================================================================================
INTEGRATED HEALTH SERVICES, INC.,
A DELAWARE CORPORATION,
AS ISSUER
TO
SIGNET TRUST COMPANY,
AS TRUSTEE
--------------------
SECOND AMENDED AND RESTATED SUPPLEMENTAL INDENTURE
Dated as of May 15, 1997
------------------
$115,000,000
9 5/8% Senior Subordinated Notes due 2002
9 5/8% Senior Subordinated Notes due 2002, Series A
================================================================================
CROSS REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1) ..................................... 7.9
(a)(2) ..................................... 7.9
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(a)(5) ..................................... 7.9
(b) ..................................... 7.9
(c) ..................................... Not Applicable
311(a) ..................................... **
(b) ..................................... **
(c) ..................................... Not Applicable
312 ..................................... **
313(a) ..................................... **
(b)(1) ..................................... Not Applicable
(b)(2) ..................................... **
(c) ..................................... **
(d) ..................................... **
314(a) ..................................... 4.3,4.4
(b) ..................................... Not Applicable
(c)(1) ..................................... 11.3
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 11.4
(f) ..................................... Not Applicable
315(a) ..................................... 7.1(2)
(b) ..................................... 7.5,11.2
(c) ..................................... 7.1(1)
(d) ..................................... 7.1(3)
(e) ..................................... 6.11
316(a)(last sentence) ..................................... 2.8
(a)(1)(A) ..................................... .6.5
(a)(1)(B) ..................................... .6.4
(a)(2) ..................................... Not Applicable
(b) ..................................... 6.7
(c) ..................................... 9.4
317(a)(1) ..................................... 6.8
(a)(2) ..................................... 6.9
(b) ..................................... 2.4
318(a) ..................................... 11.1
--------
* This Cross-Reference Table is not part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions................................................................. 1
Section 1.2 Other Definition............................................................ 9
Section 1.3 Incorporation by Reference of Trust Indenture Act........................... 9
Section 1.4 Rules of Construction....................................................... 9
ARTICLE 2.
THE SECURITIES
Section 2.1 Form and Dating............................................................. 10
Section 2.2 Execution and Authentication................................................ 10
Section 2.3 Registrar and Paying Agent.................................................. 11
Section 2.4 Paying Agent to Hold Money in Trust......................................... 11
Section 2.5 Registration of Transfer and Exchange....................................... 11
Section 2.6 Replacement Securities...................................................... 15
Section 2.7 Outstanding Securities...................................................... 15
Section 2.8 Treasury Securities......................................................... 15
Section 2.9 Temporary Securities........................................................ 16
Section 2.10 Cancellation................................................................ 16
Section 2.11 Defaulted Interest.......................................................... 16
Section 2.12 Securities Issuable in the Form of a Global Security........................ 16
ARTICLE 3.
COVENANTS
Section 3.1 Payment of Securities....................................................... 17
Section 3.2 Maintenance of Office or Agency............................................. 18
Section 3.3 SEC Reports................................................................. 18
Section 3.4 Compliance Certificate...................................................... 18
Section 3.5 Corporate Existence, Taxes, etc............................................. 19
Section 3.6 Stay, Extension and Usury Laws.............................................. 19
Section 3.7 Change in Control........................................................... 19
Section 3.8 Limitations on Asset Sales.................................................. 20
ARTICLE 4.
SUCCESSORS
Section 4.1 Limitations on Mergers and Consolidations................................... 21
Section 4.2 Successor Corporation Substituted........................................... 21
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.1 Events of Default........................................................... 21
Section 5.2 Acceleration................................................................ 23
Section 5.3 Other Remedies.............................................................. 23
Section 5.4 Waiver of Past Defaults..................................................... 23
Section 5.5 Control by Majority......................................................... 23
Section 5.6 Limitations on Suits........................................................ 24
Section 5.7 Rights of Holders to Receive Payment........................................ 24
i
Page
Section 5.8 Collection Suit by Trustee................................................. 24
Section 5.9 Trustee May File Proofs of Claim........................................... 24
Section 5.10 Priorities................................................................. 25
Section 5.11 Undertaking for Costs...................................................... 25
ARTICLE 6.
TRUSTEE
Section 6.1 Duties of Trustee.......................................................... 25
Section 6.2 Rights of Trustee.......................................................... 26
Section 6.3 Individual Rights of Trustee............................................... 27
Section 6.4 Trustee's Disclaimer....................................................... 27
Section 6.5 Notice of Defaults......................................................... 27
Section 6.6 Compensation and Indemnity................................................. 27
Section 6.7 Replacement of Trustee..................................................... 28
Section 6.8 Successor Trustee by Merger, etc........................................... 28
Section 6.9 Eligibility; Disqualification.............................................. 28
ARTICLE 7.
DISCHARGE OF INDENTURE
Section 7.1 Termination of Company's Obligations....................................... 29
Section 7.2 Application of Trust Money................................................. 31
Section 7.3 Repayment to the Company................................................... 31
Section 7.4 Reinstatement.............................................................. 31
ARTICLE 8.
AMENDMENTS
Section 8.1 Without Consent of Holders................................................. 32
Section 8.2 With Consent of Holders.................................................... 32
Section 8.3 Compliance with Trust Indenture Act........................................ 33
Section 8.4 Revocation and Effect of Consents.......................................... 33
Section 8.5 Notation on or Exchange of Securities...................................... 34
Section 8.6 Trustee to Sign Amendments, etc............................................ 34
ARTICLE 9.
SUBORDINATION
Section 9.1 Securities Subordinated to Senior Indebtedness............................. 34
Section 9.2 Payment Over of Proceeds Upon Dissolution, Etc............................. 34
Section 9.3 Prior Payment to Senior Indebtedness Upon Acceleration of Securities
.......................................................................... 35
Section 9.4 No Payment Upon Certain Defaults with Respect to Senior Indebtedness
.......................................................................... 36
Section 9.5 Payment Permitted If No Default............................................ 37
Section 9.6 Subrogation to Rights of Holders of Senior Indebtedness.................... 37
Section 9.7 Provisions Solely to Define Relative Rights................................ 37
Section 9.8 Application by Trustee of Monies Deposited With It......................... 38
Section 9.9 Trustee to Effectuate Subordination........................................ 38
Section 9.10 No Waiver of Subordination Provisions...................................... 38
Section 9.11 Notice to Trustee.......................................................... 39
Section 9.12 Reliance on Judicial Order or Certificate of Liquidating Agent............. 40
Section 9.13 Trustee Not Fiduciary for Holders of Senior Indebtedness................... 40
ii
Page
Section 9.14 Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights........................................................... 40
iii
Page
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls............................................... 41
Section 10.2 Notices.................................................................... 41
Section 10.3 Certificate and Opinion as to Conditions Precedent......................... 42
Section 10.4 Statements Required in Certificate or Opinion.............................. 42
Section 10.5 Rules by Trustee and Agents................................................ 42
Section 10.6 Legal Holidays............................................................. 42
Section 10.7 No Recourse Against Others................................................. 42
Section 10.8 Governing Law.............................................................. 43
Section 10.9 No Adverse Interpretation of Other Agreements.............................. 43
Section 10.10 Successors................................................................. 43
Section 10.11 Severability............................................................... 43
Section 10.12 Counterpart Originals...................................................... 43
Section 10.13 Trustee as Paying Agent and Registrar...................................... 43
Section 10.14 Table of Contents, Headings, etc........................................... 43
Section 10.15 Effective Date............................................................. 43
SIGNATURES................................................................................. 44
EXHIBIT A FORM OF RULE 144A NOTE
EXHIBIT B FORM OF SERIES A NOTE
EXHIBIT C TRANSFER CERTIFICATION
iv
SECOND AMENDED AND RESTATED SUPPLEMENTAL INDENTURE dated as of May 15,
1997, between INTEGRATED HEALTH SERVICES, INC., a Delaware corporation (the
"Company"), and SIGNET TRUST COMPANY, a Virginia corporation, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company duly authorized the issue of its 9 5/8% Senior Subordinated
Notes due 2002 (the "Rule 144A Notes") in the aggregate principal amount of
$115,000,000, and to provide the terms and conditions upon which the Rule 144A
Notes were authenticated, issued and delivered the Company and the Trustee
entered into an Indenture dated as of May 15, 1995 with regard to the Rule 144A
Notes.
The Company and the Trustee subsequently amended, restated and supplemented
said Indenture (the "Amended and Restated Supplemental Indenture") to permit the
issuance of the Company's 9 5/8% Senior Subordinated Notes due 2002, Series A
(the "Series A Notes" and collectively with the Rule 144A Notes, the
"Securities"), having the same terms as the Rule 144A Notes except that the
Series A Notes are registered under the Securities Act (as hereinafter defined),
in exchange for the Rule 144A Notes pursuant to the Exchange Offer (as
hereinafter defined).
On June 13, 1996, the Company, with the consent of Holders of not less than
a majority in principal amount of the Outstanding Securities executed a
Supplemental Indenture amending the Amended and Restated Supplemental Indenture
(such Indenture, as amended, restated and supplemented through the date hereof,
the "Original Indenture").
The Company by Board Resolution has authorized, and the Holders of not less
than a majority in principal amount of the Company's Outstanding Securities have
by consents delivered to the Trustee consented to, the execution and delivery of
this Second Amended and Restated Supplemental Indenture amending and restating
the Original Indenture.
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Allowed and Disallowed Post-Commencement Interest and Expenses" means all
interest, at the rate provided in the applicable document or documents
(including any rate applicable upon any default or event of default, to the
extent lawful), and all reimbursements, costs, expenses and indemnities, to the
extent provided in the applicable document or documents, accruing or claimed at
any time after commencement of any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization, dissolution,
winding up, assignment for the benefit of creditors, marshalling of assets and
liabilities or other similar case or proceeding, whether or not such interest,
reimbursement, cost or expense is an allowed claim enforceable against the
Company in a case or proceeding under Bankruptcy Law or in any other such case
or proceeding.
"Asset Sale" for any Person means the sale, lease, conveyance or other
disposition (including, without limitation, by merger or consolidation, and
whether by operation of law or otherwise) of any of that Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the date hereof or hereafter acquired, in one transaction or a
series of related transactions, in which such Person and/or its Subsidiaries
sell, lease, convey or otherwise dispose of (i) all or substantially all of the
Capital Stock of any of such Person's Subsidiaries, (ii) assets which constitute
substantially all of an operating unit or business of such Person or any of its
Subsidiaries, or (iii) any health care facility; provided, however, that the
following shall not constitute Asset Sales: (a) a transaction or series of
related transactions that results in a Change in Control, or (b) transactions
between the Company and any of its Wholly Owned Subsidiaries or among such
Wholly Owned Subsidiaries or (c) transactions in which either (x) the fair
market value of the asset disposed of does not exceed 2.5% of the Consolidated
Tangible Assets of the Company or (y) the Consolidated EBITDA of the company
associated with the asset disposed of does not exceed 2.5% of the Consolidated
EBITDA of the Company.
"Attributable Indebtedness," when used with respect to any Sale and
Leaseback Transaction or an operating lease with respect to a health care
facility means, as at the time of determination, the present value (discounted
at a rate equivalent to the interest rate implicit in the lease, compounded on a
semi-annual basis) of the total obligations of the lessee for rental payments,
after excluding all amounts required to be paid on account of maintenance and
repairs, insurance, taxes, utilities and other similar expenses payable by the
lessee pursuant to the terms of the lease, during the remaining term of the
lease included in any such Sale and Leaseback Transaction or such operating
lease or until the earliest date on which the lessee may terminate such lease
without penalty or upon payment of a penalty (in which case the rental payments
shall include such penalty); provided, that the Attributable Indebtedness with
respect to a Sale and Leaseback Transaction shall be no less than the fair
market value of the property subject to such Sale and Leaseback Transaction.
"Bank Agent" means Citicorp USA, Inc., as Administrative Agent for the
Lenders, or any successor under the Credit Agreement.
"Bank Debt" means all obligations of the Company and its Subsidiaries, now
or hereafter existing under the Credit Agreement, whether for principal,
interest, reimbursement of amounts drawn under letters of credit issued pursuant
thereto, guarantees in respect thereof, fees, expenses, premiums, indemnities or
otherwise, including such obligations incurred by the Company or its
Subsidiaries in connection with any extension, refunding, refinancing or
replacement of, or successor to, the Credit Agreement.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable), participation or
other equivalents of or interests in (however designated) the equity (including,
without limitation, common stock, preferred stock and partnership and joint
venture interests) of such Person (excluding any debt securities that are
convertible into, or exchangeable for, such equity).
-2-
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Change in Control" means any of the following: (i) the sale, lease,
conveyance or other disposition of all or substantially all of the Company's
assets as an entirety or substantially as an entirety to any Person or "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) (other than to a
Permitted Holder) in one or a series of transactions; (ii) stockholders of the
Company shall approve any plan or proposal for the liquidation or dissolution of
the Company; (iii) consummation of any consolidation or merger of the Company
(a) in which the Company is not the continuing or surviving corporation (other
than a consolidation or merger with a Wholly Owned Subsidiary of the Company in
which all shares of Common Stock outstanding immediately prior to the
effectiveness thereof are changed into or exchanged for the same consideration)
or (b) pursuant to which the Common Stock would be converted into cash,
securities or other property, in each case other than a consolidation or merger
of the Company in which the holders of the Common Stock immediately prior to the
consolidation or merger have, directly or indirectly, at least a majority of the
common stock of the continuing or surviving corporation immediately after such
consolidation or merger; or (iv) any transaction or series of transactions (as a
result of a tender offer, merger, consolidation or otherwise) that results in
any Person (other than a Permitted Holder), including a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) that includes such Person,
acquiring "beneficial ownership" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 50% or more of the aggregate voting power of
all classes of capital stock of the Company entitled to vote generally in the
election of directors of the Company.
"Common Equity" of any Person means all Capital Stock of such Person that
is generally entitled to (i) vote in the election of directors of such Person or
(ii) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Company" means (i) Integrated Health Services, Inc., a Delaware
corporation, and (ii) any successor of Integrated Health Services, Inc.
"Consolidated Amortization Expense" of any Person for any period means the
amortization expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Depreciation Expense" of any Person for any period means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income before extraordinary losses and
losses realized in connection with Asset Sales, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other non-cash items reducing Consolidated Net Income of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, and
less all non-cash items increasing Consolidated Net Income of such Person and
its Subsidiaries, determined on a consolidated basis in accordance with GAAP, in
each case, for such Person's prior four full fiscal quarters for which financial
results have been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" of any Person for any period means the
provision for taxes based on income and profits of such Person and its
Subsidiaries to the extent such income or profits were included in computing
Consolidated Net Income of such Person for such period.
-3-
"Consolidated Interest Expense" of any Person for any period means the
Interest Expense of such Person and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP, plus any dividends accrued for
such period on any Preferred Stock of any Subsidiary not held by the Company or
any Wholly Owned Subsidiary.
"Consolidated Net Income" of any Person for any period means the net income
(or loss) of such Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, without giving effect to dividends
on any series of preferred stock of any Subsidiary of such Person, whether or
not in cash, to the extent such consolidated net income was reduced thereby;
provided that there shall be excluded from such net income (to the extent
otherwise included therein), without duplication: (i) the net income (or loss)
of any Person (other than a Subsidiary of the referent Person) in which any
Person other than the referent Person has an ownership interest, except to the
extent that any such income has actually been received by the referent Person or
any of its Wholly Owned Subsidiaries in the form of dividends or similar
distributions during such period; (ii) except to the extent includible in the
consolidated net income of the referent Person pursuant to the foregoing clause
(i), the net income (or loss) of any Person that accrued prior to the date that
(a) such Person becomes a Subsidiary of the referent Person or is merged into or
consolidated with the referent Person or any of its Subsidiaries or (b) the
assets of such Person are acquired by the referent Person or any of its
Subsidiaries; (iii) the net income of any Subsidiary of the referent Person
(other than a Wholly Owned Subsidiary) to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary during such period; (iv) any gain (but not loss),
together with any related provisions for taxes on any such gain, realized during
such period by the referent Person or any of its Subsidiaries upon (a) the
acquisition of any securities, or the extinguishment of any Indebtedness, of the
referent Person or any of its Subsidiaries or (b) any Asset Sale by the referent
Person or any of its Subsidiaries; (v) any extraordinary gain (but not
extraordinary loss), together with any related provision for taxes on any such
extraordinary gain, realized by the referent Person or any of its Subsidiaries
during such period; and (vi) in the case of a successor to such Person by
consolidation, merger or transfer of its assets, any earnings of the successor
prior to such merger, consolidation or transfer of assets.
"Consolidated Tangible Assets" of any Person as of any date means the total
assets of such Person and its Subsidiaries (excluding any assets that would be
classified as "intangible assets" under GAAP) on a consolidated basis at such
date, as determined in accordance with GAAP, less all write-ups (other than
write-ups in connection with acquisitions) subsequent to the date of this
Indenture in the book value of any asset (except any such intangible assets)
owned by such Person or any of its Subsidiaries.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.2 or such other address as the Trustee may give
notice to the Company.
"Credit Agreement" means the Revolving Credit and Term Loan Agreement,
dated as of April 20, 1995, among the Company, the Bank Agent, and the other
financial institutions signatory thereto, together with the related documents
thereto, including, without limitation, any security documents and all exhibits
and schedules thereto, and any agreement or agreements relating to any
extension, refunding, refinancing, successor or replacement facility, whether or
not with the same lenders, and whether or not the principal amount or amount of
letters of credit outstanding thereunder or the interest rate payable in respect
thereof shall be thereby increased, in each case as amended and in effect from
time to time.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Definitive Securities" means any Securities other than a Global Security.
-4-
"Depositary" means, with respect to Securities issuable or issued in whole
or in part in global form hereunder, unless otherwise specified by the Company
pursuant to Section 2.12, The Depository Trust Company, New York, New York, or
any successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer the Company is to make pursuant to the
Registration Rights Agreement to exchange Rule 144A Notes for Series A Notes.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect from time to time.
"Global Security" means a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and pursuant to
a written order of the Company, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all of the Securities or
any portion thereof, but not including any Securities that are no longer
outstanding, and having the same terms, including, without limitation, the same
original issue date, date or dates on which principal is due, and rate of
interest.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, by agreement to keepwell, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person at any date means, without duplication: (i)
all Bank Debt; (ii) all other Indebtedness of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof); (iii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iv) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (v) all
obligations of such Person with respect to Hedging Obligations (other than those
that fix the interest rate on variable rate indebtedness otherwise permitted by
this Indenture or that protect the Company and/or its Subsidiaries against
changes in foreign exchange rates); (vi) all obligations of such Person to pay
the deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of business; (vii)
all Capitalized Lease Obligations of such Person; (viii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; (ix) all Indebtedness of others
guaranteed by such Person to the extent of such guarantee; and (x) all
-5-
Attributable Indebtedness. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above; and in the case of clauses (iv) and (ix), the maximum
liability of such Person for any such contingent obligations at such date and,
in the case of clause (viii), the amount of the Indebtedness secured.
"Indenture" means this Second Amended and Restated Supplemental Indenture,
as amended from time to time.
"Interest Expense" of any Person for any period means the
aggregate amount of interest which, in accordance with GAAP, would be set
opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation or duplication, imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with Hedging Obligations,
amortization of financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount and all other non-cash
interest expense).
"Interest Payment Date" shall have the meaning assigned to such term in the
Securities.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including, without limitation, any conditional sale or other
title retention agreement, and any financing lease in the nature thereof, any
agreement to sell, and any filing of, or agreement to give, any financing
statement (other than notice filings not perfecting a security interest) under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Net Proceeds" with respect to any Asset Sale means (i) cash (in U.S.
dollars or freely convertible into U.S. dollars) received by the Company or any
of its Subsidiaries from such Asset Sale (including, without limitation, cash
received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale or the transfer of the proceeds of such Asset Sale to the Company or any of
its Subsidiaries, (b) payment of all brokerage commissions and the underwriting
and other fees and expenses related to such Asset Sale and (c) deduction of
appropriate amounts to be provided by the Company or any of its Subsidiaries as
a reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or otherwise disposed of in such Asset Sale and retained by the
Company or any of its Subsidiaries after such Asset Sale (including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters) or against any indemnification
obligations associated with the sale or other disposition of the assets sold or
otherwise disposed of in such Asset Sale and (ii) all non-cash consideration
received by the Company or any of its Subsidiaries from such Asset Sale upon the
liquidation or conversion of such consideration into cash.
"Officer" means the Chief Executive Officer, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, Controller, Secretary or any Vice
President of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Company's Chief Executive Officer or Chief Financial Officer.
"Opinion of Counsel" means an opinion from legal counsel who is acceptable
to the Trustee in its sole discretion. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Payment or Distribution in Respect of the Securities" means, for purposes
of Article 9 hereof, any payment or distribution of any kind or character,
whether in cash, property or securities, on account of the payment of the
principal of and premium, if any, and interest on any of the Securities,
including, without limitation, any redemption or repurchase price paid for any
optional or mandatory redemption, Asset Sale Offer, Change in Control Repurchase
-6-
or other repurchase or retirement of the Securities or any other payment on
account of the Securities (including payments with respect to claims related to
the issuance of the Securities); provided, however, that the exchange of Rule
144A Notes for a like amount of Series A Notes shall not constitute a Payment or
Distribution in Respect of the Securities. For purposes of this definition, the
words "cash, property or securities" shall not be deemed to include securities
of the Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment which
are subordinated in right of payment to all Senior Indebtedness which may be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in Article 9 and which securities
are not subject to maturity or mandatory prepayment prior to the maturity of any
Senior Indebtedness then outstanding.
"Permitted Holder" means Xxxxxx X. Xxxxxx and any group (within the meaning
of Section 13(d)(3) of the Exchange Act) of which Xx. Xxxxxx is a member; so
long as, with respect to any group, Xx. Xxxxxx owns more than 20% of the total
voting power of all classes of Capital Stock of the acquiring entity entitled to
vote generally in the election of directors of the acquiring entity.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" means with respect to any Person all Capital Stock of
such Person which has a preference in liquidation or a preference with respect
to the payment of dividends.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of May 11, 1995 by and between Xxxxx Xxxxxx Inc. and the Company as
such agreement may be amended, modified or supplemented from time to time.
"Rule 144A Notes" means the Company's 9 5/8% Senior Subordinated Notes due
2002, issued under this Indenture.
"Sale and Leaseback Transaction" means with respect to any Person, an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person or any of its Subsidiaries of any property or asset of such Person or any
of its Subsidiaries which has been or is being sold or transferred by such
Person or such Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such property or asset.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Rule 144A Notes and Series A Notes issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on and other amounts due on or in connection with any Indebtedness of
the Company (including, without limitation, all Allowed and Disallowed
Post-Commencement Interest and Expenses in respect of such Indebtedness) and any
amounts with respect to Hedging Obligations that fix the interest rate on
variable rate indebtedness otherwise permitted by this Indenture, other than the
Securities, the Company's 10 3/4% Senior Subordinated Notes due 2004, the
Company's 5 3/4% Convertible Senior Subordinated Debentures due 2001 and the
Company's 6% Convertible Subordinated Debentures due 2003, whether outstanding
on the date of the Original Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Securities; provided that Senior Indebtedness will not include
(i) any Indebtedness, liability or obligation of the Company to (a) any of its
-7-
Subsidiaries, (b) trade creditors or (c) any person arising out of any lawsuit
against the Company or any of its Subsidiaries or any settlement thereof (other
than any lawsuit or settlement thereof respecting amounts payable with regard to
Senior Indebtedness), (ii) any redemption or other payments on Preferred Stock,
(iii) any Indebtedness incurred in violation of the provisions of the Indenture
or (iv) amounts owing under leases (other than Capitalized Lease Obligations).
"Series A Notes" means the Company's 9 5/8% Senior Subordinated Notes due
2002, Series A, issued under this Indenture.
"Shelf Registration Statement" means the Registration Statement with
respect to the Securities which the Company is required to file pursuant to the
Registration Rights Agreement.
"Significant Subsidiary" has the meaning ascribed to it under Regulation C
promulgated under the Securities Act of 1933, as amended.
"Stated Maturity" means, when used with respect to any security or any
installment of interest thereon, that date specified in such security as the
fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subsidiary" of any Person means (i) any corporation of which Common Equity
having ordinary voting power to elect a majority of the directors of such
corporation is owned by such Person directly or through one or more other
Subsidiaries of such Person, and (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns at least a majority of the
Common Equity of such entity.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. xx.xx.
77aaa-77bbbb), as in effect on the date hereof (unless otherwise specifically
provided herein).
"Transfer Restricted Securities" means Securities that bear or are required
to bear the legend set forth in Section 2.5 hereof.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary of which
100% of the Common Equity (except for directors' qualifying shares or certain
minority interests owned by other Persons solely due to local law requirements
that there be more than one stockholder, but which interest is not in excess of
what is required for such purpose) is owned directly by such Person or through
one or more other Wholly Owned Subsidiaries of such Person and (ii) any entity
other than a corporation in which such Person, directly or indirectly, owns all
of the Common Equity of such entity.
-8-
SECTION 1.2 OTHER DEFINITIONS
Defined
Term in Section
"Asset Sale Offer"......................................... 3.8
"Custodian"................................................ 5.1
"Change in Control Repurchase"............................. 3.7
"Event of Default"......................................... 5.1
"Legal Holiday"............................................ 10.6
"Payment Blockage Period".................................. 9.4
"Paying Agent"............................................. 2.3
"Registrar"................................................ 2.3
"Repurchase Date".......................................... 3.7
"Successor"................................................ 4.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions;
(6) any amount may be negative; and
(7) "herein", "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
Subdivision.
-9-
ARTICLE 2.
THE SECURITIES
SECTION 2.1 FORM AND DATING
The Rule 144A Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A. Subject to Section 2.6, the Rule 144A
Notes shall be in an aggregate principal amount no greater than $115,000,000;
provided, that if Series A Notes are issued hereunder pursuant to the Exchange
Offer, the aggregate maximum principal amount of Rule 144A Notes shall be
reduced by the principal amount of Series A Notes so issued. The Series A Notes,
when and if issued, and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B. Subject to Section 2.6, the Series A
Notes shall be in an aggregate principal amount no greater than $115,000,000
less the principal amount of Rule 144A Notes not exchanged for the Series A
Notes in the Exchange Offer. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication. The Securities shall be in
denominations of $1,000 and integral multiples thereof.
The Securities may be initially issued either in the form of a Global
Security or Securities or in the form of Definitive Securities or both. A Global
Security shall represent such of the outstanding Securities as shall be
specified therein and shall provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee or an agent thereof, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof. Definitive
Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.2 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security nevertheless shall be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue up to the
aggregate principal amount stated in paragraph 4 of the Securities, upon a
written order of the Company signed by two Officers. The aggregate principal
amount of Securities outstanding at any time may not exceed such amount except
as provided in Section 2.6.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture
-10-
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
SECTION 2.3 REGISTRAR AND PAYING AGENT
The Company shall maintain or cause to be maintained through the Trustee or
such other Person as may be appointed hereunder an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium, if any, or interest on the Securities, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.5 REGISTRATION OF TRANSFER AND EXCHANGE
(a) With respect to the transfer and exchange of Definitive Securities:
when Definitive Securities are presented to the Trustee with the request (x) to
register the transfer of the Definitive Securities or (y) to exchange such
Definitive Securities for an equal principal amount of Definitive Securities of
other authorized denominations, the Trustee shall register the transfer or make
the exchange as requested if its requirements for such transactions are met;
provided, however, that the Definitive Securities presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Trustee duly executed by the Holder
thereof or by its attorney, duly authorized in writing; and
(ii) shall, in the case of Transfer Restricted Securities that are
Definitive Securities, except if exchanged for a Series A Note in the
Exchange Offer, be accompanied by the following additional information and
documents, as applicable
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit C hereto); or
(B) if such Transfer Restricted Security is being transferred to
a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in reliance on Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144
or Regulation S under the Securities Act or pursuant to an effective
-11-
registration statement under the Securities Act, a certification to
that effect (in substantially the form of Exhibit C hereto); or
(C) if such Transfer Restricted Security is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect (in substantially
the form of Exhibit C hereto) and an Opinion of counsel reasonably
acceptable to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) The following restrictions apply to any transfer of a Definitive
Security for a beneficial interest in a Global Security. A Definitive Security
may not be exchanged for a beneficial interest in a Global Security except until
and upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted Security and
such transfer is not being made in connection with the Exchange Offer,
certification, substantially in the form of Exhibit C hereto, that such
Definitive Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer Restricted
Security, written instructions directing the Trustee to make an endorsement
on the Global Security to reflect an increase in the aggregate principal
amount of the Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, in accordance
with the standing instructions and procedures existing between it and the
Depositary, the aggregate principal amount of Securities represented by the
Global Security to be increased accordingly. If no Global Securities are then
outstanding, the Company shall issue and, upon receipt of a written
authentication order in the form of an Officers' Certificate, the Trustee shall
authenticate a new Global Security in the appropriate principal amount.
(c) The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
(d) With respect to the transfer of a beneficial interest in a Global
Security for a Definitive Security:
(i) Any person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Definitive Security.
Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary or its nominee on behalf of
any person having a beneficial interest in a Global Security constituting a
Transfer Restricted Security only, except if exchanged for a Series A Note
in the Exchange Offer, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the
form of Exhibit C hereto); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A
-12-
under the Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 or Regulation S under the Securities Act
or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit C hereto); or
(C) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferee or
transferor (in substantially the form of Exhibit C hereto) and an
Opinion of counsel from the transferee or transferor reasonably
acceptable to the Company and to the Security Registrar to the effect
that such transfer is in compliance with the Securities Act,
then the Trustee will cause, in accordance with the standing instructions and
procedures existing between it and the Depositary, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of a written authentication order in the
form of an Officers' Certificate the Trustee will authenticate and deliver to
the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.5 shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the persons in whose name such
Securities are so registered.
(e) Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.5), a Global Security
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) The following relates to the authentication of Definitive Securities in
absence of the Depositary. If at any time: (i) the Depositary for the Securities
notifies the Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Securities and a successor Depositary for the Global
Securities is not appointed by the Company within 90 days after delivery of such
notice; or (ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Securities under this
Indenture, then the Company will execute, and the Trustee, upon receipt of a
written order in the form of an Officers' Certificate requesting the
authentication and delivery of Definitive Securities, will authenticate and
deliver Definitive Securities, in an aggregate a principal amount equal to the
principal amount of the Global Securities, in exchange for such Global
Securities.
(g) (i) Except as permitted by the following paragraph (ii), each Rule 144A
Note certificate evidencing the Global Securities and the Definitive Securities
(and all Securities other than Series A Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HERETO AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
-13-
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE
HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3) OR (A)(7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D), (E) or (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE THEN HOLDER OF THIS
SECURITY AFTER THE RESALE RESTRICTION TERMINATION DATE.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act (including the Shelf
Registration Statement):
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented by a Global
Security shall not be subject to the provisions set forth in (i) above
(such sales or transfers being subject only to the provisions of
Section 305(c) hereof); provided, however, that with respect to any
request for an exchange of a Transfer Restricted Security that is
represented by a Global Security for a Definitive Security that does
not bear a legend, which request is made in reliance upon Rule 144 or
an effective registration statement, the Holder thereof shall certify
in writing to the Registrar that such request is being made pursuant
to Rule 144 or an effective registration statement (such certification
to be substantially in the form of Exhibit C hereto.)
(h) At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased or
cancelled, such Global Security shall be returned to or retained and cancelled
by the Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the principal amount of Securities represented
-14-
by such Global Security shall be reduced and an endorsement shall be made on
such Global Security, by the Trustee or the Securities Custodian, at the
direction of the Trustee, to reflect such reduction.
(i) All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable and any other expenses (including the fees
and expenses of the Trustee) in connection therewith (other than such transfer
tax or similar governmental charge payable upon exchanges pursuant to Section
2.6 or 8.5).
SECTION 2.6 REPLACEMENT SECURITIES
If any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers, shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, an indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Company to protect the Company, the
Trustee, the Agent or any authenticating agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge for its expenses in
replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.7 OUTSTANDING SECURITIES
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.7 as not outstanding.
If a Security is replaced pursuant to Section 2.6, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
3.1, it ceases to be outstanding and interest on it ceases to accrue as of the
date it is deemed paid. Upon a "legal defeasance" pursuant to Section 7.1(b) or
a "covenant defeasance" pursuant to Section 7.1(c), the Securities shall be
deemed to be outstanding or not outstanding as provided in the applicable
Section 7.1(b) or 7.1(c).
Except as set forth in Section 2.8, a Security does not cease to be
outstanding because the Company or an Affiliate holds the Security.
SECTION 2.8 TREASURY SECURITIES
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded.
-15-
SECTION 2.9 TEMPORARY SECURITIES
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
SECTION 2.10 CANCELLATION
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation, and, upon request of
the Company, certification of their destruction shall be delivered to the
Company unless, by a written order signed by two Officers, the Company shall
direct that canceled Securities be returned to it. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.11 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Securities. The Company, with the consent of the Trustee, shall fix each
such special record date and payment date. At least 15 days before the special
record date, the Company (or, upon request of the Company, the Trustee, in the
name of and at the expense of the Company) shall mail to Holders a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.12 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY
(a) If the Company shall establish that the Securities are to be issued in
whole or in part in the form of one or more Global Securities, then the Company
shall execute and the Trustee or an agent thereof shall, in accordance with
Section 2.2 and the written order of the Company delivered to the Trustee or its
agent thereunder, authenticate and deliver such Global Security or Securities,
which (i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the outstanding Securities to be represented by
such Global Security or Securities, or such portion thereof as the Company shall
specify in a written order of the Company signed by two Officers, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for securities in definitive form, this security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of the Depositary to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depositary or in such other name as
is requested by an authorized representative of the Depositary (and any payment
is made to the nominee of the Depositary or to such other entity as is requested
by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, the nominee of the Depositary, has an interest
herein."
(b) Notwithstanding any other provision of this Section 2.12 or of Section
2.5, and subject to the provisions of paragraph (c) below, a Global Security may
be transferred, in whole but not in part and in the manner
-16-
provided in Section 2.5, only to a nominee of the Depositary for such Global
Security, or to the Depositary, or a successor Depositary for such Global
Security selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities shall no longer be
eligible or in good standing under the Exchange Act or any other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to such Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or an agent thereof, upon receipt of a written order of
the Company signed by two Officers for the authentication and delivery of
individual Definitive Securities in exchange for such Global Security, will
authenticate and deliver, individual Definitive Securities of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine that
the Securities issued in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a written order of the
Company signed by two Officers for the authentication and delivery of individual
Definitive Securities in exchange in whole or in part for such Global Security,
will authenticate and deliver individual Definitive Securities of like tenor and
terms in an aggregate principal amount equal to the principal amount of such
Global Security or Securities in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to a written order of the
Company signed by two Officers, the Depositary for a Global Security may
surrender such Global Security in exchange in whole or in part for individual
Definitive Securities of like tenor and terms on such terms as are acceptable to
the Company and such Depositary. Thereupon the Company shall execute, and the
Trustee or an agent thereof, upon a written order of the Company signed by two
Officers, shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Definitive Security or Securities of
like tenor and terms and of any authorized denomination as requested by such
Person in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest as specified by such Depositary in the Global
Security; and (2) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Definitive Securities delivered to Holders thereof.
(iv) In any exchange provided for in (i), (ii) or (iii) of this paragraph
(c), the Company will execute and the Trustee or an agent thereof will
authenticate and deliver individual Definitive Securities in registered form in
authorized denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Definitive Securities, such Global Securities
shall be cancelled by the Trustee or an agent thereof. Except as provided in
(iii) above, Definitive Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct either the Trustee or the Registrar. Such Trustee or the Registrar
shall deliver such Definitive Securities to the Persons in whose names such
Securities are so registered.
ARTICLE 3
COVENANTS
SECTION 3.1 PAYMENT OF SECURITIES
The Company shall pay the principal of and premium, if any, and interest on
the Securities on the dates and in the manner provided in the Securities.
Principal, premium, if any, and interest shall be considered paid on the
-17-
date due if the Paying Agent, other than the Company or a Subsidiary of the
Company, holds on that date money deposited by the Company designated for and
sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the interest rate on the Securities to the extent lawful; it shall pay interest
on overdue payments of premium, if any, or installments of interest (without
regard to any applicable grace period) at the same rate to the extent lawful.
SECTION 3.2 MAINTENANCE OF OFFICE OR AGENCY
The Company will maintain an office or agency where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect of the Securities and this Indenture
may be served pursuant to Section 2.3. The Company hereby designates the
Corporate Trust Office of the Trustee as such office or agency of the Company.
The Company also from time to time may designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and from time to time may rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 3.3 SEC REPORTS
(a) The Company shall remain subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act and shall continue to file with
the SEC such annual reports and such information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act.
(b) The Company shall file with the Trustee and cause to be provided to the
Holders, within 15 days after it files the same with the SEC, copies of its
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company or any subsidiary of the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company shall cause any annual report furnished to its stockholders generally
and any quarterly or other financial reports furnished by it to its stockholders
generally to be filed with the Trustee and mailed to the Holders at their
addresses appearing in the register of Securities maintained by the Registrar.
SECTION 3.4 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or premium, if any, or interest, if any,
on the Securities are prohibited or, if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with
respect thereto.
(b) So long as (i) not contrary to the then current recommendations of the
American Institute of Certified Public Accountants or (ii) the Company's
independent public accountants do not have in effect a policy, of
-18-
general applicability with respect to their clients, that such accountants will
not prepare statements on the subjects specified below, the year-end financial
statements delivered pursuant to Section 4.3 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 3 or 4 or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company, so long as any of the Securities are outstanding, will
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default under this Indenture, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 3.5 CORPORATE EXISTENCE, TAXES, ETC.
Subject to the provisions of Section 4.1, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
rights (charter and statutory), licenses and franchises; provided, however, that
the Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 3.6 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the Company's
obligation to pay the Securities; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
insofar as such law applies to the Securities, and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power,
right or remedy herein granted to the Trustee, but will suffer and permit the
execution of every such power, right or remedy as though no such law has been
enacted.
SECTION 3.7 CHANGE IN CONTROL
(a) Following the occurrence of any Change in Control, each Holder will
have the right, at such Holder's option, to require that the Company purchase (a
"Change in Control Repurchase"), and upon the exercise of such right, the
Company shall, subject to the provisions of Section 9.3 hereof, purchase, all or
any part of such Holder's Securities on a date (the "Repurchase Date") that is
no earlier than 30 days nor later than 60 days after the date on which the
Company gives notice of a Change in Control as provided in (b) below at a
purchase price equal to 101% of the aggregate principal amount of the
Securities, plus accrued and unpaid interest thereon, if any, to the Repurchase
Date.
(b) Within 30 days after any Change in Control, the Company (with notice to
the Trustee), or the Trustee at the Company's request, will mail or cause to be
mailed to all Holders on the date of the Change in Control a notice of the
occurrence of such Change in Control and of the Holders' rights arising as a
result thereof. Such notice, which shall govern the terms of the Change in
Control Repurchase, shall state:
(1) that a Change in Control has occurred and that such Holder has the
right to require the Company to repurchase such Holder's Notes in cash;
(2) the Repurchase Date (which will be no earlier than 30 days nor
later than 60 days from the date such notice is mailed);
-19-
(3) the purchase price for the repurchase;
(4) the date by which the repurchase right must be exercised; and
(5) the instructions determined by the Company, consistent with this
Section 3.7, that a Holder must follow in order to have its Securities
repurchased.
(c) To exercise a repurchase right, a Holder shall deliver to the Company
(or a depositary or Paying Agent designated by the Company for such purpose in
the notice referred to in (b) above), on or before the close of business on the
Repurchase Date, the Security or Securities with respect to which the repurchase
right is being exercised, duly endorsed for transfer to the Company, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of each
Security so delivered completed. Holders shall be entitled to withdraw their
election if the Company (or the depositary or Paying Agent designated by the
Company for the purpose of receiving such election) receives, not later than
five Business Days prior to the Repurchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security or Securities the Holder delivered for purchase and a
statement that such Holder is withdrawing its election to the have the Security
or Securities purchased.
(d) In the event a repurchase right shall be exercised in accordance with
the terms hereof, subject to Article 9, the Company shall on or promptly
following the Repurchase Date pay or cause to be paid in cash to the Holder
thereof the repurchase price of the Security or Securities as to which the
repurchase right has been exercised. In the event that the repurchase right is
exercised with respect to less than the entire principal amount of a surrendered
Security, the Company shall execute and deliver to the Trustee and the Trustee
shall authenticate for issuance in the name of the Holder a new Security or
Securities in the aggregate principal amount of the unrepurchased portion of
such surrendered security.
(e) If the Repurchase Date is on or before an Interest Payment Date and on
or after the related record date, any interest accrued and unpaid to the
Repurchase Date will be paid to the Person in whose name the Security is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who exercise their repurchase right pursuant
to this Section 3.7.
(f) Any Change in Control Repurchase shall be conducted in compliance with
applicable tender offer rules, including Section 14(e) of the Exchange Act and
Rule 14(e)(1) thereunder. The Change in Control Repurchase may not be modified
or conditioned by the Company in any manner.
SECTION 3.8 LIMITATIONS ON ASSET SALES
The Company shall not, and shall not permit any of its Subsidiaries to,
consummate any Asset Sale unless (i) the Company or its Subsidiaries receive
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets or Capital Stock included in such Asset Sale (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a board resolution) and (ii) not less than 50% of such
consideration is in the form of cash. The Net Proceeds of Asset Sales shall,
within 360 days, (a) be reinvested in the lines of business of the Company or
any of its Subsidiaries immediately prior to such investment; (b) be applied to
the payment of the principal of, and interest on, Senior Indebtedness; (c) be
utilized to make any Investment in any other Person permitted under this
Indenture; or (d) be applied to an offer (an "Asset Sale Offer") to purchase
outstanding Securities. In any such Asset Sale Offer, the Company shall offer to
purchase Securities, as selected by lot (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased), at a purchase price equal to
100% of the aggregate principal amount of the Securities, plus accrued and
unpaid interest to the date of purchase, in the manner set forth in this
Indenture. Any Asset Sale Offer will be conducted in compliance with applicable
tender offer rules, including Section 14(e) of the Exchange Act and Rule 14e-1
thereunder. Any Net Proceeds remaining immediately after the completion of any
Asset
-20-
Sale Offer may be used by the Company or its Subsidiaries for any purpose not
inconsistent with the other provisions of this Indenture.
ARTICLE 4
SUCCESSORS
SECTION 4.1 LIMITATIONS ON MERGERS AND CONSOLIDATIONS
The Company shall not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets, or assign
any of its obligations hereunder or under the Securities, to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment shall be made (collectively, the "Successor"), is
a corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia, and the Successor assumes by
supplemental indenture in a form satisfactory to the Trustee all of the
obligations of the Company hereunder and under the Securities; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 4.2 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or any
assignment of its obligations under this Indenture or the Securities in
accordance with Section 4.1, the Successor formed by such consolidation or into
or with which the Company is merged or to which such sale, lease, conveyance or
other disposition or assignment is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor has been named as the Company herein
and the predecessor Company, in the case of a sale, lease, conveyance or other
disposition or assignment, shall be released from all obligations under this
Indenture and the Securities.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT
An "Event of Default" occurs if:
(1) the Company defaults in the payment of the principal of, or any
premium on, any Security when the same becomes due and payable, whether at
Stated Maturity, upon redemption, upon acceleration or otherwise;
-21-
(2) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the Default continues for a
period of 30 days (even if such payment is prohibited by Article 9 hereof);
(3) the Company fails to comply with any of its agreements or
covenants in, or provisions of, the Securities or this Indenture and such
failure continues for the period and after the notice specified below;
(4) any acceleration of the maturity of Indebtedness of the Company or
its Subsidiaries having an outstanding principal amount of at least $50.0
million or a failure to pay such Indebtedness at its Stated Maturity;
provided that such acceleration or failure to pay is not cured within 10
days after such acceleration or failure to pay;
(5) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any of its Significant
Subsidiaries as debtor in an involuntary case,
(b) appoints a Custodian of the Company or any of its Significant
Subsidiaries or a Custodian for all or substantially all of the
property of the Company or any of its Significant Subsidiaries, or
(c) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know of a Default unless it has actual
knowledge of such Default or receives written notice of such Default with
specific reference to such Default.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities notify the Company and the Trustee, of
the Default and the Company does not cure the Default within 45 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
-22-
SECTION 5.2 ACCELERATION
If an Event of Default (other than an Event of Default with respect to the
Company specified in clause (6) or (7) of Section 5.1) occurs and is continuing,
the Trustee by written notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the then outstanding Securities by written notice
to the Company and the Trustee, may declare all Securities to be due and payable
immediately. Upon such declaration the amounts due and payable on the
Securities, as determined in the next succeeding paragraph, shall be due and
payable immediately. If an Event of Default with respect to the Company
specified in clause (6) or (7) of Section 5.1 occurs, such an amount shall ipso
facto become and be immediately due and payable without any declaration, notice
or other act on the part of the Trustee or any Holder. The Holders of a majority
in aggregate principal amount of the then outstanding Securities by written
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal of, or premium, if any, or
interest on the Securities or that resulted from a failure to comply with
Section 3.7) have been cured or waived.
In the event that the maturity of the Securities is accelerated pursuant to
this Section 5.2, 100% of the principal amount thereof and premium, if any,
shall become due and payable plus accrued interest to the date of payment plus
interest on defaulted interest to the extent provided herein.
SECTION 5.3 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, or premium, if any, or
interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 5.4 WAIVER OF PAST DEFAULTS
The Holders of a majority in aggregate principal amount of the then
outstanding Securities by notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on
any Security or in respect of a provision under this Indenture which cannot be
modified or amended without the consent of the Holder of each Security then
outstanding. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right or remedy consequent
thereon.
SECTION 5.5 CONTROL BY MAJORITY
The Holders of a majority in aggregate principal amount of the then
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability, in each case as determined by the Trustee.
-23-
SECTION 5.6 LIMITATIONS ON SUITS
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee in its sole discretion against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Securities do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 5.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
SECTION 5.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 5.1(1) or (2) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the amount of principal,
premium, if any, and interest remaining unpaid on the Securities, determined in
accordance with Section 5.2, and interest on overdue principal and premium, if
any, and, to the extent lawful, interest on overdue installments of interest,
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 5.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.6. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.6 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other
-24-
properties which the Holders of the Securities may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee (or similar official) in bankruptcy and may
be a member of the creditors' committee.
SECTION 5.10 PRIORITIES
If the Trustee collects any money pursuant to this Article 5, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 6.6;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Article.
SECTION 5.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 5.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
5.7 or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
ARTICLE 6
TRUSTEE
SECTION 6.1 DUTIES OF TRUSTEE
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in such exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(a) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
-25-
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; however,
the Trustee shall examine the certificates and opinions to determine
whether or not, on their face, they appear to conform to the requirements
of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(a) this paragraph does not limit the effect of paragraph (2) of this
Section;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(4) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (1),
(2), (3) and (5) of this Section 6.1.
(5) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 6.2 RIGHTS OF TRUSTEE
(1) Subject to Section 6.1, the Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person,
and the Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(3) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
-26-
SECTION 6.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 6.4 TRUSTEE'S DISCLAIMER
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or as to the Company's ability to pay the Securities
when and as due or perform its other obligations hereunder. It shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision
hereof. It shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee. It shall not be responsible
for any statement or recital herein or any statement in the Securities other
than its certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, or premium, if any, or
interest on any Security or that resulted from a failure by the Company to
comply with Section 3.7, the Trustee may withhold the notice if it in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 6.6 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee, its employees, officers, directors
and agents and any predecessor Trustee hereunder against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture or in connection with
enforcing this indemnification provision, except as set forth in the next
paragraph. The Trustee promptly shall notify the Company of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 6.6, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of,
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
-27-
SECTION 6.7 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in principal amount of the
then outstanding Securities may remove the Trustee by so notifying the Trustee
and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 310(b) of the TIA;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 310 of the TIA, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 6.6.
Notwithstanding replacement of the Trustee pursuant to this Section 6.7, the
Company's obligations under Section 6.6 shall continue for the benefit of the
retiring Trustee.
SECTION 6.8 SUCCESSOR TRUSTEE BY MERGER, ETC.
Subject to Section 6.9, if the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee.
SECTION 6.9 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder which shall be a bank or
corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia authorized under such
laws to exercise corporate trustee power, shall be subject to supervision or
examination by Federal or state (or the District of Columbia) authority and
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition.
-28-
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1) and 310(a)(2). The Trustee is subject to TIA ss. 310(b). If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in Section 6.7.
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.1 TERMINATION OF COMPANY'S OBLIGATIONS
(a) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 6.6 and the Trustee's and Paying Agent's
obligations under Section 7.3 shall survive) when all outstanding Securities
theretofore authenticated and issued have been delivered (other than destroyed,
lost or stolen Securities that have been replaced or paid) to the Trustee for
cancellation and the Company has paid all sums payable hereunder. In addition,
the Company may elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of the Sections of and
matters under this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities to receive solely
from the trust fund described in paragraph (d) below and as more fully set forth
in such paragraph, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.5, 2.6 and 3.2,
and, with respect to the Trustee, under Section 6.6, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Section
7.1. Subject to compliance with this Section 7.1, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article 4 and in Section
3.3, 3.4 and 3.6 through 3.8 with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purpose of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to the application of either
paragraph (b) or (c) above to the outstanding Securities:
-29-
(1) the Company has irrevocably deposited in trust with the Trustee
or, at the option of the Trustee, with a trustee satisfactory to the
Trustee and the Company under the terms of an irrevocable trust agreement
in form and substance satisfactory to the Trustee in its sole discretion,
money or U.S. Government Obligations sufficient to pay principal of,
premium, if any, and interest on the Securities to maturity or redemption
(in the opinion of a nationally recognized accounting firm of independent
certified public accountants expressed in a written certificate delivered
to the Trustee) and to pay all other sums payable by it hereunder; provided
that (i) the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such U.S. Government
Obligations to the Trustee and (ii) the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal, premium, if any, and interest
with respect to the Securities;
(2) the Company has delivered to the Trustee an Officer's Certificate
stating that (a) all conditions precedent provided for relating to either
the legal defeasance under paragraph (b) above or the covenant defeasance
under paragraph (c) above, as the case may be, have been complied with and
(b) if any other Indebtedness of the Company shall then be outstanding or
committed, such legal defeasance or covenant defeasance will not violate
the provisions of the agreements or instruments evidencing such
Indebtedness;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) the Trustee shall not have received notice from any holder of Bank
Debt or any holder of Senior Indebtedness in an aggregate principal amount
in excess of $20 million that such legal defeasance or covenant defeasance
would violate the provisions of the agreements or instruments evidencing
such Senior Indebtedness;
(5) such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default or event of default under,
this Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound;
(6) in the case of an election under paragraph (b) above, the Company
shall have delivered to the Trustee an Opinion of Counsel from nationally
recognized counsel acceptable to the Trustee stating that (x) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, (y) there exists controlling precedent, or (z) since the
date of this Indenture, there has been a change in the applicable Federal
income tax law, in any case to the effect that the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such legal defeasance and will be
subject to federal income tax on the same amount and in the same manner and
at the same time as would have been the case if such legal defeasance had
not occurred; and
(7) in the case of an election under paragraph (c) above, the Company
shall have delivered to the Trustee an Opinion of Counsel from nationally
recognized counsel acceptable to the Trustee (i) to the effect that the
Holders of the outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amount and
in the same manner and at the same time as would have been the case if such
covenant defeasance had not occurred or (ii) that the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
to the foregoing effect.
After such irrevocable deposit made pursuant to this Section 7.1 and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
-30-
The Company may make an irrevocable deposit pursuant to this Section 7.1
only if at such time it is not prohibited from doing so under the provisions of
Article 9 and the Company shall have delivered to the Trustee and any Paying
Agent an Officers' Certificate to that effect.
In order to have money available on a payment date to pay principal,
premium, if any, or interest on the Securities, the U.S. Government Obligations
shall be payable as to principal, premium, if any, or interest on or before such
payment date in such amounts as will provide the necessary money to effect the
applicable defeasance. U.S. Government Obligations shall not be callable at the
issuer's option.
SECTION 7.2 APPLICATION OF TRUST MONEY
The Trustee or a trustee satisfactory to the Trustee and the Company shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
Section 7.1. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of, premium, if any, and interest on the
Securities.
SECTION 7.3 REPAYMENT TO THE COMPANY
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company at their option
or upon written request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years after the date
upon which such payment shall have become due; provided, however, that the
Company shall have either caused notice of such payment to be mailed to each
Holder entitled thereto no less than 30 days prior to such repayment or within
such period shall have published such notice in a financial newspaper of
widespread circulation published in The City of New York. After payment to the
Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
SECTION 7.4 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 7.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 7.1 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 7.1; provided, however,
that if the Company has made any payment of premium, if any, or interest on or
principal of any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
-31-
ARTICLE 8
AMENDMENTS
SECTION 8.1 WITHOUT CONSENT OF HOLDERS
The Company and the Trustee may amend this Indenture or the Securities or
waive any provision hereof without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 4.1;
(3) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities;
(4) to make any change that does not adversely affect the legal rights
hereunder of any Holder; or
(5) to comply with a provision or provisions of the TIA applicable to this
Indenture.
Upon the request of the Company, accompanied by a resolution of the Board
of Directors authorizing the execution of any such supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 8.6, the
Trustee shall join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into any supplemental indenture
that affects its own rights, duties or immunities under this Indenture or
otherwise. After an amendment or waiver under this Section becomes effective,
the Company shall mail to the Holders of each Security affected thereby a notice
briefly describing the amendment or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.2 WITH CONSENT OF HOLDERS
Except as provided in this Section 8.2, the Company and the Trustee may
amend this Indenture or the Securities with the written consent of the Holders
of at least a majority in principal amount of the then outstanding Securities.
Upon the request of the Company, accompanied by a resolution of the Board
of Directors authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in Section
8.6, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the Securities then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities. However, without the consent
of each Holder affected, an amendment or waiver under this Section may not:
-32-
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Security;
(2) reduce the principal amount of, or premium, if any, or interest on,
any Security;
(3) modify the provisions of Article 9 hereof in a manner adverse to the
Holders;
(4) change the place of payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable;
(5) adversely affect the right of Holders to require the Company to
repurchase Securities pursuant to Section 3.7 hereof or modify the
obligations of the Company to make an Asset Sale Offer in accordance
with Sections 3.8;
(6) impair the right of Holders to institute suit for the enforcement of
payment of the principal of and premium, if any, and interest on
Securities on or after the Stated Maturity thereof (or in the case of
redemption, on or after the redemption date);
(7) reduce the percentage in principal amount of Securities, the consent
of whose Holders is required for any modification or amendment of the
Indenture, or the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture or certain
Defaults or Events of Default hereunder and their consequences
provided for in this Indenture; or
(8) modify any of the provisions of Section 5.4 or this sentence of this
Section 8.2.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the Company
to obtain any such consent otherwise required from such Holder) may be subject
to the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of this Indenture.
SECTION 8.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment to this Indenture or the Securities shall comply in form
and substance with the TIA as then in effect.
SECTION 8.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment (which includes any supplement) or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder
may revoke the consent as to his or her Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment or
waiver becomes effective. An amendment or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of a Security whether
theretofore or thereafter authenticated and delivered.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation, or (ii) such other date as the Company shall
designate. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those
-33-
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
principal amount of Securities required hereunder for such amendment or waiver
to be effective shall have also been given and not revoked within such 90-day
period.
SECTION 8.5 NOTATION ON OR EXCHANGE OF SECURITIES
The Trustee may place an appropriate notation about an amendment or waiver
on any Security thereafter authenticated. The Company in exchange for the
Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
SECTION 8.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 8 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 6.1 and 6.2 shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE 9
SUBORDINATION
SECTION 9.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 9, the indebtedness represented
by the Securities and all Payments or Distributions in Respect of the Securities
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
If at any time following the payment of any amount to a holder of Senior
Indebtedness with respect to such Senior Indebtedness, such payment is rescinded
or must otherwise be returned by such holder upon the insolvency, bankruptcy,
reorganization, dissolution or liquidation of the Company or any other Person or
otherwise, and is so rescinded or returned to the party or parties making such
payment, such Senior Indebtedness shall be reinstated to the extent of such
payment and the provisions of this Article 9 shall be applicable as if such
payment were never made.
The provisions of this Article 9 are for the benefit of the holders of
Senior Indebtedness, and each Holder of the Securities, by his purchase or other
acquisition of the Securities, hereby agrees for the benefit of each holder of
Senior Indebtedness that his Securities are subject to the provisions of this
Article 9.
SECTION 9.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding,
relative to the Company or to its creditors, as such, or to a substantial part
of its assets, or (b) any proceeding for the liquidation, dissolution or other
winding up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit
-34-
of creditors or any other marshalling of assets and liabilities of the Company,
then and in any such event the holders of Senior Indebtedness shall be entitled
to receive payment in full of all amounts due or to become due on or in respect
of all Senior Indebtedness (including, without limitation, all Allowed and
Disallowed Post-Commencement Interest and Expenses), or provision shall be made
for such payment in cash or in a manner otherwise satisfactory to the holders of
Senior Indebtedness, before the Holders of the Securities are entitled to
receive any Payment or Distribution in Respect of the Securities (other than
payments of amounts deposited prior to any such case, proceeding, dissolution or
other winding up or event in accordance with the defeasance provisions of
Article 7 hereof), and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Payment or Distribution in Respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event (other than
payments of amounts deposited prior to any such case, proceeding, dissolution or
other winding up or event in accordance with the defeasance provisions of
Article 7 hereof), including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, before all Senior
Indebtedness (including, without limitation, all Allowed and Disallowed
Post-Commencement Interest and Expenses) is paid in full or payment thereof
provided for, and, if (i) subject to Section 9.8, such fact shall, at or prior
to the time of such payment or distribution, have been made known to the
Trustee, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the holders of Senior Indebtedness or to a
representative duly appointed by any such holder or holders of Senior
Indebtedness unless otherwise required by law or court order or (ii) such fact
shall have been made known to such Holder at any time before or after such
payment, then and in such event such Holder shall forthwith pay over and deliver
such payment to the holders of Senior Indebtedness or to a representative duly
appointed by any such holder or holders of such Senior Indebtedness unless
otherwise required by law or court order, in either such case for application to
the payment of all Senior Indebtedness remaining unpaid, to the extent necessary
to pay all Senior Indebtedness (including, without limitation, all Allowed and
Disallowed Post- Commencement Interest and Expenses) in full, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an entirety
to another Person upon the terms and conditions set forth in Article 4 shall not
be deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or which acquires by conveyance or transfer
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article 4.
SECTION 9.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full in cash, or in a manner otherwise
satisfactory to the holders of Senior Indebtedness, of all amounts due on or in
respect of such Senior Indebtedness (including, without limitation, all Allowed
and Disallowed Post-Commencement Interest and Expenses) before the Holders of
the Securities are entitled to receive any Payment or Distribution in Respect of
the Securities (including any payment which may be payable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities), other than
-35-
payment of amounts previously deposited in accordance with the defeasance
provisions of Article 7 hereof, by or for the account of the Company.
In the event that, notwithstanding the foregoing, the Company shall make
any Payment or Distribution in Respect of the Securities to the Trustee or the
Holder of any Security prohibited by the foregoing provisions of this Section,
then if (i) subject to Section 9.8, such fact shall, prior to the time of such
payment, have been made known to the Trustee, then and in such event the Trustee
shall forthwith pay over and deliver such payment to the holders of such Senior
Indebtedness or to a representative duly appointed by any such holder or holders
of such Senior Indebtedness or (ii) such fact shall have been made known to such
Holder at any time before or after such payment, then and in such event such
Holder shall forthwith pay over and deliver such payment to the holders of
Senior Indebtedness or to a representative duly appointed by any such holder or
holders of such Senior Indebtedness, in either such case for application to the
payment of all Senior Indebtedness then remaining unpaid (including, without
limitation, all Allowed and Disallowed Post-Commencement Interest and Expenses),
after giving effect to any concurrent payment or distribution to or for the
benefit of holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with respect
to which Section 9.2 is applicable.
SECTION 9.4 NO PAYMENT UPON CERTAIN DEFAULTS WITH RESPECT TO SENIOR
INDEBTEDNESS
(a) No Payment or Distribution in Respect of the Securities (other than
payments of amounts previously deposited in accordance with the defeasance
provisions of Article 7 hereof) shall be made by or for the account of the
Company upon the occurrence of any default in the payment of any Bank Debt or
any Senior Indebtedness (other than Bank Debt) in excess of $20 million beyond
any applicable grace period, unless and until such default is cured or waived or
ceases to exist or such Senior Indebtedness has been paid in full or provision
for such payment in cash or in a manner otherwise satisfactory to holders of
Senior Indebtedness has been made.
(b) Upon any default with respect to the financial covenants under the
Credit Agreement as specified therein, or if any payment or distribution by the
Company with respect to any Security would, immediately after giving effect
thereto, result in such default, no Payment or Distribution in Respect of the
Securities (other than payments of amounts previously deposited in accordance
with the defeasance provisions of Article 7 hereof), including any payment which
may be payable by reason of the payment of any other indebtedness being
subordinated to the payment of the Securities, shall be made by or for the
account of the Company on account of principal of or premium, if any, or
interest on the Securities or on account of the purchase, redemption or other
acquisition of the Securities for the period specified below (the "Payment
Blockage Period"). The Payment Blockage Period shall commence upon the receipt
of notice by the Company or the Trustee from the Bank Agent and shall end on the
earlier of (i) 179 days thereafter, (ii) the date on which such default with
respect to the financial covenants under the Credit Agreement is cured or waived
or ceases to exist or on which such Bank Debt is paid in full or provision for
such payment in money or money's worth has been made, (iii) the date on which
the maturity of any Indebtedness (other than Senior Indebtedness) shall have
been accelerated by virtue of such event, or (iv) the date on which such Payment
Blockage Period shall have been terminated by notice to the Company or the
Trustee from the Bank Agent, after which any and all required payments in
respect of the Securities, including any missed payments, may resume. Only one
Payment Blockage Period may be commenced during any period of 365 consecutive
days. No default with respect to the financial covenants under the Credit
Agreement that existed or was continuing on the date of the commencement of any
Payment Blockage Period will be, or can be, made the basis for the commencement
of a second Payment Blockage Period whether or not within a period of 365
consecutive days, unless such default has been cured or waived for a period of
not less than 90 consecutive days. In no event will a Payment Blockage Period
extend beyond 179 days.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then (i) subject to Section 9.8, if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee, then and
-36-
in such event the Trustee shall forthwith pay over and deliver such payment to
the holders of Senior Indebtedness or to a representative duly appointed by any
such holder or holders of such Senior Indebtedness or (ii) such fact shall have
been made known to such Holder at any time before or after such payment, then
and in such event such Holder shall forthwith pay over and deliver such payment
to the holders of Senior Indebtedness or to a representative duly appointed by
any such holder or holders of such Senior Indebtedness.
The provisions of this Section shall not apply to any payment with respect
to which Section 9.2 is applicable.
SECTION 9.5 PAYMENT PERMITTED IF NO DEFAULT
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 9.2 or under the conditions
described in Section 9.3 or Section 9.4, from making any Payment or Distribution
in Respect of the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder with respect to any Payment or Distribution in
Respect of the Securities or the retention of such Payment or Distribution in
Respect of the Securities by the Holders, if, at the time of such application by
the Trustee, it had not been notified in accordance with Section 9.8 that such
payment was prohibited by the provisions of this Article 9.
SECTION 9.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject to the payment in full in cash of all amounts due on or in respect
of Senior Indebtedness (including, without limitation, all Allowed and
Disallowed Post-Commencement Interest and Expenses, except to the extent
provided below), the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article 9 (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and are entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of and premium, if any, and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article 9, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
Notwithstanding anything to the contrary in this Section 9.6, the Holders
of the Securities hereby agree that they shall have no rights of subrogation
with respect to amounts paid to the holders of Senior Indebtedness in payment of
any interest, reimbursements, costs, expenses or indemnities that are not
allowed claims enforceable against the Company in a case or proceeding under
Bankruptcy Law.
SECTION 9.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS
The provisions of this Article 9 are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of and premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of
-37-
the Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 9 of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder. The failure to make a payment on account of principal
of, premium, if any, or interest on, or any other amounts then payable with
respect to, the Securities by any reason of this Article 9 shall not be
construed as preventing the occurrence of an Event of Default under Section 5.1.
SECTION 9.8 APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT
Money and U.S. Government Obligations deposited in trust with the Trustee
pursuant to Section 7.2 and in compliance with Section 7.1 shall be for the sole
benefit of the Holders and, to the extent allocated for the payment of
Securities, shall not be subject to the subordination provisions of this Article
9. Otherwise, any deposit of monies by the Company with the Trustee or any
Paying Agent (whether or not in trust) for payment on account of principal of,
premium, if any, and interest on the Securities or that otherwise constitutes a
Payment or Distribution in Respect of the Securities shall be subject to the
provisions of Sections 9.1, 9.2, 9.3 and 9.4 except that, if at least three
Business Days prior to the date on which by the terms of this Indenture any such
monies may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or the interest on any Security)
the Trustee shall not have received with respect to such monies the notice
provided for in Section 9.4(b) or 9.11, then the Trustee shall have full power
and authority to receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it within three Business Days of such date.
This Section shall be construed solely for the benefit of the Trustee and Paying
Agent and shall not otherwise affect the rights of holders of Senior
Indebtedness.
SECTION 9.9 TRUSTEE TO EFFECTUATE SUBORDINATION
Each holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 9.10 NO WAIVER OF SUBORDINATION PROVISIONS
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter,
compromise, accelerate, extend or refinance Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release, foreclose upon or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the payment or collection of Senior
Indebtedness; (iv) exercise or refrain from exercising any rights against the
Company and any other Person; (v) increase or reduce the rate of interest or
amount of principal payable on any Senior Indebtedness; (vi) release or
discharge the Company, by acceptance of a deed or assignment in lieu of
foreclosure or otherwise, as to all or any portion of the Senior Indebtedness;
or (vii) release, substitute or add any one or more guarantors or endorsers,
accept additional or substituted security for payment or performance of the
Senior Indebtedness,
-38-
or release or subordinate any security therefor. No exercise, delay in exercise
or failure to exercise by any holder of any Senior Indebtedness of any right
hereby given it, no dealing by any holder of any Senior Indebtedness with the
Company or any other guarantor, endorser or other person, no change, impairment
or suspension of any right or remedy of any holder of any Senior Indebtedness,
and no act or thing which but for this provision could act as a release or
exoneration of the Holders of the Securities hereunder, shall in any way affect,
decrease, diminish or impair any of the obligations of the Holders of the
Securities and the Trustee or give to the Holders of the Securities, the Trustee
or any other person or entity any recourse or defense against any holder of any
Senior Indebtedness.
SECTION 9.11 NOTICE TO TRUSTEE
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the
-39-
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee
or other representative therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be
entitled in all respects to assume that no such facts exist.
Subject to the provisions of Sections 6.1 and 6.2, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 9, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 9, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 9.12 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred to in
this Article 9, the Trustee, subject to the provisions of Sections 6.1 and 6.2,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
9.
SECTION 9.13 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which holders of
Senior Indebtedness shall be entitled by virtue of this Article 9 or otherwise.
SECTION 9.14 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
-40-
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss. 318(c), the imposed duties shall control.
SECTION 10.2 NOTICES
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in Person or mailed by first-class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Trustee:
Signet Trust Company
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail
to the Holder's address shown on the register kept by the Registrar. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
-41-
SECTION 10.3 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.4) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.4) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
SECTION 10.4 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 10.5 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.6 LEGAL HOLIDAYS
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 10.7 NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder of the Company or the Trustee,
as such, shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
-42-
SECTION 10.8 GOVERNING LAW
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.10 SUCCESSORS
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 10.11 SEVERABILITY
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13 TRUSTEE AS PAYING AGENT AND REGISTRAR
The Company initially appoints the Trustee as Paying Agent and Registrar.
SECTION 10.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 10.15 EFFECTIVE DATE
This Second Amended and Restated Supplemental Indenture shall be effective,
and the effective date shall be deemed to have occurred, upon the receipt by the
Trustee of a written notice from the Company that the conditions to the Offer to
Purchase the Company's 9 5/8% Senior Subordinated Notes due 2002, Series A and
Consent Solicitation dated May 1, 1997, have been satisfied or waived by the
Company and that the Acceptance Date (as defined therein) has occurred.
[Signatures on Next Page]
-43-
SIGNATURES
Dated as of May 15, 1997
(SEAL)
INTEGRATED HEALTH SERVICES, INC.
By:/s/
------------------------------
Name:
Title:
Attest:
/s/
-------------------------------
Dated as of May 15, 1997
(SEAL)
SIGNET TRUST COMPANY,
as Trustee
By:/s/
------------------------------
Name:
Title:
Attest:
/s/
-------------------------------
-44-
EXHIBIT A
LEGENDS FOR GLOBAL SECURITY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS SECURITY 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 SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HERETO AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE HOLDER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3) OR (A)(7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES,
A-1
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE THEN HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION
TERMINATION DATE.
LEGENDS FOR DEFINITIVE SECURITY
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE HOLDER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3) OR (A)(7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE THEN HOLDER OF
THIS SECURITY AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-2
9 5/8% SENIOR SUBORDINATED NOTES DUE 2002
Cusip No. $
INTEGRATED HEALTH SERVICES, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars [or such greater or lesser amount as indicated on the Schedule of
Exchanges of Definitive Securities on the reverse hereof]1 on May 31, 2002
Interest Payment Dates: May 31 and November 30
Record Dates: May 15 and November 15
Authentication: Dated: , 1995
This is one of the Securities referred to in the within-mentioned Indenture.
SIGNET TRUST COMPANY,
as Trustee INTEGRATED HEALTH SERVICES, INC.
By: By:
-------------------------- -----------------------------
Authorized Officer
By:
-----------------------------
(SEAL)
--------
1 This phrase should be included only if the Security is issued in global
form.
A-3
9 5/8% SENIOR SUBORDINATED NOTES DUE 2002
1. INTEREST. INTEGRATED HEALTH SERVICES, INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
9 5/8% per annum from the date this Security is issued until maturity. The
Company will pay interest semiannually on May 31 and November 30 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date") and any Penalty Interest payable pursuant to
Section 6 of the Registration Rights Agreement on such Interest Payment Date.
Interest on the Securities will accrue from the most recent date on 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 Security 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 November 30, 1995. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. In the case of a Security to
be repurchased by the Company in connection with a Change in Control Repurchase
pursuant to paragraph 6, on or after an interest payment record date and prior
to the next Interest Payment Date, the registered holder of such Security as of
such record date shall be entitled to accrued and unpaid interest to the
repurchase date, as provided in paragraph 6 below. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Company will
pay the principal of, premium, if any, and interest on the Securities in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay such amounts
by check payable in such money mailed to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, SIGNET TRUST COMPANY, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-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 Securities under an Indenture dated as
of May 15, 1995, as subsquently amended and restated by an Amended and Restated
Supplemental Indenture dated as of May 15, 1995, supplemented by a Supplemental
Indenture dated as of June 13, 1996 and amended and restated by a Second Amended
and Restated Supplemental Indenture dated as of May 15, 1997 ("Indenture")
between the Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx. 77aaa-77bbbb), as
in effect on the date of execution of the Indenture. The Securities are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are unsecured general obligations of the
Company limited to $115,000,000 in aggregate principal amount, plus amounts, if
any, sufficient to pay interest on outstanding Securities as set forth in
Paragraph 2 hereof. The Securities will rank pari passu with the Company's 10
3/4% Senior Subordinated Notes due 2004.
5. OPTIONAL REDEMPTION. The Securities are not redeemable prior to their
Stated Maturity.
6. RIGHT TO REQUIRE REPURCHASE. Following the occurrence of any Change in
Control, each Holder will have the right to require that the Company repurchase
(a "Change in Control Repurchase") such Holder's Securities at a purchase price
equal to 101% of the aggregate principal amount of the Securities, plus accrued
and unpaid interest thereon, if any, to the date of repurchase. Within 30 days
after any Change in Control, the Company or, at the Company's request, the
Trustee, shall cause to be mailed a notice to all Holders notifying such Holders
of the occurrence
A-4
of such Change in Control, the Holder's rights arising as a result thereof and
the procedures to be followed by Holders wishing to exercise such rights.
A Holder of Securities may exercise the right to require a Change in
Control Repurchase after receipt of notice of the existence of such right by
completing the form entitled "OPTION OF HOLDER TO ELECT PURCHASE" appearing on
this Security and by complying with the other procedures set forth in such
notice. Any portion of Securities with respect to which the Holder wishes to
exercise such right must be in integral multiples of $1,000.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Securities may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Securities then outstanding, and
any existing default under, or compliance with any provision of, the Indenture
may be waived (other than any continuing Default or Event of Default in the
payment of interest or premium, if any, on or the principal of the Securities or
in respect of a provision under the Indenture which cannot be modified or
amended without the consent of the Holder of each Security then outstanding)
with the consent of the Holders of a majority in principal amount of the
Securities then outstanding. Without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency; to provide for the assumption of the
Company's obligations to Holders in the case of a merger or acquisition; to
evidence and provide for the acceptance of appointment of any successor Trustee
under the Indenture; to make any change that does not adversely affect the legal
rights of any Holder; or to comply with the requirements of the Trust Indenture
Act of 1939, as amended.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may be subject to
the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of the Indenture.
Without the consent of each Holder affected, the Company may not, among
other things, (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, (ii) reduce the principal amount of,
or premium, if any, or interest on, any Security, (iii) modify the subordination
provisions of the Indenture in a manner adverse to the Holders, (iv) change the
place of payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, (v) adversely affect the right of
Holders to require the Company to make a Change in Control Repurchase or modify
the obligations of the Company to make an Asset Sale Offer or modify the
redemption provisions of the Indenture, (vi) impair the right of a Holder to
institute suit for the enforcement of payment of the principal of and premium,
if any, and interest on any Security on or after the Stated Maturity thereof (or
in the case of a redemption, on or after the redemption date) or (vii) reduce
the percentage in principal amount of Securities the consent of whose Holders is
required for any modification or amendment of the Indenture, or the consent of
whose Holders is required for any waiver of compliance with certain provisions
of the Indenture or certain Defaults or Events of Default thereunder.
10. DEFAULTS AND REMEDIES. Events of Default include: (i) default in
payment of principal or premium on the Securities; (ii) default in payment of
interest on the Securities for 30 days; (iii) failure by the Company for 45 days
after notice to it to comply with any of its other agreements in the Indenture
or the Securities; (iv) any
A-5
acceleration of Indebtedness of the Company or its Subsidiaries having an
outstanding principal amount of $50 million or a failure to pay such
Indebtedness at its stated maturity; and (v) certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be immediately due and payable for an amount
equal to 100% of the principal amount of the Securities, and premium, if any,
plus accrued interest to the date of payment, except that in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Securities become due and payable immediately without further action
or notice. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest or that resulted from the failure of
the Company to comply with its obligations with respect to Holders' rights to
require repurchase of Securities upon a Change in Control) if it determines that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities 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 Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
13. AUTHENTICATION. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (--tenants in common), TEN ENT
(--tenants by the entireties), JT TEN (--joint tenants with right of
survivorship and not as tenants in common), CUST (--Custodian), and U/G/M/A
(--Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Secretary
A-6
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
----------------------------------------------------------------
(Insert assignee's Soc. Sec. or Tax I.D. no.)
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________ to transfer
this Security 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 Security)
Signature Guarantee:____________________________
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.7 of the Indenture, check the box:
YES [ ]
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 3.7 of the Indenture, state the amount you elect to
have purchased: $_______________.
Date: ______________
Your Signature:__________________________
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee:_______________________________
A-8
[FORM OF SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES2]
The following exchanges of a part of this Global Security for Definitive
Securities have been made.
Amount of Amount of Principal Amount of
decrease in increase in this Global Security
Principal Amount Principal Amount following such Signature of autho
Date of of this Global of this Global decrease (or rized officer of
Exchange Security Security increase) Trustee
-------- ---------------- ---------------- -------------------- ------------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
--------
2 This schedule should be included only if the Security is issued in global
form.
A-9
EXHIBIT B
LEGEND FOR GLOBAL SECURITY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS SECURITY 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 SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
B-1
9 5/8% SENIOR SUBORDINATED NOTES DUE 2002, SERIES A
Cusip No. $
INTEGRATED HEALTH SERVICES, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars [or such greater or lesser amount as indicated on the Schedule of
Exchanges of Definitive Securities on the reverse hereof]* on May 31, 2002
Interest Payment Dates: May 31 and November 30
Record Dates: May 15 and November 15
Authentication: Dated: , 1995
This is one of the Securities referred to in the within-mentioned Indenture.
SIGNET TRUST COMPANY,
as Trustee INTEGRATED HEALTH SERVICES, INC.
By: By:
-------------------------- -----------------------------
Authorized Officer
By:
-----------------------------
(SEAL)
--------
* This phrase should be included only if the Security is issued in global
form.
B-2
9 5/8% SENIOR SUBORDINATED NOTES DUE 2002, SERIES A
1. INTEREST. INTEGRATED HEALTH SERVICES, INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
(which has been exchanged for one of the Company's 9 5/8% Senior Subordinated
Notes due 2002 (the "Rule 144A Notes)) at 9 5/8% per annum from the date this
Security is issued until maturity. The Company will pay interest semiannually on
May 31 and November 30 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 Securities will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from the most recent date on which
interest was paid on the Rule 144A Notes or, if no interest was paid on the Rule
144A Notes, from the date of original issuance of the Rule 144A Notes; provided,
that if there is no existing Default in the payment of interest, and if this
Security 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 November 30, 1995. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. In the case of a Security to
be repurchased by the Company in connection with a Change in Control Repurchase
pursuant to paragraph 6, on or after an interest payment record date and prior
to the next Interest Payment Date, the registered holder of such Security as of
such record date shall be entitled to accrued and unpaid interest to the
repurchase date, as provided in paragraph 6 below. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Company will
pay the principal of, premium, if any, and interest on the Securities in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay such amounts
by check payable in such money mailed to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, SIGNET TRUST COMPANY, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-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 Securities under an Amended and
Restated Supplemental Indenture dated as of May 15, 1995, as subsquently
supplemented by a Supplemental Indenture dated as of June 13, 1996 and amended
and restated by a Second Amended and Restated Supplemental Indenture dated as of
May 15, 1997 ("Indenture") between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa- 77bbbb), as in effect on the date of execution of the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are unsecured general obligations of the Company limited to
$115,000,000 in aggregate principal amount, plus amounts, if any, sufficient to
pay interest on outstanding Securities as set forth in Paragraph 2 hereof. The
Securities will rank pari passu with the Company's 10 3/4% Senior Subordinated
Notes due 2004 and the Company's 9 5/8% Senior Subordinated Notes due 2002.
5. OPTIONAL REDEMPTION. The Securities are not redeemable prior to their
Stated Maturity.
6. RIGHT TO REQUIRE REPURCHASE. Following the occurrence of any Change in
Control, each Holder will have the right to require that the Company repurchase
(a "Change in Control Repurchase") such Holder's Securities at a purchase price
equal to 101% of the aggregate principal amount of the Securities, plus accrued
and unpaid interest thereon, if any, to the date of repurchase. Within 30 days
after any Change in Control, the Company or, at the Company's request, the
Trustee, shall cause to be mailed a notice to all Holders notifying such Holders
of the occurrence of such Change in Control, the Holder's rights arising as a
result thereof and the procedures to be followed by Holders wishing to exercise
such rights.
A Holder of Securities may exercise the right to require a Change in
Control Repurchase after receipt of notice of the existence of such right by
completing the form entitled "OPTION OF HOLDER TO ELECT PURCHASE" appearing on
this Security and by complying with the other procedures set forth in such
notice. Any portion of Securities with respect to which the Holder wishes to
exercise such right must be in integral multiples of $1,000.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to
B-3
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Securities may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Securities then outstanding, and
any existing default under, or compliance with any provision of, the Indenture
may be waived (other than any continuing Default or Event of Default in the
payment of interest or premium, if any, on or the principal of the Securities or
in respect of a provision under the Indenture which cannot be modified or
amended without the consent of the Holder of each Security then outstanding)
with the consent of the Holders of a majority in principal amount of the
Securities then outstanding. Without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency; to provide for the assumption of the
Company's obligations to Holders in the case of a merger or acquisition; to
evidence and provide for the acceptance of appointment of any successor Trustee
under the Indenture; to make any change that does not adversely affect the legal
rights of any Holder; or to comply with the requirements of the Trust Indenture
Act of 1939, as amended.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may be subject to
the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of the Indenture.
Without the consent of each Holder affected, the Company may not, among
other things, (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, (ii) reduce the principal amount of,
or premium, if any, or interest on, any Security, (iii) modify the subordination
provisions of the Indenture in a manner adverse to the Holders, (iv) change the
place of payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, (v) adversely affect the right of
Holders to require the Company to make a Change in Control Repurchase or modify
the obligations of the Company to make an Asset Sale Offer or modify the
redemption provisions of the Indenture, (vi) impair the right of a Holder to
institute suit for the enforcement of payment of the principal of and premium,
if any, and interest on any Security on or after the Stated Maturity thereof (or
in the case of a redemption, on or after the redemption date) or (vii) reduce
the percentage in principal amount of Securities the consent of whose Holders is
required for any modification or amendment of the Indenture, or the consent of
whose Holders is required for any waiver of compliance with certain provisions
of the Indenture or certain Defaults or Events of Default thereunder.
10. DEFAULTS AND REMEDIES. Events of Default include: (i) default in
payment of principal or premium on the Securities; (ii) default in payment of
interest on the Securities for 30 days; (iii) failure by the Company for 45 days
after notice to it to comply with any of its other agreements in the Indenture
or the Securities; (iv) any acceleration of Indebtedness of the Company or its
Subsidiaries having an outstanding principal amount of $50 million or a failure
to pay such Indebtedness at its stated maturity; and (v) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities may declare all the Securities to be immediately due and
payable for an amount equal to 100% of the principal amount of the Securities,
and premium, if any, plus accrued interest to the date of payment, except that
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of principal or interest or that resulted from the
failure of the Company to comply with its obligations with respect to Holders'
rights to require repurchase of Securities upon a Change in Control) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based
B-4
on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
13. AUTHENTICATION. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (--tenants in common), TEN ENT
(--tenants by the entireties), JT TEN (--joint tenants with right of
survivorship and not as tenants in common), CUST (--Custodian), and U/G/M/A
(--Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Secretary
B-5
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
----------------------------------------------------------------
(Insert assignee's Soc. Sec. or Tax I.D. no.)
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________ to transfer
this Security 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 Security)
Signature Guarantee:____________________________
B-6
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.7 of the Indenture, check the box:
YES [ ]
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 3.7 of the Indenture, state the amount you elect to
have purchased: $_______________.
Date: ______________
Your Signature:__________________________
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee:_______________________________
B-7
[FORM OF SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES*]
The following exchanges of a part of this Global Security for Definitive
Securities have been made.
Amount of Amount of Principal Amount of
decrease in increase in this Global Security
Principal Amount Principal Amount following such Signature of autho
Date of of this Global of this Global decrease (or rized officer of
Exchange Security Security increase) Trustee
-------- ---------------- ---------------- -------------------- ------------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
--------
* This schedule should be included only if the Security is issued in global
form.
B-8
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
OF RULE 144A NOTES]
CERTIFICATE FOR EXCHANGE OR TRANSFER
Re: 9 5/8% Senior Subordinated Notes due 2002 ("Rule 144A Notes")
This Certificate relates to $_________ Principal amount of Securities held
in *__________ book-entry or *__________ definitive form by _________________
(the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such security, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Notes and as provided in Section 2.5 of such
Indenture, the transfer of this Security does not require registration under the
Securities Act (as defined below) because*:
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.5(a)(ii)(A) or Section
2.5(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional buyer"
(as defined in rule 144A under the Securities Act of 1933, as amended (the
"Securities Act") in reliance on Rule 144A (in satisfaction of Section
2.5(a)(ii)(B), section 2.5(b)(i) or Section 2.5(d)(i)(B) of the Indenture) or
pursuant to an exemption from registration in accordance with Regulation S under
the Securities Act (in satisfaction of Section 2.5(a)(ii)(B) or Section
2.5(d)(i)(B) of the Indenture.)
[ ] Such Security is being transferred in accordance with Rule 144 under
the Securities Act, or pursuant to an effective registration statement under the
Securities Act.
[ ] Such Security is being transferred in reliance and in compliance with
an exemption from the registration requirements of the Securities Act, other
than Rule 144A, 144 or 145 or Regulation S under the Securities Act. An opinion
of counsel to the effect that such transfer does not require registration under
the Securities Act accompanies this Certificate.
-----------------------------------------------------
[INSERT NAME OF TRANSFEROR]
By:__________________________________________________
Date:________________________
-----------------------------
--------
* Check applicable box.
C-1
