so
supplemented, the "Indenture") providing for the issuance of an aggregate
principal amount of up to $200,000,000 of 7 1/2% Senior Subordinated Notes due
2013 (the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's obligations under the Notes
and the Indenture on the terms and conditions set forth herein and therein (the
"Note Guarantee"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary
hereby agrees that its obligations to the Holder and the Trustee pursuant to
this Note Guarantee shall be as expressly set forth in Article XII of the
Indenture and in such other provisions of the Indenture as are applicable to the
Note Guarantors (including, without limitation, Article XIII of the Indenture),
and reference is made to the Indenture for the precise terms of this
Supplemental Indenture. The terms of Article XII of the Indenture and such other
provisions of the Indenture (including, without limitation, Article XIII of the
Indenture) as are applicable to the Note Guarantors are incorporated herein by
reference.
B-1
3. EXECUTION AND DELIVERY OF NOTE GUARANTEES.
(a) If an officer whose signature is on this Supplemental
Indenture no longer holds that office at the time the Trustee authenticates the
Note, the Note Guarantee shall be valid nevertheless.
(b) The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of the
Note Guarantee set forth in this Supplemental Indenture on behalf of the
Guaranteeing Subsidiary.
4. RELEASE OF SUBSIDIARY GUARANTEE.
The Note Guarantee shall be released:
(a) in connection with any sale or other disposition of
all or substantially all of the assets of the Guaranteeing Subsidiary
(including by way of merger or consolidation), if the Company applies
the Excess Proceeds of that sale or other disposition in accordance
with the applicable provisions of this Indenture, including, without
limitation, Section 4.11 and Sections 13.1 through 13.14 thereof;
(b) in connection with any sale of all of the Capital
Stock of the Guaranteeing Subsidiary to any Person that is not an
Affiliate of the Company, if the Company applies the Excess Proceeds of
that sale in accordance with the applicable provisions of the
Indenture, including, without limitation, Section 4.11 and Sections
13.1 through 13.13 thereof; or
(c) if the Company designates the Guaranteeing Subsidiary
as an Unrestricted Subsidiary in accordance with the Indenture.
The Trustee will provide any written confirmation or evidence
of the termination of such Note Guarantee as reasonably required by the
representative.
Any Note Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Note Guarantor under
this Indenture as provided in this Article.
5. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator or stockholder of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Note Guarantor (including the Guaranteeing Subsidiary)
under the Notes, any Subsidiary Guarantee, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
6. GOVERNING LAW. This Supplemental Indenture shall be
governed by the laws of the State of New York applicable to agreements made and
to be performed in such state.
B-2
7. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are
for convenience only and shall not affect the construction hereof.
9. THE TRUSTEE. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
B-3
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: ___________, 20__
[GUARANTEEING SUBSIDIARY]
By: ___________________________________
Name:
Title:
[COMPANY]
By: ___________________________________
Name:
Title:
[TRUSTEE], as Trustee
By: ___________________________________
Authorized Signatory
B-4
