Exhibit 99.3
RES-CARE, INC.,
THE GUARANTORS named herein
and
NATIONAL CITY BANK, as Trustee
INDENTURE
Dated as of November 15, 2001
10 5/8% Senior Notes due 2008
CROSS-REFERENCE TABLE
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) N.A.
(b) 7.08; 7.10; 11.02
(b)(1) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A
312 (a) 2.06
(b) 11.03
(c) 11.03
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 11.02
(d) 7.06
314 (a) 4.02; 4.04; 11.02
(b) N.A.
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N.A.
(d) N.A.
(e) 11.05
(f) N.A.
315 (a) 7.01(b)
(b) 7.05; 11.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.12
316 (a) (last sentence) 2.10
(a) (1) (A) 6.05
(a) (1) (B) 6.04
(a) (2) N.A.
(b) 6.08
(c) 8.04
317 (a) (1) 6.09
(a) (2) 6.10
(b) 2.05; 7.12
i
318 (a) 11.01
---------------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................................1
SECTION 1.01 Definitions.......................................................................1
SECTION 1.02 Other Definitions................................................................31
SECTION 1.03 Incorporation by Reference of Trust Indenture Act................................32
SECTION 1.04 Rules of Construction............................................................33
ARTICLE II THE NOTES........................................................................33
SECTION 2.01 Amount of Notes..................................................................33
SECTION 2.02 Form and Dating..................................................................34
SECTION 2.03 Execution and Authentication.....................................................35
SECTION 2.04 Registrar and Paying Agent.......................................................35
SECTION 2.05 Paying Agent To Hold Money in Trust..............................................36
SECTION 2.06 Holder Lists.....................................................................36
SECTION 2.07 Transfer and Exchange............................................................36
SECTION 2.08 Replacement Notes................................................................37
SECTION 2.09 Outstanding Notes................................................................38
SECTION 2.10 Treasury Notes...................................................................38
SECTION 2.11 Temporary Notes..................................................................38
SECTION 2.12 Cancellation.....................................................................39
SECTION 2.13 Defaulted Interest...............................................................39
SECTION 2.14 CUSIP Number.....................................................................39
SECTION 2.15 Deposit of Moneys; Methods of Receiving Payments on the Notes....................40
SECTION 2.16 Book-Entry Provisions for Global Notes...........................................40
SECTION 2.17 Special Transfer Provisions......................................................42
SECTION 2.18 Computation of Interest..........................................................44
ARTICLE III REDEMPTION.......................................................................44
SECTION 3.01 Election To Redeem; Notices to Trustee...........................................44
SECTION 3.02 Selection by Trustee of Notes To Be Redeemed.....................................44
SECTION 3.03 Notice of Redemption.............................................................45
SECTION 3.04 Effect of Notice of Redemption...................................................46
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 3.05 Deposit of Redemption Price......................................................46
SECTION 3.06 Notes Redeemed in Part...........................................................47
ARTICLE IV COVENANTS........................................................................47
SECTION 4.01 Payment of Notes.................................................................47
SECTION 4.02 Reports to Holders...............................................................47
SECTION 4.03 Waiver of Stay, Extension or Usury Laws..........................................48
SECTION 4.04 Compliance Certificate...........................................................48
SECTION 4.05 Taxes............................................................................49
SECTION 4.06 Limitations on Additional Indebtedness...........................................49
SECTION 4.07 Limitations on Layering Indebtedness.............................................51
SECTION 4.08 Limitations on Restricted Payments...............................................51
SECTION 4.09 Limitations on Asset Sales.......................................................54
SECTION 4.10 Limitations on Transactions with Affiliates......................................56
SECTION 4.11 Limitations on Liens.............................................................57
SECTION 4.12 Conduct of Business..............................................................58
SECTION 4.13 Additional Note Guarantees.......................................................58
SECTION 4.14 Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries.59
SECTION 4.15 Limitations on Designation of Unrestricted Subsidiaries..........................61
SECTION 4.16 Limitations on Sale and Leaseback Transactions...................................62
SECTION 4.17 Maintenance of Properties; Insurance; Compliance with Law........................63
SECTION 4.18 Payments for Consent.............................................................63
SECTION 4.19 Legal Existence..................................................................63
SECTION 4.20 Change of Control Offer..........................................................64
SECTION 4.21 Calculation of Original Issue Discount...........................................64
ARTICLE V SUCCESSOR CORPORATION............................................................65
SECTION 5.01 Limitations on Mergers, Consolidations, Etc......................................65
SECTION 5.02 Successor Person Substituted.....................................................67
ARTICLE VI DEFAULTS AND REMEDIES............................................................67
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6.01 Events of Default................................................................67
SECTION 6.02 Acceleration.....................................................................69
SECTION 6.03 Other Remedies...................................................................69
SECTION 6.04 Waiver of Past Defaults and Events of Default....................................70
SECTION 6.05 Control by Majority..............................................................70
SECTION 6.06 Limitation on Suits..............................................................70
SECTION 6.07 No Personal Liability of Directors, Officers, Employees and Stockholders.........71
SECTION 6.08 Rights of Holders To Receive Payment.............................................71
SECTION 6.09 Collection Suit by Trustee.......................................................71
SECTION 6.10 Trustee May File Proofs of Claim.................................................71
SECTION 6.11 Priorities.......................................................................72
SECTION 6.12 Undertaking for Costs............................................................72
SECTION 6.13 Restoration of Rights and Remedies...............................................72
ARTICLE VII TRUSTEE..........................................................................73
SECTION 7.01 Duties of Trustee................................................................73
SECTION 7.02 Rights of Trustee................................................................74
SECTION 7.03 Individual Rights of Trustee.....................................................75
SECTION 7.04 Trustee's Disclaimer.............................................................75
SECTION 7.05 Notice of Defaults...............................................................75
SECTION 7.06 Reports by Trustee to Holders....................................................75
SECTION 7.07 Compensation and Indemnity.......................................................76
SECTION 7.08 Replacement of Trustee...........................................................77
SECTION 7.09 Successor Trustee by Consolidation, Merger, etc..................................78
SECTION 7.10 Eligibility; Disqualification....................................................78
SECTION 7.11 Preferential Collection of Claims Against Issuer.................................78
SECTION 7.12 Paying Agents....................................................................78
ARTICLE VIII AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................................79
SECTION 8.01 Without Consent of Holders.......................................................79
SECTION 8.02 With Consent of Holders..........................................................79
v
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 8.03 Compliance with Trust Indenture Act..............................................81
SECTION 8.04 Revocation and Effect of Consents................................................81
SECTION 8.05 Notation on or Exchange of Notes.................................................82
SECTION 8.06 Trustee To Sign Amendments, etc..................................................82
ARTICLE IX DISCHARGE OF INDENTURE; DEFEASANCE...............................................82
SECTION 9.01 Discharge of Indenture...........................................................82
SECTION 9.02 Legal Defeasance.................................................................83
SECTION 9.03 Covenant Defeasance..............................................................84
SECTION 9.04 Conditions to Legal Defeasance or Covenant Defeasance............................84
SECTION 9.05 Deposited Money and U.S. Government Obligations To Be Held in Trust; Other
Miscellaneous Provisions....................................................86
SECTION 9.06 Reinstatement....................................................................86
SECTION 9.07 Moneys Held by Paying Agent......................................................87
SECTION 9.08 Moneys Held by Trustee...........................................................87
ARTICLE X GUARANTEE OF NOTES...............................................................87
SECTION 10.01 Guarantee.......................................................................87
SECTION 10.02 Execution and Delivery of Guarantee.............................................88
SECTION 10.03 Limitation of Guarantee.........................................................89
SECTION 10.04 Release of Guarantor............................................................89
SECTION 10.05 Waiver of Subrogation...........................................................90
ARTICLE XI MISCELLANEOUS....................................................................90
SECTION 11.01 Trust Indenture Act Controls....................................................90
SECTION 11.02 Notices.........................................................................90
SECTION 11.03 Communications by Holders with Other Holders....................................92
SECTION 11.04 Certificate and Opinion as to Conditions Precedent..............................92
SECTION 11.05 Statements Required in Certificate and Opinion..................................92
SECTION 11.06 Rules by Trustee and Agents.....................................................93
SECTION 11.07 Business Days; Legal Holidays...................................................93
SECTION 11.08 Governing Law...................................................................93
SECTION 11.09 No Adverse Interpretation of Other Agreements...................................93
vi
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 11.10 No Recourse Against Others......................................................93
SECTION 11.11 Successors......................................................................94
SECTION 11.12 Multiple Counterparts...........................................................94
SECTION 11.13 Table of Contents, Headings, etc................................................94
SECTION 11.14 Separability....................................................................94
Exhibit A. Form of Note ...................................................................A-1
Exhibit B. Form of Legend for Rule 144A Notes and Other Notes That Are Restricted Notes.........B-1
Exhibit C. Form of Legend for Regulation S Note.................................................C-1
Exhibit D. Form of Legend for Global Note.......................................................D-1
Exhibit E. Form of Certificate To Be Delivered In Connection with
Transfers to Non-QIB Accredited Investors............................................E-1
Exhibit F. Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S.............................................................F-1
Exhibit G. Form of Notation of Guarantee........................................................G-1
Exhibit H. Form of Schedule of Changes of Interests in the Global Note..........................H-1
vii
INDENTURE, dated as of November 15, 2001, among RES-CARE,
INC., a Kentucky corporation, as issuer (the "Issuer"), the Guarantors (as
hereinafter defined) and National City Bank, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Indebtedness" means (1) with respect to any Person
that becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (2) with
respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person
(other than the Issuer or a Restricted Subsidiary) existing at the time such
Person is merged with or into the Issuer or a Restricted Subsidiary, or
Indebtedness expressly assumed by the Issuer or any Restricted Subsidiary in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition.
"Additional Notes" shall mean the additional Notes having
identical terms and conditions to the Notes issued pursuant to Article Two and
in compliance with SECTION 4.06.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee, of such
Guarantor at such date and (y) the present fair salable value of the assets of
such Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts and all other fixed and
contingent liabilities (after giving effect to all other fixed and contingent
liabilities and after giving effect to any collection from any Subsidiary of
such Guarantor in respect of the obligations of such Guarantor under the
Guarantee), excluding Indebtedness in respect of the Guarantee, as they become
absolute and matured.
"Affiliate" of any Person means any other Person which
directly or indirectly controls or is controlled by, or is under direct or
indirect common control with, the referenced Person. For purposes of SECTION
4.10, Affiliates shall be deemed to include, with respect to any Person, any
other Person (1) which beneficially owns or holds, directly or indirectly, 10%
or more of any class of the Voting Stock of the referent
1
Person, (2) of which 10% or more of the Voting Stock is beneficially owned or
held, directly or indirectly, by the referenced Person or (3) with respect to an
individual, any immediate family member of such Person. For purposes of this
definition, "control" of a Person shall mean 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.
"Agent" means any Registrar, Paying Agent or agent for service
or notices and demands.
"amend" means to amend, supplement, restate, amend and restate
or otherwise modify; and "amendment" shall have a correlative meaning.
"asset" means any asset or property.
"Asset Acquisition" means
(1) an Investment by the Issuer or any Restricted
Subsidiary of the Issuer in any other Person if, as a
result of such Investment, such Person shall become a
Restricted Subsidiary of the Issuer, or shall be
merged with or into the Issuer or any Restricted
Subsidiary of the Issuer, or
(2) the acquisition by the Issuer or any Restricted
Subsidiary of the Issuer of all or substantially all
of the assets of any other Person or any division or
line of business of any other Person.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease, assignment or other disposition by the Issuer or any Restricted
Subsidiary to any Person other than the Issuer or any Restricted Subsidiary
(including by means of a Sale and Leaseback Transaction or a merger or
consolidation) (collectively, for purposes of this definition, a "transfer"), in
one transaction or a series of related transactions, of any assets (including
Equity Interests) of the Issuer or any of its Restricted Subsidiaries other than
in the ordinary course of business. For purposes of this definition, the term
"Asset Sale" shall not include:
(1) transfers of cash or Cash Equivalents;
(2) transfers of assets (including Equity Interests) that
are governed by, and made in accordance with, SECTION
5.01;
(3) Permitted Investments and Restricted Payments
permitted under SECTION 4.08;
(4) the creation or realization of any Permitted Lien;
and
2
(5) any transfer or series of related transfers that, but
for this clause, would be Asset Sales, if after
giving effect to such transfers, the aggregate Fair
Market Value of the assets transferred in such
transaction or any such series of related
transactions does not exceed $1.0 million.
"Attributable Indebtedness" when used with respect to any Sale
and Leaseback Transaction, means, as at the time of determination, the present
value (discounted at a rate equivalent to the Issuer's then-current weighted
average cost of funds for borrowed money as at the time of determination,
compounded on a semi-annual basis) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in any such Sale
and Leaseback Transaction.
"Bankruptcy Law" means Title 11 of the United States Code, as
amended, or any similar federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
board of directors or comparable governing body of such Person.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Issuer and to be in full force and effect, and delivered to the
Trustee.
"Borrowing Base" means, as of any date, an amount equal to 70%
of the face amount of "Eligible Accounts Receivable" (as defined in the Credit
Facility Agreement) of the Issuer and its Restricted Subsidiaries as of the end
of the most recent fiscal quarter preceding such date that were not more than 90
days past due, calculated on a consolidated basis and in accordance with GAAP.
"Capital Expenditures" shall mean, with respect to any Person,
for any period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and, without duplication, the amount of all Capitalized Lease Obligations
incurred by such Person during such period.
"Capitalized Lease" means a lease required to be capitalized
for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under a Capitalized
Lease, and the amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means:
3
(1) marketable obligations with a maturity of 360 days or
less issued or directly and fully guaranteed or
insured by the United States of America or any agency
or instrumentality thereof;
(2) demand and time deposits and certificates of deposit
or acceptances with a maturity of 180 days or less of
any financial institution that is a member of the
Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500
million and is assigned at least a "B" rating by
Thomson Financial BankWatch;
(3) commercial paper maturing no more than 180 days from
the date of creation thereof issued by a corporation
that is not the Issuer or an Affiliate of the Issuer,
and is organized under the laws of any State of the
United States of America or the District of Columbia
and rated at least A-1 by S&P or at least P-1 by
Xxxxx'x;
(4) repurchase obligations with a term of not more than
ten days for underlying securities of the types
described in clause (1) above entered into with any
commercial bank meeting the specifications of clause
(2) above; and
(5) investments in money market or other mutual funds
substantially all of whose assets comprise securities
of the types described in clauses (1) through (4)
above.
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause that person or group
shall be deemed to have "beneficial ownership" of all
securities that any such person or group has the
right to acquire, whether such right is exercisable
immediately or only after the passage of time),
directly or indirectly, of Voting Stock representing
more than 35% of the voting power of the total
outstanding Voting Stock of the Issuer;
(2) during any period of two consecutive years,
individuals who at the beginning of such period
constituted the Board of Directors of the Issuer
(together with any new directors whose election to
such Board of Directors or whose nomination for
election by the stockholders of the Issuer was
approved by a vote of the majority of the directors
of the Issuer then still in office who were either
directors at the beginning of such period or whose
election or nomination for election was previously so
approved) cease for any
4
reason to constitute a majority of the Board of
Directors of the Issuer;
(3) (a) all or substantially all of the assets of the
Issuer and the Restricted Subsidiaries taken as a
whole are sold or otherwise transferred to any Person
or (b) the Issuer consolidates or merges with or into
another Person or any Person consolidates or merges
with or into the Issuer, in either case under this
clause (3), in one transaction or a series of related
transactions in which immediately after the
consummation thereof Persons owning Voting Stock
representing in the aggregate 100% of the total
voting power of the Voting Stock of the Issuer
immediately before such consummation do not own
Voting Stock representing a majority of the total
voting power of the Voting Stock of the Issuer or the
surviving or transferee Person; or
(4) the Issuer shall adopt a Plan of Liquidation or
dissolution or any such plan shall be approved by the
stockholders of the Issuer.
"Consolidated Amortization Expense" for any period means the
amortization expense of the Issuer and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Cash Flow Available for Fixed Charges" for any
period means, without duplication, the sum of the amounts for such period of
(1) Consolidated Net Income, plus
(2) in each case only to the extent (and in the same
proportion) deducted in determining Consolidated Net
Income and with respect to the portion of
Consolidated Net Income attributable to any
Restricted Subsidiary only if a corresponding amount
would be permitted at the date of determination to be
distributed to the Issuer by such Restricted
Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its
stockholders:
(a) Consolidated Income Tax Expense,
(b) Consolidated Amortization Expense (but only
to the extent not included in Consolidated
Interest Expense),
(c) Consolidated Depreciation Expense,
5
(d) Consolidated Interest Expense, and
(e) all other non-cash items reducing the
Consolidated Net Income (excluding any
non-cash charge that results in an accrual
of a reserve for cash charges in any future
period) for such period,
in each case determined on a consolidated basis in
accordance with GAAP, minus
(3) the aggregate amount of all non-cash items,
determined on a consolidated basis, to the extent
such items increased Consolidated Net Income for such
period.
"Consolidated Depreciation Expense" for any period means the
depreciation expense of the Issuer and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
Consolidated Cash Flow Available for Fixed Charges during the most recent four
consecutive full fiscal quarters for which financial statements are available
(the "Four-Quarter Period") ending on or before the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the "Transaction Date") to Consolidated Interest Expense for the
Four-Quarter Period. For purposes of this definition, Consolidated Cash Flow
Available for Fixed Charges and Consolidated Interest Expense shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence of any Indebtedness or the issuance of
any Preferred Stock of the Issuer or any Restricted
Subsidiary (and the application of the proceeds
thereof) and any repayment of other Indebtedness or
redemption of other Preferred Stock (and the
application of the proceeds therefrom) (other than
the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital
purposes pursuant to any revolving credit
arrangement) occurring during the Four-Quarter Period
or at any time after the last day of the Four-Quarter
Period and on or before the Transaction Date, as if
such incurrence, repayment, issuance or redemption,
as the case may be (and the application of the
proceeds thereof), occurred on the first day of the
Four-Quarter Period; and
(2) any Asset Sale or Asset Acquisition (including,
without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of
the Issuer or any Restricted Subsidiary (including
any Person who becomes a Restricted Subsidiary as a
6
result of such Asset Acquisition) incurring Acquired
Indebtedness and also including any Consolidated Cash
Flow Available for Fixed Charges (including any pro
forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the
Exchange Act) associated with any such Asset
Acquisition) occurring during the Four-Quarter Period
or at any time after the last day of the Four-Quarter
Period and on or before the Transaction Date, as if
such Asset Sale or Asset Acquisition or other
disposition (including the incurrence of, or
assumption or liability for, any such Indebtedness or
Acquired Indebtedness) occurred on the first day of
the Four-Quarter Period.
If the Issuer or any Restricted Subsidiary directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if the
Issuer or such Restricted Subsidiary had directly incurred or otherwise assumed
such guaranteed Indebtedness.
In calculating Consolidated Interest Expense for purposes of
determining the denominator (but not the numerator) of the Consolidated Fixed
Charge Coverage Ratio:
(1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per
annum equal to the rate of interest on this
Indebtedness in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on
the Transaction Date may optionally be determined at
an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate,
or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in
effect during the Four-Quarter Period; and
(3) notwithstanding clause (1) or (2) above, interest on
Indebtedness determined on a fluctuating basis, to
the extent such interest is covered by agreements
with a term of at least one year after the
Transaction Date relating to Hedging Obligations,
shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of
these agreements.
"Consolidated Income Tax Expense" for any period means the
provision for taxes of the Issuer and the Restricted Subsidiaries, determined on
a consolidated basis in accordance with GAAP.
7
"Consolidated Indebtedness" means, as of any date, the total
Indebtedness of the Issuer and the Restricted Subsidiaries as of such date,
determined on a consolidated basis.
"Consolidated Interest Expense" for any period means the sum,
without duplication, of the total interest expense of the Issuer and the
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP and including, without duplication,
(1) imputed interest on Capitalized Lease Obligations and
Attributable Indebtedness,
(2) commissions, discounts and other fees and charges
owed with respect to letters of credit securing
financial obligations, bankers' acceptance financing
and receivables financings,
(3) the net costs associated with Hedging Obligations,
(4) amortization of debt issuance costs, debt discount or
premium and other financing fees and expenses,
(5) the interest portion of any deferred payment
obligations,
(6) all other non-cash interest expense,
(7) the product of (a) all dividend payments on any
series of Disqualified Equity Interests of the Issuer
or any Preferred Stock of any Restricted Subsidiary
(other than any such Disqualified Equity Interests or
any Preferred Stock held by the Issuer or a
Wholly-Owned Restricted Subsidiary), multiplied by
(b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current
combined federal, state and local statutory tax rate
of the Issuer and the Restricted Subsidiaries,
expressed as a decimal,
(8) all interest payable with respect to discontinued
operations, and
(9) all interest on any Indebtedness of any other Person
guaranteed by the Issuer or any Restricted
Subsidiary.
"Consolidated Net Income" for any period means the net income
(or loss) of the Issuer and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided, however,
that there shall be excluded from such net income (to the extent otherwise
included therein), without duplication:
(1) the net income (or loss) of any Person (other than a
Restricted Subsidiary) in which any Person other than
the Issuer and the
8
Restricted Subsidiaries has an ownership interest,
except to the extent that cash in an amount equal to
any such income has actually been received by the
Issuer or any of its Restricted Subsidiaries during
such period;
(2) except to the extent includible in the Consolidated
Net Income of the Issuer pursuant to the foregoing
clause (1), the net income (or loss) of any Person
that accrued before the date that (a) such Person
becomes a Restricted Subsidiary or is merged into or
consolidated with the Issuer or any Restricted
Subsidiary or (b) the assets of such Person are
acquired by the Issuer or any Restricted Subsidiary;
(3) the net income of any Restricted Subsidiary during
such period to the extent that the declaration or
payment of dividends or similar distributions by such
Restricted 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 Restricted Subsidiary during such period;
(4) for the purposes of calculating the Restricted
Payments Basket only, in the case of a successor to
the Issuer by consolidation, merger or transfer of
its assets, any income (or loss) of the successor
prior to such merger, consolidation or transfer of
assets;
(5) other than for purposes of calculating the Restricted
Payments Basket, any gain (or loss), together with
any related provisions for taxes on any such gain (or
the tax effect of any such loss), realized during
such period by the Issuer or any Restricted
Subsidiary upon (a) the acquisition of any
securities, or the extinguishment of any
Indebtedness, of the Issuer or any Restricted
Subsidiary or (b) any Asset Sale by the Issuer or any
Restricted Subsidiary; and
(6) other than for purposes of calculating the Restricted
Payments Basket, any extraordinary gain (or
extraordinary loss), together with any related
provision for taxes on any such extraordinary gain
(or the tax effect of any such extraordinary loss),
realized by the Issuer or any Restricted Subsidiary
during such period.
In addition, any return of capital with respect to an
Investment that increased the Restricted Payments Basket pursuant to clause
(3)(d) of the first paragraph of SECTION 4.08 or decreased the amount of
Investments outstanding pursuant to clause (12) of the definition of "Permitted
Investments" shall be excluded from Consolidated Net Income for purposes of
calculating the Restricted Payments Basket.
9
"Consolidated Net Worth" means, with respect to any Person as
of any date, the consolidated stockholders' equity of such Person, determined on
a consolidated basis in accordance with GAAP, less (without duplication)
(1) any amounts thereof attributable to Disqualified
Equity Interests of such Person or its Subsidiaries
or any amount attributable to Unrestricted
Subsidiaries; and
(2) all marks to market (other than marks to market
resulting from foreign currency translations and
marks to market of tangible assets of a going concern
business made within twelve months after the
acquisition of such business) after the Issue Date in
the book value of any asset owned by such Person or a
Subsidiary of such Person.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution is located at Xxxxxxxx Xxxx
Xxxx, x/x Xxxxxxxx Xxxx Xxxx of Kentucky, Attention: Corporate Trust Office, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
"Coverage Ratio Exception" has the meaning set forth in the
proviso in the first paragraph of SECTION 4.06.
"Credit Facility" means the up to $80.0 million senior credit
facility to be entered into by the Issuer, including any notes, guarantees,
collateral and security documents, instruments and agreements executed in
connection therewith (including Hedging Obligations related to the Indebtedness
incurred thereunder), and in each case as amended or refinanced from time to
time, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including increasing the amount of borrowings or
other Indebtedness outstanding or available to be borrowed thereunder) all or
any portion of the Indebtedness under such agreements, and any successor or
replacement agreement or agreements with the same or any other agents, creditor,
lender or group of creditors or lenders.
"Credit Facility Agreement" means the Credit and Security
Agreement to be entered into by the Issuer, the Guarantors, National City Bank
of Kentucky and the banks identified therein, with respect to the Credit
Facility.
"Custodian" means any receiver, Trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Default" means (1) any Event of Default or (2) any event, act
or condition that, after notice or the passage of time or both, would be an
Event of Default.
10
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Issuer, which Person must be a clearing agency
registered under the Exchange Act.
"Designation" has the meaning given to this term in SECTION
4.15.
"Designation Amount" has the meaning given to this term in
SECTION 4.15.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interests" of any Person means any Equity
Interests of such Person that, by their terms, or by the terms of any related
agreement or of any security into which they are convertible, puttable or
exchangeable, are, or upon the happening of any event or the passage of time
would be, required to be redeemed by such Person, whether or not at the option
of the holder thereof, or mature or are mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, in whole or in part, on or before the date
which is 91 days after the final maturity date of the Notes; provided, however,
that any class of Equity Interests of such Person that, by its terms, authorizes
such Person to satisfy in full its obligations with respect to the payment of
dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise)
or repurchase thereof or otherwise by the delivery of Equity Interests that are
not Disqualified Equity Interests, and that are not convertible, puttable or
exchangeable for Disqualified Equity Interests or Indebtedness, will not be
deemed to be Disqualified Equity Interests so long as such Person satisfies its
obligations with respect thereto solely by the delivery of Equity Interests that
are not Disqualified Equity Interests; provided further, however, that any
Equity Interests that would not constitute Disqualified Equity Interests but for
provisions thereof giving holders thereof (or the holders of any security into
or for which such Equity Interests are convertible, exchangeable or exercisable)
the right to require the Issuer to redeem such Equity Interests upon the
occurrence of a change in control occurring before the final maturity date of
the Notes shall not constitute Disqualified Equity Interests if the change in
control provisions applicable to such Equity Interests are no more favorable to
such holders than the provisions described under "Change of Control" above and
such Equity Interests specifically provide that the Issuer will not redeem any
such Equity Interests pursuant to such provisions prior to the Issuer's purchase
of the Notes as required pursuant to the provisions described under "Change of
Control" above.
"Domestic Subsidiary" means any Restricted Subsidiary
organized under the laws of the United States or any State of the United States
or the District of Columbia.
"Equity Interests" of any Person means (1) any and all shares
or other equity interests (including common stock, Preferred Stock, limited
liability company
11
interests and partnership interests) in such Person and (2) all rights to
purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated) such
shares or other interests in such Person.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Exchange Notes" has the meaning given to this term in the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such assets) that
would be negotiated in an arm's-length transaction for cash between a willing
seller and a willing and able buyer, neither of which is under any compulsion to
complete the transaction, as such price is determined in good faith by the Board
of Directors of the Issuer or a duly authorized committee thereof, as evidenced
by a resolution of such board or committee.
"Foreign Subsidiary" means any Restricted Subsidiary that is
not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect on the Issue Date.
"guarantee" means a direct or indirect guarantee by any Person
of any Indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (2) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part). "Guarantee," when used as a verb, and "guaranteed" have correlative
meanings.
"Guarantors" means each Domestic Subsidiary of the Issuer on
the Issue Date, and each other Person that is required to become a Guarantor by
the terms of this Indenture after the Issue Date, in each case, until such
Person is released from its Note Guarantee.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to (1) any interest rate swap agreement, interest rate
collar agreement or
12
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates, (2) agreements or arrangements designed to
protect such Person against fluctuations in foreign currency exchange rates in
the conduct of its operations, or (3) any forward contract, commodity swap
agreement, commodity option agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in commodity prices, in
each case entered into in the ordinary course of business for bona fide hedging
purposes and not for the purpose of speculation.
"Holder" means any registered holder, from time to time, of
the Notes.
"incur" means, with respect to any Indebtedness or Obligation,
incur, create, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to such Indebtedness
or Obligation; provided, however, that (1) the Indebtedness of a Person existing
at the time such Person became a Restricted Subsidiary or at the time such
Person merged with or into the Issuer or a Restricted Subsidiary shall be deemed
to have been incurred at such time and (2) neither the accrual of interest nor
the accretion of original issue discount shall be deemed to be an incurrence of
Indebtedness.
"Indebtedness" of any Person at any date means, without
duplication:
(1) all liabilities, contingent or otherwise, 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);
(2) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all obligations of such Person in respect of letters
of credit or other similar instruments (or
reimbursement obligations with respect thereto);
(4) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred
by such Person in the ordinary course of business in
connection with obtaining goods, materials or
services;
(5) the maximum fixed redemption or repurchase price of
all Disqualified Equity Interests of such Person;
(6) all Capitalized Lease Obligations of such Person;
(7) all Indebtedness of others secured by a Lien on any
asset of such Person, whether or not such
Indebtedness is assumed by such Person;
13
(8) all Indebtedness of others guaranteed by such Person
to the extent of such guarantee; provided that
Indebtedness of the Issuer or a Restricted Subsidiary
that is guaranteed by the Issuer or another
Restricted Subsidiary shall be counted only once in
the calculation of the amount of Indebtedness of the
Issuer and its Subsidiaries on a consolidated basis;
(9) all Attributable Indebtedness;
(10) to the extent not otherwise included in this
definition, Hedging Obligations of such Person;
(11) all obligations of such Person under conditional sale
or other title retention agreements relating to
assets purchased by such Person; and
(12) liquidation value of Preferred Stock of a Subsidiary
of such Person issued and outstanding and held by any
Person other than such Person (or one of its
wholly-owned Subsidiaries or, if such Person is the
Issuer, one of its Wholly-Owned Restricted
Subsidiaries).
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, the maximum liability of such Person for any such contingent
obligations at such date and, in the case of clause (7), the lesser of (a) the
Fair Market Value of any asset subject to a Lien securing the Indebtedness of
others on the date that the Lien attaches and (b) the amount of the Indebtedness
secured. For purposes of clause (5), the "maximum fixed redemption or repurchase
price" of any Disqualified Equity Interests that do not have a fixed redemption
or repurchase price shall be calculated in accordance with the terms of such
Disqualified Equity Interests as if such Disqualified Equity Interests were
redeemed on any date on which an amount of Indebtedness outstanding shall be
required to be determined pursuant to this Indenture.
Notwithstanding the above, this Indenture does not restrict
any Unrestricted Subsidiary from incurring Indebtedness nor will Indebtedness of
any Unrestricted Subsidiaries be included in the Consolidated Fixed Charge
Coverage Ratio, as long as the Unrestricted Subsidiary incurring such
Indebtedness remains an Unrestricted Subsidiary.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Director" means a director of the Issuer who
(1) is independent with respect to the transaction at
issue;
14
(2) does not have any material financial interest in the
Issuer or any of its Affiliates (other than as a
result of holding securities of the Issuer); and
(3) has not and whose Affiliates or affiliated firm has
not, at any time during the twelve months prior to
the taking of any action hereunder, directly or
indirectly, received, or entered into any
understanding or agreement to receive, compensation,
payment or other benefit, of any type or form, from
the Issuer or any of its Affiliates in excess of
$60,000, other than customary directors' fees for
serving on the Board of Directors of the Issuer or
any Affiliate and reimbursement of out-of-pocket
expenses for attendance at the Issuer's or
Affiliate's board and board committee meetings.
"Independent Financial Advisor" means an accounting, appraisal
or investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Issuer's Board of Directors, qualified to perform the
task for which it has been engaged and disinterested and independent with
respect to the Issuer and its Affiliates; provided, however, that the prior
rendering of service to the Issuer or an Affiliate of the Issuer shall not, by
itself, disqualify the advisor.
"Initial Purchasers" means UBS Warburg LLC, Xxxxxx Brothers
Inc., Banc One Capital Markets, Inc., U.S. Bancorp Xxxxx Xxxxxxx Inc., Xxxxxxxxx
& Company, Inc. and First Analysis Securities Corporation.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) promulgated under the Securities Act.
"Intangible Assets" means, with respect to any Person, all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, write-ups of assets
over their carrying value (other than write-ups which occurred prior to the
Issue Date and other than, in connection with the acquisition of an asset, the
write-up of the value of such asset to its Fair Market Value in accordance with
GAAP on the date of acquisition) and all other items which would be treated as
intangibles on the consolidated balance sheet of such Person prepared in
accordance with GAAP.
"Interest" means, with respect to the Notes, interest and
Liquidated Damages, if any, on the Notes.
"Interest Payment Dates" means each May 15 and November 15,
commencing May 15, 2002.
"Investments" of any Person means:
15
(1) all direct or indirect investments by such Person in
any other Person in the form of loans, advances or
capital contributions or other credit extensions
constituting Indebtedness of such other Person, and
any guarantee of Indebtedness of any other Person;
(2) all purchases (or other acquisitions for
consideration) by such Person of Indebtedness, Equity
Interests or other securities of any other Person;
(3) all other items that would be classified as
investments on a balance sheet of such Person
prepared in accordance with GAAP; and
(4) the Designation of any Subsidiary as an Unrestricted
Subsidiary.
Except as otherwise expressly specified in this definition,
the amount of any Investment (other than an Investment made in cash) shall be
the Fair Market Value thereof on the date such Investment is made. The amount of
Investment pursuant to clause (4) shall be the Designation Amount determined in
accordance with SECTION 4.15. If the Issuer or any Subsidiary sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary, the Issuer shall be deemed to have made an Investment on the date of
any such sale or other disposition equal to the Fair Market Value of the Equity
Interests of and all other Investments in such Subsidiary not sold or disposed
of, which amount shall be determined by the Board of Directors of the Issuer.
Notwithstanding the foregoing, redemptions of Equity Interests of the Issuer
shall be deemed not to be Investments.
"Issue Date" means the date on which the Notes are originally
issued.
"Issuer" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article Five
and thereafter means the successor.
"Issuer Request" means any written request signed in the name
of the Issuer by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer or the
Treasurer of the Issuer and attested to by the Secretary or any Assistant
Secretary of the Issuer.
"Lien" means, with respect to any asset, any mortgage, deed of
trust, lien (statutory or other), pledge, lease, easement, restriction,
covenant, charge, security interest or other encumbrance of any kind or nature
in respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention
agreement, and any lease in the nature thereof, any option or other agreement to
sell, and any filing of, or agreement to give, any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction (other than
cautionary filings in respect of operating leases).
16
"Liquidated Damages" has the meaning set forth in the
Registration Rights Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc., and its
successors.
"Net Available Proceeds" means, with respect to any Asset
Sale, the proceeds thereof in the form of cash or Cash Equivalents, net of
(1) brokerage commissions and other fees and expenses
(including fees and expenses of legal counsel,
accountants and investment banks) of such Asset Sale;
(2) provisions for taxes payable as a result of such
Asset Sale (after taking into account any available
tax credits or deductions and any tax sharing
arrangements);
(3) amounts required to be paid to any Person (other than
the Issuer or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the
Asset Sale or having a Lien thereon;
(4) payments of unassumed liabilities (not constituting
Indebtedness) relating to the assets sold at the time
of, or within 30 days after the date of, such Asset
Sale; and
(5) appropriate amounts to be provided by the Issuer or
any Restricted Subsidiary, as the case may be, as a
reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and
retained by the Issuer or any Restricted Subsidiary,
as the case may be, after such Asset Sale, including
pensions and other post-employment benefit
liabilities, liabilities related to environmental
matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to
the Trustee; provided, however, that any amounts
remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net
Available Proceeds.
"Net Indebtedness" at the end of any period means the amount
of Indebtedness outstanding at the end of such period under the Proposed Credit
Facility (if any), less cash and Cash Equivalents at the end of such period in
excess of $15 million (provided that if Net Indebtedness shall be negative, then
Net Indebtedness shall be deemed to be zero).
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Issuer and its Restricted Subsidiaries as of such date
(excluding cash and Cash Equivalents) minus (b) the consolidated current
liabilities of the Issuer and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of
17
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Note Guarantee" means the guarantee by each Guarantor of the
Issuer's payment obligations under this Indenture and on the Notes executed
pursuant to the provisions of this Indenture.
"Notes" means the 10 5/8% Senior Notes due 2008 issued by the
Issuer, including, without limitation, the Exchange Notes, treated as a single
class of securities, as amended from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Obligation" means any principal, interest, penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offer" has the meaning set forth in the definition of "Offer
to Purchase."
"Offer Expiration Date" has the meaning set forth in the
definition of "Offer to Purchase."
"Offer to Purchase" means a written offer (the "Offer") sent
by or on behalf of the Issuer by first-class mail, postage prepaid, to each
Holder at its address appearing in the register for the Notes on the date of the
Offer offering to purchase up to the principal amount of Notes specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Offer Expiration Date") of the Offer to
Purchase, which shall be not less than 30 Business Days nor more than 60 days
after the date of such Offer, and a settlement date (the "Purchase Date") for
purchase of Notes to occur no later than three Business Days after the Offer
Expiration Date. The Offer shall contain all the information required by
applicable law to be included therein. The Offer shall also contain information
concerning the business of the Issuer and its Subsidiaries which the Issuer in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase. Such information shall include, at a minimum,
(i) the most recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the document required to be delivered to Holders pursuant to
SECTION 4.02 (which requirements may be satisfied by delivery of such documents
together with the Offer), (ii) a description of material developments in the
Issuer's business subsequent to the date of the latest of such financial
statements referred to in clause (i) (including a description of the events
requiring the Issuer to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information
18
concerning the Offer to Purchase and the events requiring the Issuer to make the
Offer to Purchase and (iv) any other information required by applicable law to
be included therein. The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding
Notes offered to be purchased by the Issuer pursuant
to the Offer to Purchase (including, if less than
100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture
requiring the Offer to Purchase) (the "Purchase
Amount");
(4) the purchase price to be paid by the Issuer for each
$1,000 aggregate principal amount of Notes accepted
for payment (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Notes registered in the name of such Holder and that
any portion of a Note tendered must be tendered in an
integral multiple of $1,000 principal amount;
(6) the place or places where Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered
but not purchased by the Issuer pursuant to the Offer
to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will
become due and payable upon each Note being accepted
for payment pursuant to the Offer to Purchase and
that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender all or any
portion of a Note pursuant to the Offer to Purchase
will be required to surrender such Note, with the
form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, at the place or
places specified in the Offer prior to the close of
business on the Offer Expiration Date (such Note
being, if the Issuer so requires, duly endorsed by,
or accompanied by a written instrument of transfer in
form satisfactory to the Issuer duly executed by, the
Holder thereof or its attorney duly authorized in
writing);
19
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Issuer receives, not
later than the close of business on the fifth
Business Day preceding the Offer Expiration Date, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Note the Holder tendered, the
certificate number of the Note the holder tendered
and a statement that such Holder is withdrawing all
or a portion of its tender;
(11) that (a) if Notes in an aggregate principal amount
less than or equal to the Purchase Amount are duly
tendered and not withdrawn pursuant to the Offer to
Purchase, the Issuer shall purchase all such Notes
and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the
Issuer shall purchase Notes having an aggregate
principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in
denominations of $1,000 principal amount or integral
multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Note is
purchased only in part, the Issuer shall execute and
deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange
for the unpurchased portion of the Note so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer.
On or before the Purchase Date, the Issuer shall (i) accept
for payment Notes or portions thereof tendered and not withdrawn pursuant to the
Offer, (ii) deposit with the Trustee U.S. Dollars sufficient to pay the Purchase
Price, plus accrued interest, if any, of all Notes to be purchased and (iii)
deliver to the Trustee Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof being purchased by the Issuer. The Trustee
shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the Purchase Price, plus accrued interest, if any, thereon.
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
November 9, 2001 pursuant to which the Notes were offered.
20
"Officer" means any of the following of the Issuer: the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer or the
Secretary.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel, which
counsel is reasonably acceptable to the Trustee, stating the matters required by
SECTION 11.05 and delivered to the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the Issuer
or any Guarantor that ranks pari passu as to payment with the Notes or the Note
Guarantees, as applicable.
"Permitted Business" means the businesses engaged in by the
Issuer and its Subsidiaries on the Issue Date as described in the Offering
Memorandum and businesses that are reasonably related thereto or reasonable
extensions thereof within the health care and youth services industries.
"Permitted Indebtedness" has the meaning given to such term
in the second paragraph of SECTION 4.06.
"Permitted Investments" means:
(1) Investments by the Issuer or any Restricted
Subsidiary in (a) any Restricted Subsidiary or (b)
any Person that is or will become immediately after
such Investment a Restricted Subsidiary or that will
merge or consolidate into the Issuer or a Restricted
Subsidiary;
(2) Investments in the Issuer by any Restricted
Subsidiary;
(3) loans and advances to directors, employees and
officers of the Issuer and the Restricted
Subsidiaries for bona fide business purposes and to
purchase Equity Interests of the Issuer not in excess
of $2.0 million at any one time outstanding;
(4) Hedging Obligations incurred pursuant to clause (4)
of the second paragraph of SECTION 4.06;
(5) Cash Equivalents;
(6) receivables owing to the Issuer or any Restricted
Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in
accordance with customary trade terms; provided,
however, that such trade terms may include such
21
concessionary trade terms as the Issuer or any such
Restricted Subsidiary deems reasonable under the
circumstances;
(7) Investments in securities of trade creditors or
customers received pursuant to any plan of
reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or
customers;
(8) Investments made by the Issuer or any Restricted
Subsidiary as a result of consideration received in
connection with an Asset Sale made in compliance with
SECTION 4.09;
(9) lease, utility and other similar deposits in the
ordinary course of business;
(10) stock, obligations or securities received in
settlement of debts created in the ordinary course of
business and owing to the Issuer or any Restricted
Subsidiary or in satisfaction of judgments;
(11) Investments in existence on the Issue Date; and
(12) other Investments in an aggregate amount not to
exceed $10.0 million at any one time outstanding
(with each Investment being valued as of the date
made and without regard to subsequent changes in
value).
The amount of Investments outstanding at any time pursuant to
clause (12) above shall be deemed to be reduced:
(a) upon the disposition or repayment of or
return on any Investment made pursuant to
clause (12) above, by an amount equal to the
return of capital with respect to such
Investment to the Issuer or any Restricted
Subsidiary (to the extent not included in
the computation of Consolidated Net Income),
less the cost of the disposition of such
Investment and net of taxes; and
(b) upon a Redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, by an
amount equal to the lesser of (x) the Fair
Market Value of the Issuer's proportionate
interest in such Subsidiary immediately
following such Redesignation, and (y) the
aggregate amount of Investments in such
Subsidiary that increased (and did not
previously decrease) the amount of
Investments outstanding pursuant to clause
(12) above.
"Permitted Liens" means the following types of Liens:
22
(1) (a) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business and (b)
Liens for taxes, assessments or governmental charges
or claims, in either case, for sums not yet
delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made in
respect thereof;
(2) Liens incurred or deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types
of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts,
performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the
payment of borrowed money);
(3) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued
or created for the account of such Person to
facilitate the purchase, shipment or storage of such
inventory or other goods;
(4) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber
documents and other assets relating to such letters
of credit and products and proceeds thereof;
(5) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or
warranty requirements of the Issuer or any Restricted
Subsidiary, including rights of offset and setoff;
(6) bankers' Liens, rights of setoff and other similar
Liens existing solely with respect to cash and Cash
Equivalents on deposit in one or more accounts
maintained by the Issuer or any Restricted
Subsidiary, in each case granted in the ordinary
course of business in favor of the bank or banks with
which such accounts are maintained, securing amounts
owing to such bank with respect to cash management
and operating account arrangements, including those
involving pooled accounts and netting arrangements;
provided, however, that in no case shall any such
Liens secure (either directly or indirectly) the
repayment of any Indebtedness;
23
(7) leases or subleases (or any Liens related thereto)
granted to others that do not materially interfere
with the ordinary course of business of the Issuer or
any Restricted Subsidiary;
(8) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(9) Liens securing all of the Notes and Liens securing
any Note Guarantee;
(10) Liens existing on the Issue Date securing
Indebtedness outstanding on the Issue Date and Liens
securing Refinancing Indebtedness, provided that such
Liens do not extend to or cover any assets or
property other than the collateral securing the
Indebtedness to be refinanced, or Liens securing
Refinancing Indebtedness with respect to Indebtedness
incurred pursuant to clause (2) of the second
paragraph of SECTION 4.06;
(11) Liens in favor of the Issuer or a Guarantor;
(12) Liens securing Indebtedness of up to $100.0 million
incurred pursuant to clause (1) of SECTION 4.06;
(13) Liens securing Permitted Unrestricted Subsidiary
Indebtedness permitted to be incurred under the
Indenture;
(14) Liens securing Purchase Money Indebtedness permitted
to be incurred under this Indenture; provided,
however, that such Liens apply only to the property
acquired, constructed or improved with the proceeds
of such Purchase Money Indebtedness within 90 days
after the incurrence of such Purchase Money
Indebtedness;
(15) Liens securing Acquired Indebtedness permitted to be
incurred under this Indenture; provided, however,
that the Liens do not extend to assets not subject to
such Lien at the time of acquisition (other than
improvements thereon) and are no more favorable to
the holders of such Liens than those securing such
Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Issuer or a Restricted
Subsidiary;
(16) Liens on assets of a Person existing at the time such
Person is acquired or merged with or into or
consolidated with the Issuer or any such Restricted
Subsidiary (and not created in anticipation or
contemplation thereof);
24
(17) Liens to secure Attributable Indebtedness permitted
to be incurred under this Indenture; provided,
however, that any such Lien shall not extend to or
cover any assets of the Issuer or any Restricted
Subsidiary other than the assets which are the
subject of the Sale and Leaseback Transaction in
which the Attributable Indebtedness is incurred;
(18) attachment or judgment Liens not giving rise to a
Default and which are being contested in good faith
by appropriate proceedings;
(19) easements, rights-of-way, restrictions and other
similar charges or encumbrances not materially
interfering with the ordinary course of business of
the Issuer and its Subsidiaries;
(20) zoning restrictions, licenses, restrictions on the
use of real property or minor irregularities in title
thereto, which do not materially impair the use of
such real property in the ordinary course of business
of the Issuer and its Subsidiaries or the value of
such real property for the purpose of such business;
(21) any option, contract or other agreement to sell an
asset; provided, however, such sale is not otherwise
prohibited under this Indenture; and
(22) Liens, other than those described in (1) through (21)
above, incurred in the ordinary course of business of
the Issuer or any Restricted Subsidiary with respect
to obligations that do not exceed $10.0 million at
any one time outstanding.
"Permitted Unrestricted Subsidiary Debt" means Indebtedness of
an Unrestricted Subsidiary:
(1) as to which neither the Issuer nor any Restricted
Subsidiary (a) provides credit support of any kind
(including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly
or indirectly liable as a guarantor or otherwise, or
(c) constitutes the lender;
(2) no default with respect to which (including any
rights that the holders thereof may have to take
enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time
or both any holder of any other Indebtedness (other
than the Notes) of the Issuer or any Restricted
Subsidiary to declare a default on the other
Indebtedness or cause the payment thereof to be
accelerated or payable before its stated maturity;
and
25
(3) as to which the lenders have been notified in writing
that they will not have any recourse to the Equity
Interests or assets of the Issuer or any Restricted
Subsidiary.
"Person" means any individual, corporation, partnership,
limited liability company, 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.
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"Plan of Liquidation" with respect to any Person, means a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (1) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition of all
or substantially all of the remaining assets of such Person to creditors and
holders of Equity Interests of such Person.
"Preferred Stock" means, with respect to any Person, any and
all preferred or preference stock or other Equity Interests (however designated)
of such Person whether now outstanding or issued after the Issue Date.
"principal" means, with respect to the Notes, the principal
of, and premium, if any, on the Notes.
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes and Other Notes that are Restricted Notes in the
form set forth in Exhibit B.
"Purchase Amount" has the meaning set forth in the definition
of "Offer to Purchase."
"Purchase Date" has the meaning set forth in the definition of
"Offer to Purchase."
"Purchase Money Indebtedness" means Indebtedness, including
Capitalized Lease Obligations, of the Issuer or any Restricted Subsidiary
incurred for the purpose of financing all or any part of the purchase price of
property, plant or equipment used in the business of the Issuer or any
Restricted Subsidiary or the cost of installation, construction or improvement
thereof; provided, however, that (1) the amount of such Indebtedness shall not
exceed such purchase price or cost, (2) such Indebtedness shall not be secured
by any asset other than the specified asset being financed or, in the case of
real property or fixtures, including additions and improvements, the real
property to which
26
such asset is attached and (3) such Indebtedness shall be incurred within 90
days after such acquisition of such asset by the Issuer or such Restricted
Subsidiary or such installation, construction or improvement.
"Purchase Price" has the meaning set forth in the definition
of "Offer to Purchase."
"Qualified Equity Interests" means Equity Interests of the
Issuer other than Disqualified Equity Interests; provided, however, that such
Equity Interests shall not be deemed Qualified Equity Interests to the extent
sold or owed to a Subsidiary of the Issuer or financed, directly or indirectly,
using funds (1) borrowed from the Issuer or any Subsidiary of the Issuer until
and to the extent such borrowing is repaid or (2) contributed, extended,
guaranteed or advanced by the Issuer or any Subsidiary of the Issuer (including,
without limitation, in respect of any employee stock ownership or benefit plan).
"Qualified Equity Offering" means the issuance and sale of
Qualified Equity Interests of the Issuer to Persons other than any Person who is
not, before such issuance and sale, an Affiliate of the Issuer.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"redeem" means to redeem, repurchase, purchase, defease,
retire, discharge or otherwise acquire or retire for value; and "redemption"
shall have a correlative meaning.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"refinance" means to refinance, repay, prepay, replace, renew
or refund.
"Refinanced Indebtedness" has the meaning set forth in the
definition of "Refinancing Indebtedness."
"Refinancing Indebtedness" means Indebtedness of the Issuer or
a Restricted Subsidiary issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used substantially concurrently
to redeem or refinance in whole or in part, or constituting an amendment of, any
Indebtedness of the Issuer or any Restricted Subsidiary (the "Refinanced
Indebtedness") in a principal amount not in excess of the principal amount of
the Refinanced Indebtedness so repaid or amended (plus the amount of any premium
paid and the amount of reasonable expenses incurred by the Issuer or any
Restricted Subsidiary in connection with such repayment or amendment) (or, if
such Refinancing Indebtedness refinances Indebtedness under a revolving credit
facility or other agreement providing a commitment for subsequent
27
borrowings, with a maximum commitment not to exceed the maximum commitment under
such revolving credit facility or other agreement); provided, however, that:
(1) other than with respect to the Convertible Notes, if
the Refinanced Indebtedness was subordinated to or
pari passu with the Notes or the Note Guarantees, as
the case may be, then such Refinancing Indebtedness,
by its terms, is expressly pari passu with (in the
case of Refinanced Indebtedness that was pari passu
with) or subordinate in right of payment to (in the
case of Refinanced Indebtedness that was subordinated
to) the Notes or the Note Guarantees, as the case may
be, at least to the same extent as the Refinanced
Indebtedness;
(2) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Refinanced
Indebtedness being repaid or amended or (b) after the
maturity date of the Notes;
(3) the portion, if any, of the Refinancing Indebtedness
that is scheduled to mature on or before the maturity
date of the Notes has a Weighted Average Life to
Maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of
the Refinanced Indebtedness being repaid that is
scheduled to mature on or before the maturity date of
the Notes; and
(4) the Refinancing Indebtedness is secured only to the
extent, if at all, and by the assets, that the
Refinanced Indebtedness being repaid, extended or
amended is secured.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the Issuer, the Guarantors and the
Initial Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Responsible Officer" when used with respect to the Trustee,
means an officer or assistant officer assigned to the Corporate Trust Office of
the Trustee (or any successor group of the Trustee) with direct responsibility
for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
provided, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
28
"Restricted Payment" means any of the following:
(1) the declaration or payment of any dividend or any
other distribution on Equity Interests of the Issuer
or any Restricted Subsidiary or any payment made to
the direct or indirect holders (in their capacities
as such) of Equity Interests of the Issuer or any
Restricted Subsidiary, including, without limitation,
any payment in connection with any merger or
consolidation involving the Issuer, but excluding (a)
dividends or distributions payable solely in
Qualified Equity Interests and (b) in the case of
Restricted Subsidiaries, dividends or distributions
payable to the Issuer or to a Restricted Subsidiary
and pro rata dividends or distributions payable to
minority stockholders of any Restricted Subsidiary;
(2) the redemption of any Equity Interests of the Issuer
or any Restricted Subsidiary, including, without
limitation, any payment in connection with any merger
or consolidation involving the Issuer, but excluding
any such Equity Interests held by the Issuer or any
Restricted Subsidiary;
(3) any Investment other than a Permitted Investment; or
(4) any redemption before to the scheduled maturity or
before any scheduled repayment of principal or
sinking fund payment, as the case may be, in respect
of Subordinated Indebtedness.
"Restricted Payments Basket" has the meaning given to such
term in clause (3) of the first paragraph of SECTION 4.08.
"Restricted Subsidiary" means any Subsidiary of the Issuer
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's Ratings Services, a division of
the XxXxxx-Xxxx Companies, Inc., and its successors.
"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 of any asset of such Person which has been or is being
sold or transferred by such Person 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 asset.
"SEC" means the U.S. Securities and Exchange Commission.
29
"Secretary's Certificate" means a certificate signed by the
Secretary of the Issuer.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Subordinated Indebtedness" means Indebtedness of the Issuer
or any Guarantor that is subordinated in right of payment to the Notes or the
Note Guarantees, respectively.
"Subsidiary" means, with respect to any Person:
(1) any corporation, limited liability company,
association or other business entity of which more
than 50% of the total voting power of the Equity
Interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the
Board of Directors thereof are at the time owned or
controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person
(or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general
partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination
thereof).
Unless otherwise specified, "Subsidiary" refers to a
Subsidiary of the Issuer.
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Subsidiary" means (1) any Subsidiary that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of the Issuer in accordance with SECTION 4.15 and (2) any
Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct non-callable
obligations of, or obligations guaranteed by, the United States of America for
the payment of which guarantee or obligations the full faith and credit of the
United States is pledged.
30
"Voting Stock" with respect to any Person, means securities of
any class of Equity Interests of such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock or other
relevant Equity Interest has voting power by reason of any contingency) to vote
in the election of members of the Board of Directors of such Person.
"Weighted Average Life to Maturity" when applied to any
Indebtedness at any date, means the number of years obtained by dividing (1) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment by (2) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" means a Restricted
Subsidiary of which 100% of the Equity Interests (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) are owned
directly by the Issuer or through one or more Wholly-Owned Restricted
Subsidiaries.
SECTION 1.02. OTHER DEFINITIONS.
The definitions of the following terms may be found in the
sections indicated as follows:
TERM DEFINED IN SECTION
"Affiliate Transaction"..................................... 4.10
"Agent Members"............................................. 2.16(a)
"Business Day".............................................. 11.07
"Change of Control Date".................................... 4.20
"Change of Control Offer"................................... 4.20
"Change of Control Payment Date"............................ 4.20
"Change of Control Purchase Price".......................... 4.20
"Clearstream"............................................... 2.16(a)
"Covenant Defeasance"....................................... 9.03
"Designation"............................................... 4.15
"Euroclear"................................................. 2.16(a)
"Event of Default".......................................... 6.01
"Excess Proceeds"........................................... 4.09
"Global Notes".............................................. 2.16(a)
"Legal Defeasance".......................................... 9.02
"Legal Holiday"............................................. 11.07
"Net Proceeds Deficiency"................................... 4.09
"Net Proceeds Offer"........................................ 4.09
31
"Note Portion of Excess Proceeds"........................... 4.09
"Offered Price"............................................. 4.09
"Other Notes"............................................... 2.02
"Pari Passu Indebtedness Price"............................. 4.09
"Paying Agent".............................................. 2.04
"Payment Amount"............................................ 4.09
"Redesignation"............................................. 4.15
"Registrar"................................................. 2.04
"Regulation S Global Notes"................................. 2.16(a)
"Regulation S Notes"........................................ 2.02
"Replacement Assets"........................................ 4.09
"Restricted Global Note".................................... 2.16(a)
"Restricted Period"......................................... 2.16(f)
"Rule 144A Notes"........................................... 2.02
"Successor"................................................. 5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor on the indenture securities" means the
Issuer, the Guarantors or any other successor obligor
on the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
32
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the
plural include the singular;
(4) words used herein implying any gender shall apply to
both genders;
(5) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other Subsection;
(6) unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all
accounting determinations hereunder shall be made,
and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP
as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated
financial statements of the Issuer;
(7) "$," "U.S. Dollars" and "United States Dollars" each
refer to United States dollars, or such other money
of the United States that at the time of payment is
legal tender for payment of public and private debts;
and
(8) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount
payable under or with respect to any Note, such
mention shall be deemed to include mention of the
payment of Liquidated Damages to the extent that, in
such context, Liquidated Damages is, was or would be
payable in respect thereof.
ARTICLE II
THE NOTES
SECTION 2.01. AMOUNT OF NOTES.
The Trustee shall authenticate (i) Notes for original issue on
the Issue Date in the aggregate principal amount not to exceed $150,000,000 and
(ii) subject to SECTION 4.06, Additional Notes, upon a written order of the
Issuer in the form of an Officers'
33
Certificate of the Issuer. The Officers' Certificate shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated. The aggregate principal amount of Notes outstanding at any time
is limited as provided in SECTION 2.08 and SECTION 4.06.
Upon receipt of a written order of the Issuer in the form of
an Officers' Certificate, the Trustee shall authenticate Notes in substitution
for Notes originally issued to reflect any name change of the Issuer. Any
Additional Notes shall be part of the same issue as the Notes being issued on
the date hereof and will vote on all matters as one class with the Notes being
issued on the date hereof, including, without limitation, waivers, amendments,
redemptions and Offers to Purchase. For the purposes of this Indenture, except
for SECTION 4.06, references to the Notes include Additional Notes, if any.
Upon receipt of an Issuer Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer or shelf
registration specified in the Registration Rights Agreement or any registration
rights agreement relating to the Additional Notes is effective, the Trustee
shall authenticate an additional series of Notes in an aggregate principal
amount not to exceed the limitations provided in SECTION 2.08 and SECTION 4.06
for issuance in exchange for the Notes tendered for exchange pursuant to such
exchange offer or shelf registration registered under the Securities Act.
Exchange Notes may have such distinctive series designations and such changes in
the form thereof as are specified in the Issuer Request referred to in the
preceding sentence.
SECTION 2.02. FORM AND DATING.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Issuer is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the legend and include the form of assignment set
forth in Exhibit B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("Regulation S Notes") shall bear the legend and include the
form of assignment set forth in Exhibit C, and Notes offered and sold to
Institutional Accredited Investors in transactions exempt from registration
under the Securities Act not made in reliance on Rule 144A or Regulation S
("Other Notes") may be represented by a Restricted Global Note or, if such an
investor may not hold an interest in the Restricted Global Note, a Physical
Note, in each case, bearing the Private Placement Legend. Each Note shall be
dated the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Issuer, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
34
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Issuer by manual
or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee
for cancellation as provided in SECTION 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate the Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer and Affiliates of the Issuer.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Issuer shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York
or in the City of Louisville, Commonwealth of Kentucky) where Notes may be
presented for registration of transfer or for exchange (the "Registrar"), and an
office or agency where Notes may be presented for payment (the "Paying Agent")
and an office or agency where notices and demands to or upon the Issuer, if any,
in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Issuer may
have one or more additional Paying Agents. The term "Paying
35
Agent" includes any additional Paying Agent. Neither the Issuer nor any
Affiliate thereof may act as Paying Agent.
The Issuer shall enter into an appropriate agency agreement,
which shall incorporate the provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuer shall notify the Trustee of the
name and address of any such Agent. If the Issuer fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
SECTION 7.07.
The Issuer initially appoints the Trustee as Registrar, Paying
Agent and Agent for service of notices and demands in connection with the Notes
and this Indenture.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Issuer or any other obligor on the Notes or the Guarantors),
and the Issuer and the Paying Agent shall notify the Trustee of any default by
the Issuer (or any other obligor on the Notes) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Issuer at any time may require the Paying
Agent to pay all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any Event of
Default specified in SECTION 6.01 (1) or (2), upon written request to the Paying
Agent, require such Paying Agent to pay forthwith all money so held by it to the
Trustee and to account for any funds disbursed. Upon making such payment, the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date, and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders and the Issuer shall otherwise comply with TIA
Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
Subject to SECTIONS 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to
36
exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuer shall issue and execute and
the Trustee shall authenticate new Notes (and the Guarantors shall execute the
guarantee thereon) evidencing such transfer or exchange at the Registrar's
request. No service charge shall be made to the Holder for any registration of
transfer or exchange. The Issuer may require from the Holder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to SECTION 2.11, 3.06, 4.09, 4.20 or 8.05 (in
which events the Issuer shall be responsible for the payment of such taxes). The
Registrar shall not be required to exchange or register a transfer of any Note
for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Issuer's compliance with or
have any responsibility with respect to the Issuer's compliance with any Federal
or state securities laws.
SECTION 2.08. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute the guarantee
thereon) if the Holder of such Note furnishes to the Issuer and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Issuer, an indemnity bond shall be posted,
sufficient in the judgment of both to protect the Issuer, the Guarantors, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Issuer may charge such Holder for the Issuer's reasonable
out-of-pocket expenses in replacing
37
such Note and the Trustee may charge the Issuer for the Trustee's expenses
(including, without limitation, attorneys' fees and disbursements) in replacing
such Note. Every replacement Note shall constitute a contractual obligation of
the Issuer.
SECTION 2.09. OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in SECTIONS 9.01
and 9.02, on or after the date on which the conditions set forth in SECTION 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this SECTION 2.09 as not
outstanding. Subject to SECTION 2.10, a Note does not cease to be outstanding
because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to SECTION 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Issuer.
If the Paying Agent holds, in its capacity as such, on any
maturity date, money sufficient to pay all accrued interest and principal with
respect to the Notes payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Issuer or any other Affiliate of
the Issuer shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Issuer, a Guarantor, any other obligor on the Notes or any of
their respective Affiliates.
SECTION 2.11. TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery,
the Issuer may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Issuer
38
considers appropriate for temporary Notes. Without unreasonable delay, the
Issuer shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
SECTION 2.12. CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) destroy cancelled Notes. The
Issuer may not reissue or resell, or issue new Notes to replace, Notes that the
Issuer has redeemed or paid, or that have been delivered to the Trustee for
cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Issuer defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Holders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Issuer shall
fix such special record date and payment date in a manner satisfactory to the
Trustee. At least 10 days before such special record date, the Issuer shall mail
to each Holder a notice that states the special record date, the payment date
and the amount of defaulted interest, and interest payable on defaulted
interest, if any, to be paid. The Issuer may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Notes may be listed and,
upon such notice as may be required by such exchange, if, after written notice
given by the Issuer to the Trustee of the proposed payment pursuant to this
sentence, such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.14. CUSIP NUMBER.
The Issuer in issuing the Notes may use a CUSIP number, and if
so, such CUSIP number shall be included in notices of redemption or exchange as
a convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuer shall promptly
notify the Trustee of any such CUSIP number used by the Issuer in connection
with the issuance of the Notes and of any change in the CUSIP number.
39
SECTION 2.15. DEPOSIT OF MONEYS; METHODS OF RECEIVING PAYMENTS
ON THE NOTES.
Prior to 10:00 A.M., New York City time, on each Interest
Payment Date and maturity date, the Issuer shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or maturity date, as the case may be,
which permits the Trustee to remit payment to the Holders on such Interest
Payment Date or maturity date, as the case may be; provided, however, that if a
Holder has given wire transfer instructions to the Issuer and the Trustee at
least ten Business Days before the applicable payment date, the Issuer will make
all payments on such Holder's Notes in accordance with those instructions.
The principal and interest on Global Notes shall be payable to
the Depository or its nominee, as the case may be, as the sole registered owner
and the sole holder of the Global Notes represented thereby. The principal and
interest on Physical Notes shall be payable at the office or agency of the
Paying Agent and Registrar for the Notes unless the Issuer elects to make
interest payments by check mailed to the Holders at their addresses set forth in
the register of Holders.
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Rule 144A Notes initially shall be represented by one or
more notes in registered, global form without interest coupons (collectively,
the "Restricted Global Note"). Regulation S Notes initially shall be represented
by one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes shall bear legends as set forth in Exhibit D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member (as
defined below) (or, in the case of the Regulation S Global Notes, of The
Euroclear System ("Euroclear") and Clearstream Banking, societe anonyme
("Clearstream")), (ii) be delivered to the Trustee as custodian for such
Depository and (iii) bear legends as set forth in Exhibit B with respect to
Restricted Global Notes and Exhibit C with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as
the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
40
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of SECTION 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the Issuer
that it is unwilling or unable to continue as depository for such Global Note
and the Issuer thereupon fails to appoint a successor depository within 90 days
or (y) has ceased to be a clearing agency registered under the Exchange Act,
(ii) the Issuer, at its option, notifies the Trustee in writing that it elects
to cause the issuance of such Physical Notes or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Notes. In all cases,
Physical Notes delivered in exchange for any Global Note or beneficial interests
therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with
its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuer
shall execute, and the Trustee shall upon receipt of a written order from the
Issuer authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuer shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for its beneficial interest
in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of SECTION
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Issuer
determines otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement of
the offering of the Notes represented by the Regulation S Global Note and the
issue date of such Notes (such period through and including such 40th day, the
"Restricted Period"), a beneficial interest in a Regulation S Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
corresponding Restricted Global Note only upon receipt by the Trustee of a
written certification from the transferor to the effect that such transfer is
being made (i)(a) to a Person whom the transferor reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A or
41
(b) pursuant to another exemption from the registration requirements under the
Securities Act which is accompanied by an Opinion of Counsel regarding the
availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
Clearstream.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS AND
NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after July
9, 2003 or such other date as such Note shall be freely transferable
under Rule 144 as certified in an Officers' Certificate or (y) (1) in
the case of a transfer to an Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto or (2) in the case of a transfer to a Non-U.S. Person
(including a QIB), the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit F hereto;
provided that in the case of any transfer of a Note bearing the Private
Placement Legend for a Note not bearing the Private Placement Legend,
the Registrar has received an Officers' Certificate authorizing such
transfer; and
42
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuer shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration or any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on such Holder's Note stating, or has otherwise advised the Issuer
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on such Holder's Note stating, or has
otherwise advised the Issuer and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Issuer as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement
43
Legend, the Registrar shall deliver only Notes that bear the Private Placement
Legend unless (i) it has received the Officers' Certificate required by
paragraph (a)(i)(y) of this SECTION 2.17, (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received
an Officers' Certificate from the Issuer to such effect
(d) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
SECTION 2.16 or this SECTION 2.17. The Issuer shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE III
REDEMPTION
SECTION 3.01. ELECTION TO REDEEM; NOTICES TO TRUSTEE.
If the Issuer elects to redeem Notes pursuant to paragraph 5
of the Notes, at least 45 days prior to the Redemption Date (unless a shorter
notice shall be agreed to in writing by the Trustee) but not more than 65 days
before the Redemption Date, the Issuer shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in paragraph 5 of
the Notes. Notice given to the Trustee pursuant to this SECTION 3.01 may not be
revoked after the time that notice is given to Holders pursuant to SECTION 3.03.
SECTION 3.02. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
In the event that less than all of the Notes are to be
redeemed pursuant to a redemption made pursuant to paragraph 5 of the Notes,
selection of the Notes for redemption shall be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the
44
Notes are not then listed on a national security exchange, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that no Notes of a principal amount of $1,000 or less shall
be redeemed in part. If a partial redemption is made pursuant to paragraph 5(b)
of the Notes, selection of the Notes or portions thereof for redemption shall be
made by the Trustee only on a pro rata basis or on as nearly a pro rata basis as
is practicable (subject to the procedures of the Depository), unless that method
is otherwise prohibited. The Trustee shall promptly notify the Issuer of the
Notes selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed. The Trustee may select
for redemption portions of the principal of the Notes that have denominations
larger than $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Issuer may
acquire Notes by means other than redemption, whether pursuant to an Issuer
tender offer, open market purchase or otherwise provided such acquisition does
not otherwise violate the other terms of this Indenture.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Issuer shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to SECTION 2.04.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and
accrued interest to be paid;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and
that, after the Redemption Date and upon surrender of
such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the
redemption payment, interest on Notes called for
redemption ceases to accrue on and after the
Redemption Date;
45
(7) the provision of paragraph 5 of the Notes, as the
case may be, pursuant to which the Notes called for
redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are
being redeemed.
At the Issuer's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Issuer's name and at the Issuer's sole expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in SECTION 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date; provided that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date; and provided further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Issuer shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of, including
premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Issuer to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued interest on
Notes called for redemption shall have been made available in accordance with
the preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of and, subject to the first proviso in SECTION
3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any
Note surrendered for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case, at the rate and in the manner provided in the Notes.
46
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for the Holder thereof a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Issuer shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Issuer shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. REPORTS TO HOLDERS.
Whether or not required by the SEC, so long as any Notes are
outstanding, the Issuer shall furnish to the Holders of Notes, within the time
periods specified in the SEC's rules and regulations (including any grace
periods or extensions permitted by the SEC):
(1) all quarterly and annual financial information that
would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Issuer were
required to file these forms, including a
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with
respect to the annual information only, a report on
the annual financial statements by the Issuer's
certified independent accountants; and
(2) all current reports that would be required to be
filed with the SEC on Form 8-K if the Issuer were
required to file these reports.
In addition, whether or not required by the SEC, the Issuer
shall file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept the
filing) and make the information available to securities analysts and
prospective investors upon request. For so long as any Notes remain outstanding,
the Issuer shall furnish to the Holders and to securities analysts and
47
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.03. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Issuer and the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead
(as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
which would prohibit or forgive any of the Issuer and the Guarantors from paying
all or any portion of the principal of, premium, if any, and/or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that they may lawfully do so) each of the Issuer and the
Guarantors hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuer shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Issuer and its Subsidiaries during such fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Issuer and the Guarantors have kept, observed, performed
and fulfilled their obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge, the Issuer and the Guarantors have kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and are not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default shall have occurred, describing all such
Defaults of which he or she may have knowledge and what action they are taking
or propose to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuer and the Guarantors are taking or propose to take with respect
thereto.
(b) The Issuer and the Guarantors shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default, an Officers' Certificate specifying such Default
and what action the Issuer and the Guarantors are taking or propose to take with
respect thereto.
(c) The Issuer's fiscal year currently ends on December 31.
The Issuer will provide written notice to the Trustee of any change in its
fiscal year.
48
SECTION 4.05. TAXES.
The Issuer and the Guarantors shall, and shall cause each of
their Subsidiaries to, pay prior to delinquency all material taxes, assessments,
and governmental levies except as contested in good faith and by appropriate
proceedings.
SECTION 4.06. LIMITATIONS ON ADDITIONAL INDEBTEDNESS.
The Issuer shall not, and the Issuer shall not permit any
Restricted Subsidiary to, directly or indirectly, incur any Indebtedness;
provided, however, that the Issuer or any Guarantor may incur additional
Indebtedness (including Acquired Indebtedness) if no Default shall have occurred
and be continuing at the time of or as a consequence of the incurrence of the
Indebtedness and if, after giving effect thereto, the Consolidated Fixed Charge
Coverage Ratio on the date thereof would be at least:
(i) 2.25 to 1.00, if such date is on or before December
31, 2002 or
(ii) 2.50 to 1.00, if such date is after December 31,
2002,
in each case determined on a pro forma basis as if the incurrence of such
additional Indebtedness and the application of the net proceeds therefrom, had
occurred at the beginning of the Four-Quarter Period used to calculate the
Issuer's Consolidated Fixed Charge Coverage Ratio (the "Coverage Ratio
Exception").
Notwithstanding the above, so long as no Default shall have
occurred and be continuing at the time of or as a consequence of the incurrence
of the following Indebtedness, each of the following shall be permitted (the
"Permitted Indebtedness"):
(1) Indebtedness of the Issuer and any Guarantor under
the Credit Facility in an aggregate amount at any
time outstanding (whether incurred under the Coverage
Ratio Exception or as Permitted Indebtedness) not to
exceed the greater of (x) $80.0 million and (y) the
amount of the Borrowing Base as of the date of such
incurrence (provided that in no case shall the
Indebtedness permitted pursuant to this clause (1)
exceed $100.0 million at any one time outstanding);
(2) the Notes and the Note Guarantees issued on the Issue
Date;
(3) Indebtedness of the Issuer and the Restricted
Subsidiaries to the extent outstanding on the Issue
Date (other than Indebtedness referred to in clauses
(1) and (2) above, and after giving effect to the use
of proceeds of the Notes);
(4) Indebtedness of the Issuer and the Restricted
Subsidiaries under Hedging Obligations; provided,
however, that (a) such Hedging Obligations relate to
payment obligations on Indebtedness
49
otherwise permitted to be incurred by this SECTION
4.06, and (b) the notional principal amount of such
Hedging Obligations at the time incurred does not
exceed the principal amount of the Indebtedness to
which such Hedging Obligations relate;
(5) Indebtedness of the Issuer owed to a Guarantor and
Indebtedness of any Guarantor owed to the Issuer or
any other Guarantor; provided, however, that (a) any
Indebtedness of the Issuer owed to a Guarantor is
unsecured and subordinated, pursuant to a written
agreement, to the Issuer's obligation, under this
Indenture and the Notes and (b) upon any such
Guarantor ceasing to be a Guarantor or such
Indebtedness being owed to any Person other than the
Issuer or a Guarantor, the Issuer or such Guarantor,
as applicable, shall be deemed to have incurred
Indebtedness not permitted by this clause (5);
(6) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Issuer or any
Restricted Subsidiary in the ordinary course of
business, including guarantees or obligations of the
Issuer or any Restricted Subsidiary with respect to
letters of credit supporting such bid, performance or
surety obligations (in each case other than for an
obligation for money borrowed);
(7) Purchase Money Indebtedness incurred by the Issuer or
any Guarantor, in an aggregate amount not to exceed
at any time outstanding $8.0 million;
(8) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or
similar instrument inadvertently (except in the case
of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished
within five Business Days of incurrence;
(9) Indebtedness arising in connection with endorsement
of instruments for deposit in the ordinary course of
business;
(10) Refinancing Indebtedness with respect to Indebtedness
incurred pursuant to the Coverage Ratio Exception or
clauses (2), (3), (7) and (12) in this SECTION 4.06;
(11) Indebtedness of Unrestricted Securities; and
(12) Indebtedness of the Issuer or any Guarantor in an
aggregate amount in addition to items (1) through
(11) above not to exceed $10.0 million at any time
outstanding.
50
For purposes of determining compliance with this SECTION 4.06,
if an item of Indebtedness meets the criteria of more than one of the categories
of Permitted Indebtedness described in clauses (1) through (12) above or is
entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer
shall, in its sole discretion, classify such item of Indebtedness and may divide
and classify such Indebtedness in more than one of the types of Indebtedness
described, except that Indebtedness outstanding under the Credit Facility shall
be deemed to first have been incurred under clause (1) above. In addition, with
respect to any Indebtedness issued at a discount from principal amount, the
amount of such Indebtedness incurred upon issuance will be deemed to be the
accreted value thereof determined in accordance with GAAP.
SECTION 4.07. LIMITATIONS ON LAYERING INDEBTEDNESS.
The Issuer shall not, and shall not permit any Guarantor to,
directly or indirectly, incur any Indebtedness that is or purports to be by its
terms (or by the terms of any agreement governing such Indebtedness)
contractually subordinated to any other Indebtedness of the Issuer or of such
Guarantor, as the case may be, unless such Indebtedness is also by its terms (or
by the terms of any agreement governing such Indebtedness) contractually made
expressly subordinate to the Notes or the Note Guarantee of such Guarantor, to
the same extent and in the same manner as such Indebtedness is contractually
subordinated to such other Indebtedness of the Issuer or such Guarantor, as the
case may be.
SECTION 4.08. LIMITATIONS ON RESTRICTED PAYMENTS.
The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make any Restricted Payment if at the
time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or
shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio
Exception; or
(3) the amount of such Restricted Payment, when added to
the aggregate amount of all other Restricted Payments
made after the Issue Date (other than Restricted
Payments made pursuant to clause (2), (3), (4) or (6)
of the next paragraph), exceeds the sum (the
"Restricted Payments Basket") of (without
duplication):
(a) 50% of Consolidated Net Income for the
period (taken as one accounting period)
commencing on the first day of the first
full fiscal quarter commencing after the
Issue Date to and including the last day of
the fiscal quarter ended immediately before
the date of such calculation for which
51
consolidated financial statements are
available (or, if such Consolidated Net
Income shall be a deficit, minus 100% of
such aggregate deficit), plus
(b) 100% of the aggregate net cash proceeds
received by the Issuer either (x) as
contributions to the common equity of the
Issuer after the Issue Date or (y) from the
issuance and sale of Qualified Equity
Interests after the Issue Date, other than
to the extent any such proceeds are used to
redeem Notes in accordance with Section 5(b)
of the Notes, plus
(c) the aggregate amount by which Indebtedness
(other than Subordinated Indebtedness) of
the Issuer or any Restricted Subsidiary is
reduced on the Issuer's balance sheet upon
the conversion or exchange (other than by a
Subsidiary of the Issuer) after the Issue
Date into Qualified Equity Interests (less
the amount of any cash, or the fair value of
assets, distributed by the Issuer or any
Restricted Subsidiary upon such conversion
or exchange), plus
(d) in the case of the disposition or repayment
of or return on any Investment that was
treated as a Restricted Payment made after
the Issue Date, an amount (to the extent not
included in the computation of Consolidated
Net Income) equal to the lesser of (i) the
return of capital with respect to such
Investment and (ii) the amount of such
Investment that was treated as a Restricted
Payment, in either case, less the cost of
the disposition of such Investment and net
of taxes, plus
(e) upon a Redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the
lesser of (i) the Fair Market Value of the
Issuer's proportionate interest in such
Subsidiary immediately following such
Redesignation, and (ii) the aggregate amount
of the Issuer's Investments in such
Subsidiary to the extent such Investments
reduced the amount available for subsequent
Restricted Payments under this clause (3)
and were not previously repaid or otherwise
reduced.
The foregoing provisions will not prohibit:
(1) the payment by the Issuer or any Restricted
Subsidiary of any dividend within 60 days
after the date of declaration thereof, if on
the date of declaration the payment would
have complied with the provisions of this
Indenture;
52
(2) so long as no Default shall have occurred
and be continuing at the time of or as a
consequence of such redemption, the
redemption of any Equity Interests of the
Issuer or any Restricted Subsidiary in
exchange for, or out of the proceeds of the
substantially concurrent issuance and sale
of, Qualified Equity Interests;
(3) so long as no Default shall have occurred
and be continuing at the time of or as a
consequence of such redemption, the
redemption of Subordinated Indebtedness of
the Issuer or any Guarantor (a) in exchange
for, or out of the proceeds of the
substantially concurrent issuance and sale
of, Qualified Equity Interests or (b) in
exchange for, or out of the proceeds of the
substantially concurrent incurrence of,
Refinancing Indebtedness permitted to be
incurred under SECTION 4.06 and the other
terms of this Indenture;
(4) the redemption of any Disqualified Equity
Interests of any Person in exchange for, or
out of the net proceeds of the substantially
concurrent issuance or sale (other than to a
Subsidiary of the Issuer) of, Disqualified
Equity Interests of such Person; provided,
however, that any Disqualified Equity
Interests so issued have a stated
liquidation, redemption or similar value no
greater than the Disqualified Equity
Interests being redeemed and matures, is
mandatorily redeemable and/or is redeemable
at the sole option of the holder thereof on
a date later than the date of the
Disqualified Equity Interests being
redeemed;
(5) so long as no Default shall have occurred
and be continuing at the time of or as a
consequence of such redemption, the
redemption of Equity Interests of the Issuer
held by officers, directors or employees or
former officers, directors or employees (or
their transferees, estates or beneficiaries
under their estates), upon their death,
disability, retirement, severance or
termination of employment or service;
provided, however, that the aggregate cash
consideration paid for all such redemptions
shall not exceed $2.0 million during any
calendar year;
(6) repurchases of Equity Interests deemed to
occur upon the exercise of stock options if
the Equity Interests represents a portion of
the exercise price thereof;
(7) so long as no Default shall have occurred
and be continuing at the time of or as a
consequence of such redemption or
repurchase, the redemption or repurchase of
the Issuer's Convertible Notes for cash in
an amount less than the principal and
accrued and unpaid interests on such
redeemed or repurchased Convertible Notes;
53
provided, however, that no issuance and sale of Qualified Equity Interests
pursuant to clause (2) or (3) above shall increase the Restricted Payments
Basket, except to the extent the proceeds thereof exceed the amounts used to
effect the transactions described therein.
SECTION 4.09. LIMITATIONS ON ASSET SALES.
The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets included
in such Asset Sale; and
(2) at least 80% of the total consideration received in
such Asset Sale or series of related Asset Sales
consists of cash, Cash Equivalents or Replacement
Assets.
For purposes of clause (2), the following shall be deemed to
be cash:
(a) the amount (without duplication) of any
Indebtedness (other than Subordinated
Indebtedness) of the Issuer or such
Restricted Subsidiary that is expressly
assumed by the transferee in such Asset Sale
and with respect to which the Issuer or such
Restricted Subsidiary, as the case may be,
is unconditionally released by the holder of
such Indebtedness, and
(b) late the amount of any obligations received
from such transferee that are within 30 days
converted by the Issuer or such Restricted
Subsidiary to cash (to the extent of the
cash actually so received).
If at any time any non-cash consideration received by the
Issuer or any Restricted Subsidiary of the Issuer, as the case may be, in
connection with any Asset Sale is repaid or converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any such
non-cash consideration), then the date of such repayment, conversion or
disposition shall be deemed to constitute the date of an Asset Sale hereunder
and the Net Available Proceeds thereof shall be applied in accordance with this
SECTION 4.09.
If the Issuer or any Restricted Subsidiary engages in an Asset
Sale, the Issuer or such Restricted Subsidiary shall, no later than one year
following the consummation thereof, apply all or any of the Net Available
Proceeds therefrom to:
(1) repay any Indebtedness under the Credit Facility and
permanently reduce the commitments thereunder; and/or
54
(2) invest all or any part of the Net Available Proceeds
thereof in the purchase of assets (other than
securities, unless such securities represent Equity
Interests in an entity engaged solely in a Permitted
Business, such entity becomes a Restricted Subsidiary
and the Issuer or a Restricted Subsidiary acquires
voting and management control of such entity) to be
used by the Issuer or any Restricted Subsidiary in a
Permitted Business.
The amount of Net Available Proceeds not applied or invested
as provided in this paragraph will constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds equals or exceeds
$10.0 million, the Issuer shall be required to make an Offer to Purchase from
all Holders and, if applicable, redeem (or make an offer to do so) any Pari
Passu Indebtedness of the Issuer or a Guarantor, the provisions of which require
the Issuer or a Guarantor to redeem such Indebtedness with the proceeds from any
Asset Sales (or offer to do so), in an aggregate principal amount of Notes and
such Pari Passu Indebtedness equal to the amount of such Excess Proceeds as
follows:
(1) the Issuer shall (a) make an Offer to Purchase (a
"Net Proceeds Offer") to all Holders, and (b) redeem
(or make an offer to do so) any such other Pari Passu
Indebtedness, pro rata in proportion to the
respective principal amounts of the Notes and such
other Indebtedness required to be redeemed, the
maximum principal amount of Notes and Pari Passu
Indebtedness that may be redeemed out of the amount
(the "Payment Amount") of such Excess Proceeds;
(2) the offer price for the Notes shall be payable in
cash in an amount equal to 100% of the principal
amount of the Notes tendered pursuant to a Net
Proceeds Offer, plus accrued and unpaid interest
thereon, if any, to the date such Net Proceeds Offer
is consummated (the "Offered Price"), and the
redemption price for such Pari Passu Indebtedness
(the "Pari Passu Indebtedness Price") shall be as set
forth in the related documentation governing such
Indebtedness;
(3) if the aggregate Offered Price of Notes validly
tendered and not withdrawn by Holders thereof exceeds
the pro rata portion of the Payment Amount allocable
to the Notes, Notes to be purchased shall be selected
on a pro rata basis; and
(4) upon completion of such Net Proceeds Offer in
accordance with the foregoing provisions, the amount
of Excess Proceeds with respect to which such Net
Proceeds Offer was made shall be deemed to be zero.
55
To the extent that the sum of the aggregate Offered Price of
Notes tendered pursuant to a Net Proceeds Offer and the aggregate Pari Passu
Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less
than the Payment Amount relating thereto (such shortfall constituting a "Net
Proceeds Deficiency"), the Issuer may use the Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the provisions of
this Indenture.
In the event of the transfer of substantially all (but not
all) of the assets of the Issuer and the Restricted Subsidiaries as an entirety
to a Person in a transaction covered by and effected in accordance with SECTION
5.01 the successor corporation shall be deemed to have sold for cash at Fair
Market Value the assets of the Issuer and the Restricted Subsidiaries not so
transferred for purposes of this SECTION 4.09, and shall comply with the
provisions of this SECTION 4.09 with respect to such deemed sale as if it were
an Asset Sale (with such Fair Market Value being deemed to be Net Available
Proceeds for such purpose).
The Issuer shall comply with applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act and any other
applicable laws and regulations in connection with the purchase of Notes
pursuant to a Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with this SECTION 4.09, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this SECTION 4.09 by virtue of
this compliance.
SECTION 4.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, in one transaction or a series of related
transactions, sell, lease, transfer or otherwise dispose of any of its assets
to, or purchase any assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no
less favorable to the Issuer or the relevant
Restricted Subsidiary than those that may have been
obtained in a comparable transaction at such time on
an arm's-length basis by the Issuer or that
Restricted Subsidiary from a Person that is not an
Affiliate of the Issuer or that Restricted
Subsidiary; and
(2) the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction
involving aggregate value in excess of $1.0
million, an Officers' Certificate certifying
that such Affiliate Transaction complies
with clause (1) above and a Secretary's
Certificate which sets forth and
authenticates a resolution
56
that has been adopted by the Independent
Directors approving such Affiliate
Transaction; and
(b) with respect to any Affiliate Transaction
involving aggregate value of $5.0 million or
more, the certificates described in the
preceding clause (a) and (x) a written
opinion as to the fairness of such Affiliate
Transaction to the Issuer or such Restricted
Subsidiary from a financial point of view or
(y) a written appraisal supporting the value
of such Affiliate Transaction, in either
case, issued by an Independent Financial
Advisor.
The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (a) the
Issuer and one or more Restricted Subsidiaries or (b)
Restricted Subsidiaries; provided, however, in each
case, that no Affiliate of the Issuer (other than
another Restricted Subsidiary) owns Equity Interests
of any such Restricted Subsidiary;
(2) reasonable director, officer, employee and consultant
compensation (including bonuses) and other benefits
(including retirement, health, stock and other
benefit plans) and indemnification arrangements;
(3) loans and advances permitted by clause (3) of the
definition of "Permitted Investments";
(4) any agreement as in effect as of the Issue Date or
any extension, amendment or modification thereto (so
long as any such extension, amendment or modification
satisfies the requirements set forth in clause (1) of
the first paragraph of this SECTION 4.10) or any
transaction contemplated thereby;
(5) Restricted Payments of the type described in clause
(1), (2) or (4) of the definition of "Restricted
Payment" and which are made in accordance with
SECTION 4.08.
SECTION 4.11. LIMITATIONS ON LIENS.
The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or permit or suffer
to exist any Lien of any nature whatsoever (other than Permitted Liens) against
any assets of the Issuer or any Restricted Subsidiary (including Equity
Interests of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any proceeds therefrom, or assign or
57
otherwise convey any right to receive income or profits therefrom, which Lien
secures Indebtedness or trade payables, unless contemporaneously therewith:
(1) in the case of any Lien securing an obligation that
ranks pari passu with the Notes or a Note Guarantee,
effective provision is made to secure the Notes or
such Note Guarantee, as the case may be, at least
equally and ratably with or prior to such obligation
with a Lien on the same collateral; and
(2) in the case of any Lien securing an obligation that
is subordinated in right of payment to the Notes or a
Note Guarantee, effective provision is made to secure
the Notes or such Note Guarantee, as the case may be,
with a Lien on the same collateral that is prior to
the Lien securing such subordinated obligation, in
each case, for so long as such obligation is secured
by such Lien.
SECTION 4.12. CONDUCT OF BUSINESS.
The Issuer will not, and will not permit any Restricted
Subsidiary to, engage in any business other than the Permitted Business.
SECTION 4.13. ADDITIONAL NOTE GUARANTEES.
If, after the Issue Date, (a) the Issuer or any Restricted
Subsidiary shall acquire or create another Subsidiary (other than a Subsidiary
that has been Designated an Unrestricted Subsidiary) or (b) any Unrestricted
Subsidiary is Redesignated a Restricted Subsidiary, then, in each such case, the
Issuer shall cause such Restricted Subsidiary to:
(1) execute and deliver to the Trustee (a) a supplemental
indenture in form and substance satisfactory to the
Trustee pursuant to which such Restricted Subsidiary
shall unconditionally guarantee all of the Issuer's
obligations under the Notes and this Indenture and
(b) a notation of guarantee in respect of its Note
Guarantee; and
(2) deliver to the Trustee one or more Opinions of
Counsel that such supplemental indenture (a) has been
duly authorized, executed and delivered by such
Restricted Subsidiary and (b) constitutes a valid and
legally binding obligation of such Restricted
Subsidiary in accordance with its terms.
The obligations of each Guarantor under its Note Guarantee
will be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor (including, without
limitation, any guarantees under the Credit Facility permitted under SECTION
4.06) and after giving effect to any collections from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Note Guarantee or pursuant to its
58
contribution obligations under the Indenture, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment for distribution under its Note Guarantee is entitled to a contribution
from each other Guarantor in a pro rata amount based on Adjusted Net Assets of
each Guarantor.
In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the Capital Stock of any Guarantor then held by
the Issuer and the Restricted Subsidiaries, then that Guarantor will be released
and relieved of any obligations under its Note Guarantee; provided that the Net
Available Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, to the extent required
thereby. Any Guarantor that is Designated as an Unrestricted Subsidiary or that
otherwise ceases to be a Guarantor, in each case in accordance with the
provisions of the Indenture, will be released from its Note Guarantee upon
effectiveness of such Designation or when it first ceases to be a Restricted
Subsidiary, as the case may be.
SECTION 4.14. LIMITATIONS ON DIVIDEND AND OTHER RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or
in respect of its Equity Interests;
(2) make loans or advances or pay any Indebtedness or
other obligation owed to the Issuer or any other
Restricted Subsidiary; or
(3) transfer any of its assets to the Issuer or any other
Restricted Subsidiary; except for:
(a) encumbrances or restrictions existing under
or by reason of applicable law;
(b) encumbrances or restrictions existing under
this Indenture, the Notes and the Note
Guarantees;
(c) non-assignment provisions of any contract or
any lease entered into in the ordinary
course of business;
59
(d) encumbrances or restrictions existing under
agreements existing on the date hereof
(including, without limitation, the Credit
Facility) as in effect on the date hereof;
(e) restrictions on the transfer of assets
subject to any Lien permitted under this
Indenture imposed by the holder of such
Lien;
(f) restrictions on the transfer of assets
imposed under any agreement to sell such
assets permitted under this Indenture to any
Person pending the closing of such sale;
(g) any instrument governing Acquired
Indebtedness, which encumbrance or
restriction is not applicable to any Person,
or the assets of any Person, other than the
Person or the assets so acquired;
(h) encumbrances or restrictions arising in
connection with Refinancing Indebtedness;
provided, however, that any such
encumbrances and restrictions are not
materially more restrictive with respect to
any Restricted Subsidiary than those in
effect on the Issue Date with respect to
that Restricted Subsidiary pursuant to the
agreements creating or evidencing the
Indebtedness being refinanced;
(i) customary provisions in leases, partnership
agreements, limited liability company
organizational governance documents, joint
venture agreements and other similar
agreements entered into in the ordinary
course of business that restrict the
transfer of leasehold interests or ownership
interests in such partnership, limited
liability company, joint venture or similar
Person;
(j) Purchase Money Indebtedness incurred in
compliance with SECTION 4.06 that impose
restrictions of the nature described in
clause (3) above on the assets acquired; and
(k) any encumbrances or restrictions imposed by
any amendments or refinancings of the
contracts, instruments or obligations
referred to in clauses (a) through (j)
above; provided, however, that such
amendments or refinancings are, in the good
faith judgment of the Issuer's Board of
Directors, no more materially restrictive
with respect to such encumbrances and
restrictions than those before such
amendment or refinancing.
60
SECTION 4.15. LIMITATIONS ON DESIGNATION OF UNRESTRICTED
SUBSIDIARIES.
The Issuer may designate any Subsidiary of the Issuer as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(1) no Default shall have occurred and be continuing at
the time of or after giving effect to such
Designation; and
(2) the Issuer would be permitted to make, at the time of
such Designation, (a) a Permitted Investment or (b)
an Investment pursuant to the first paragraph of
SECTION 4.08, in either case, in an amount (the
"Designation Amount") equal to the Fair Market Value
of the Issuer's proportionate interest in such
Subsidiary on such date.
No Subsidiary shall be Designated as an "Unrestricted
Subsidiary" unless such Subsidiary:
(1) has no Indebtedness other than Permitted Unrestricted
Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement
or understanding with the Issuer or any Restricted
Subsidiary unless the terms of the agreement,
contract, arrangement or understanding are no less
favorable to the Issuer or the Restricted Subsidiary
than those that might be obtained at the time from
Persons who are not Affiliates of the Issuer or such
Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer
nor any Restricted Subsidiary has any direct or
indirect obligation (a) to subscribe for additional
Equity Interests or (b) to maintain or preserve the
Person's financial condition or to cause the Person
to achieve any specified levels of operating results;
and
(4) has not guaranteed or otherwise directly or
indirectly provided credit support for any
Indebtedness of the Issuer or any Restricted
Subsidiary, except for any guarantee given solely to
support the pledge by the Issuer or any Restricted
Subsidiary of the Equity Interests of such
Unrestricted Subsidiary, which guarantee is not
recourse to the Issuer or any Restricted Subsidiary,
and except to the extent the amount thereof
constitutes a Restricted Payment permitted pursuant
to SECTION 4.08.
No holder of any Indebtedness of any Unrestricted Subsidiary
shall have a right to declare a default on such Indebtedness or cause the
payment thereof to be
61
accelerated or payable before its stated maturity as a result of a default on
any Indebtedness of the Issuer or any Restricted Subsidiary, except to the
extent such Indebtedness is a guarantee by such Unrestricted Subsidiary of
Indebtedness of the Issuer or any Restricted Subsidiary. If, at any time, any
Unrestricted Subsidiary fails to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture, and any Indebtedness of the
Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary as of the date and, if the Indebtedness is
not permitted to be incurred under SECTION 4.06 or the Lien is not permitted
under SECTION 4.11, the Issuer shall be in default of the applicable covenant.
The Issuer may redesignate an Unrestricted Subsidiary as a
Restricted Subsidiary (a "Redesignation") only if:
(1) no Default shall have occurred and be continuing at
the time of and after giving effect to such
Redesignation; and
(2) all Liens, Indebtedness and Investments of such
Unrestricted Subsidiary outstanding immediately
following such Redesignation would, if incurred or
made at such time, have been permitted to be incurred
or made for all purposes of this Indenture.
All Designations and Redesignations must be evidenced by
resolutions of the Board of Directors of the Issuer, delivered to the Trustee
certifying compliance with the foregoing provisions.
SECTION 4.16. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into any Sale and Leaseback
Transaction; provided, however, that the Issuer or any Restricted Subsidiary may
enter into a Sale and Leaseback Transaction if:
(1) the Issuer or such Restricted Subsidiary could have
(a) incurred the Indebtedness attributable to such
Sale and Leaseback Transaction pursuant to SECTION
4.06 and (b) incurred a Lien to secure such
Indebtedness pursuant to SECTION 4.11;
(2) the gross cash proceeds of such Sale and Leaseback
Transaction are at least equal to the Fair Market
Value of the asset that is the subject of such Sale
and Leaseback Transaction; and
(3) the transfer of assets in such Sale and Leaseback
Transaction is permitted by, and the Issuer or the
applicable Restricted Subsidiary applies the proceeds
of such transaction in accordance with, SECTION 4.09.
62
SECTION 4.17. MAINTENANCE OF PROPERTIES; INSURANCE; COMPLIANCE
WITH LAW.
(a) The Issuer shall, and shall cause each of its Restricted
Subsidiaries to, at all times cause all properties used or useful in the conduct
of their business to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, necessary betterments and necessary improvements thereto.
(b) The Issuer shall maintain, and shall cause to be
maintained for each of its Restricted Subsidiaries, insurance covering such
risks as are usually and customarily insured against by corporations similarly
situated, in such amounts as shall be customary for corporations similarly
situated and with such deductibles and by such methods as shall be customary and
reasonably consistent with past practice.
(c) The Issuer shall, and shall cause each of its Subsidiaries
to, comply with all statutes, laws, ordinances or government rules and
regulations to which they are subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
financial condition of the Issuer and their Subsidiaries taken as a whole.
SECTION 4.18. PAYMENTS FOR CONSENT.
The Issuer shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all Holders which so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
SECTION 4.19. LEGAL EXISTENCE.
Subject to Article Five, the Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
legal existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries if the
Board of Directors of the Issuer shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
63
SECTION 4.20. CHANGE OF CONTROL OFFER.
Upon the occurrence of a Change of Control, the Issuer shall
be obligated to make an Offer to Purchase (the "Change of Control Offer"), and
shall purchase, on a Business Day (the "Change of Control Payment Date") not
more than 60 nor less than 30 days following the occurrence of the Change of
Control, all of the then outstanding Notes at a purchase price (the "Change of
Control Purchase Price") equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the Change of Control Payment
Date. The Change of Control Offer shall remain open for at least 20 Business
Days and until the close of business on the Business Day prior to the Change of
Control Payment Date.
Within 30 days following the date upon which a Change of
Control occurs (the "Change of Control Date"), the Issuer shall send, by first
class mail, a notice to each Holder, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. The notice to the Holders
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer.
Any amounts remaining after the purchase of Notes pursuant to
a Change of Control Offer shall be returned by the Trustee to the Issuer.
The Issuer's obligation to make a Change of Control Offer will
be satisfied if a third party makes the Change of Control Offer in the manner
and at the times and otherwise in compliance with the requirements applicable to
a Change of Control Offer made by the Issuer and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer.
The Issuer shall comply with applicable tender rules,
including the requirements of Rule 14e-1 under the Exchange Act and any other
applicable laws and regulations in connection with the purchase of Notes
pursuant to a Change of Control Offer. To the extent the provisions of any
securities laws or regulations conflict with the provisions under this SECTION
4.20, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
SECTION 4.20 by virtue thereof.
SECTION 4.21. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
To the extent applicable with respect to the Notes, the Issuer
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on the Notes as of the end of such year and
(ii) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
64
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS, ETC.
The Issuer shall not, directly or indirectly, in a single
transaction or a series of related transactions, (a) consolidate or merge with
or into (other than a merger that satisfies the requirements of clause (1) below
with a Wholly-Owned Restricted Subsidiary solely for the purpose of changing the
Issuer's jurisdiction of incorporation to another State of the United States),
or sell, lease, transfer, convey or otherwise dispose of or assign all or
substantially all of the assets of the Issuer or the Issuer and the Restricted
Subsidiaries (taken as a whole) or (b) adopt a Plan of Liquidation unless, in
either case:
(1) either:
(a) the Issuer will be the surviving or continuing
Person; or
(b) the Person formed by or surviving such consolidation
or merger or to which such sale, lease, conveyance or
other disposition shall be made (or, in the case of a
Plan of Liquidation, any Person to which assets are
transferred) (collectively, the "Successor") is a
corporation organized and existing under the laws of
any State of the United States of America or the
District of Columbia, and the Successor expressly
assumes, by supplemental indenture in form and
substance satisfactory to the Trustee, all of the
obligations of the Issuer under the Notes, this
Indenture and the Registration Rights Agreement;
(2) immediately before and immediately after and giving effect to
such transaction and the assumption of the obligations set
forth in clause (1)(b) above and the incurrence of any
Indebtedness to be incurred in connection therewith, no
Default shall have occurred and be continuing; and
(3) immediately after and giving effect to such transaction and
the assumption of the obligations set forth in clause (1) (b)
above and the incurrence of any Indebtedness to be incurred in
connection therewith, and the use of any net proceeds
therefrom on a pro forma basis, (a) the Consolidated Net Worth
of the Issuer or the Successor, as the case may be, would be
at least equal to the Consolidated Net Worth of the Issuer
immediately before such transaction and (b) the Issuer or the
Successor, as the case may be, could incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception.
65
For purposes of this SECTION 5.01, any Indebtedness of the
Successor which was not Indebtedness of the Issuer immediately before the
transaction shall be deemed to have been incurred in connection with such
transaction.
Except as provided under SECTION 10.04, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor,
unless:
(1) either:
(a) such Guarantor, another Guarantor or the Issuer will
be the surviving or continuing Person; or
(b) the Person formed by or surviving any such
consolidation or merger assumes, by supplemental
indenture in form and substance satisfactory to the
Trustee, all of the obligations of such Guarantor
under the Note Guarantee of such Guarantor, this
Indenture and the Registration Rights Agreement; and
(2) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the assets of one or more
Restricted Subsidiaries, the Equity Interests of which constitute all or
substantially all of the assets of the Issuer, will be deemed to be the transfer
of all or substantially all of the assets of the Issuer.
Upon any consolidation, combination or merger of the Issuer or
a Guarantor, or any transfer of all or substantially all of the assets of the
Issuer in accordance with the foregoing, in which the Issuer or such Guarantor
is not the continuing obligor under the Notes or its Note Guarantee, the
surviving entity formed by such consolidation or into which the Issuer or such
Guarantor is merged or to which the conveyance, lease or transfer is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer or such Guarantor under this Indenture, the Notes and the Note
Guarantees with the same effect as if such surviving entity had been named
therein as the Issuer or such Guarantor and, except in the case of a conveyance,
transfer or lease, the Issuer or such Guarantor, as the case may be, will be
released from the obligation to pay the principal of and interest on the Notes
or in respect of its Note Guarantee, as the case may be, and all of the Issuer's
or such Guarantor's other obligations and covenants under the Notes, this
Indenture and its Note Guarantee, if applicable.
Notwithstanding the foregoing, any Restricted Subsidiary may
merge into the Issuer or a Guarantor.
66
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Issuer or any Restricted Subsidiary in
accordance with SECTION 5.01, the successor corporation formed by such
consolidation or into which the Issuer is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer or such Restricted Subsidiary under this Indenture with the
same effect as if such successor corporation had been named as the Issuer or
such Restricted Subsidiary herein, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following is an "Event of Default":
(1) failure by the Issuer to pay interest on any of the
Notes when it becomes due and payable and the
continuance of any such failure for 30 days;
(2) failure by the Issuer to pay the principal on any of
the Notes when it becomes due and payable, whether at
stated maturity, upon redemption, upon purchase, upon
acceleration or otherwise;
(3) failure by the Issuer to comply with SECTION 5.01,
SECTION 4.09 or in respect of its obligations to make
a Change of Control Offer pursuant to SECTION 4.20;
(4) failure by the Issuer to comply with any other
agreement or covenant in this Indenture and
continuance of this failure for 30 days after notice
of the failure has been given to the Issuer by the
Trustee or by the Holders of at least 25% of the
aggregate principal amount of the Notes then
outstanding;
(5) default under any mortgage, indenture or other
instrument or agreement under which there may be
issued or by which there may be secured or evidenced
Indebtedness of the Issuer or any Restricted
Subsidiary, whether such Indebtedness now exists or
is incurred after the Issue Date, which default:
(a) is caused by a failure to pay when due
principal on such Indebtedness within the
applicable express grace period,
67
(b) results in the acceleration of such Indebtedness
before its express final maturity or
(c) results in the commencement of judicial proceedings
to foreclose upon, or to exercise remedies under
applicable law or applicable security documents to
take ownership of, the assets securing such
Indebtedness, and
in each case, the principal amount of such Indebtedness, together with any other
Indebtedness with respect to which an event described in clause (a), (b) or (c)
has occurred and is continuing, aggregates $15.0 million or more;
(6) one or more judgments or orders that exceed $15.0 million in
the aggregate (net of amounts covered by insurance or bonded)
for the payment of money have been entered by a court or
courts of competent jurisdiction against the Issuer or any
Restricted Subsidiary and such judgment or judgments have not
been satisfied, stayed, annulled or rescinded within 60 days
of being entered;
(7) the Issuer or any Restricted Subsidiary 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 assets, or
(d) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Issuer or any Restricted
Subsidiary as debtor in an involuntary case,
(b) appoints a Custodian of the Issuer or any Restricted
Subsidiary or a Custodian for all or substantially
all of the assets of the Issuer or any Restricted
Subsidiary, or
(c) orders the liquidation of the Issuer or any
Restricted Subsidiary, and the order or decree
remains unstayed and in effect for 60 days; or
68
(9) any Note Guarantee ceases to be in full force and
effect (other than in accordance with the terms of
such Note Guarantee and this Indenture) or is
declared null and void and unenforceable or found to
be invalid or any Guarantor denies its liability
under its Note Guarantee (other than by reason of
release of a Guarantor from its Note Guarantee in
accordance with the terms of this Indenture and the
Note Guarantee).
Subject to SECTIONS 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Liquidated Damages unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Issuer or any other Person.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clause (7) or (8) of SECTION 6.01 with respect to the Issuer),
shall have occurred and be continuing, the Trustee, by written notice to the
Issuer, or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding by written notice to the Issuer and the Trustee, may
declare all amounts owing under the Notes to be due and payable immediately.
Upon such declaration of acceleration, the aggregate principal of and accrued
and unpaid interest on the outstanding Notes shall immediately become due and
payable; provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of such outstanding Notes may rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal and interest, have been cured or waived as provided in this Indenture.
If an Event of Default specified in clause (7) or (8) of SECTION 6.01 with
respect to the Issuer occurs, all outstanding Notes shall become due and payable
without any further action or notice.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. 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. No remedy is
exclusive of any other remedy. All available remedies
69
are cumulative. Any costs associated with actions taken by the Trustee under
this SECTION 6.03 shall be reimbursed to the Trustee by the Issuer.
SECTION 6.04. WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Subject to SECTIONS 6.02, 6.08 and 8.02, the Holders of a
majority in aggregate principal amount of the notes then outstanding have the
right to waive any existing Default or compliance with any provision of this
Indenture or the Notes. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another Holder
not taking part in such direction, and the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. LIMITATION ON SUITS.
No Holder will have any right to institute any proceeding with
respect to this Indenture or for any remedy thereunder, unless the Trustee:
(1) has failed to act for a period of 60 days after
receiving written notice of a continuing Event of
Default by such Holder and a request to act by
Holders of at least 25% in aggregate principal amount
of Notes outstanding;
(2) has been offered indemnity satisfactory to it in its
reasonable judgment; and
(3) has not received from the Holders of a majority in
aggregate principal amount of the outstanding Notes a
direction inconsistent with such request.
However, such limitations do not apply to a suit instituted by
a Holder of any Note for enforcement of payment of the principal of or interest
on such Note on or
70
after the due date therefor (after giving effect to the grace period specified
in clause (1) of SECTION 6.01).
SECTION 6.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Issuer will have any liability for any obligations of the Issuer under the
Notes or this Indenture or of any Guarantor under its Note Guarantee 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 Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guarantees.
SECTION 6.08. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note on or after the respective due dates expressed in
the Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.
SECTION 6.09. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or
interest specified in SECTION 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer or any Guarantor (or any other obligor on the Notes) for the
whole amount of unpaid principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate set forth in the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.10. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under SECTION 7.07) and the Holders allowed in any
judicial proceedings relative to the Issuer or any Guarantor (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is
71
hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under SECTION 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceedings.
SECTION 6.11. PRIORITIES.
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under SECTION 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
THIRD: to the Issuer or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this SECTION 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This SECTION 6.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to SECTION 6.08 or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
SECTION 6.13. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the
72
Issuer, the Guarantors, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the same circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform on their face to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this SECTION 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to the terms hereof.
73
(4) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights, powers or duties if
it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (e) of this SECTION 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it in its sole
discretion against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to SECTION 7.01:
(1) The Trustee may rely on any document reasonably
believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of
Counsel, or both, which shall conform to the
provisions of SECTION 11.05. The Trustee shall be
protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on
such certificate or opinion.
(3) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or
negligence of any agent appointed by it with due
care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
reasonably believes to be authorized or within its
rights or powers; provided that the Trustee's conduct
does not constitute gross negligence or willful
misconduct.
(5) The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel
as to matters of law shall be full and complete
authorization and protection from liability in
respect
74
of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Issuer or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to SECTIONS 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes or
any Guarantee, it shall not be accountable for the Issuer's or any Guarantor's
use of the proceeds from the sale of Notes or any money paid to the Issuer or
any Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
The Trustee shall, within 30 days after the occurrence of any
Default with respect to the Notes, give the Holders notice of all uncured
Defaults thereunder known to it; provided, however, that, except in the case of
an Event of Default in payment with respect to the Notes or a Default in
complying with SECTION 5.01, the Trustee shall be protected in withholding such
notice if and so long as a committee of its Responsible Officers in good faith
determines that the withholding of such notice is in the interest of the
Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after May 15
of any year, commencing May 15, 2002 the Trustee shall mail to each Holder a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c) and TIA Section
313(d).
Reports pursuant to this SECTION 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses
of such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two
years preceding such transmission, filed their names
and addresses with the Trustee for that purpose.
75
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange on which the Notes are
listed. The Issuer shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuer and the Guarantors shall pay to the Trustee and
Agents from time to time reasonable compensation for its services hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Issuer and the
Guarantors shall reimburse the Trustee and Agents upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Issuer and the Guarantors shall indemnify each of the
Trustee and any predecessor Trustee for, and hold each of them harmless against,
any and all loss, damage, claim, liability or expense, including, without
limitation, taxes (other than taxes based on the income of the Trustee or such
Agent) and reasonable attorneys' fees and expenses incurred by each of them in
connection with the acceptance or performance of its duties under this Indenture
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder (including, without limitation, settlement costs).
The Trustee or Agent shall notify the Issuer and the Guarantors in writing
promptly of any claim asserted against the Trustee or Agent for which it may
seek indemnity. However, the failure by the Trustee or Agent to so notify the
Issuer and the Guarantors shall not relieve the Issuer and Guarantors of their
obligations hereunder except to the extent the Issuer and the Guarantors are
prejudiced thereby.
Notwithstanding the foregoing, the Issuer and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Issuer and the Guarantors in this SECTION
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes. The obligations of the Issuer
and the Guarantors under this SECTION 7.07 to compensate and indemnify the
Trustee, Agents and each predecessor Trustee and to pay or reimburse the
Trustee, Agents and each predecessor Trustee for expenses, disbursements and
advances shall be joint and several liabilities of the Issuer and each of the
Guarantors and shall survive the resignation or removal of the Trustee and the
satisfaction, discharge or other termination of this Indenture, including any
termination or rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in SECTION 6.01 (7) or (8) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
76
For purposes of this SECTION 7.07, the term "Trustee" shall
include any trustee appointed pursuant to this Article Seven.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Issuer and the
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Issuer and the removed
Trustee in writing and may appoint a successor Trustee with the Issuer's written
consent, which consent shall not be unreasonably withheld. The Issuer may remove
the Trustee at its election if:
(1) the Trustee fails to comply with SECTION 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting. If
the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the
Issuer 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
Issuer or the Holders of a majority in principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with SECTION 7.10, 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 Issuer. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under SECTION
7.07, transfer all property held by it as Trustee to the successor Trustee, 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. A successor Trustee shall mail notice of its succession to
each Holder.
Notwithstanding replacement of the Trustee pursuant to this
SECTION 7.08, the Issuer obligations under SECTION 7.07 shall continue for the
benefit of the retiring Trustee.
77
SECTION 7.09. SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
entity, subject to SECTION 7.10, the successor entity without any further act
shall be the successor Trustee; provided such entity shall be otherwise
qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100,000,000 as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
ISSUER.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 7.12. PAYING AGENTS.
The Issuer shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this SECTION
7.12:
(A) that it will hold all sums held by it as agent
for the payment of principal of, or premium, if any, or
interest on, the Notes (whether such sums have been paid to it
by the Issuer or by any obligor on the Notes) in trust for the
benefit of Holders or the Trustee;
(B) that it will at any time during the continuance
of any Event of Default, upon written request from the
Trustee, deliver to the Trustee all sums so held in trust by
it together with a full accounting thereof; and
(C) that it will give the Trustee written notice
within three (3) Business Days of any failure of the Issuer
(or by any obligor on the Notes) in the payment of any
installment of the principal of, premium, if any, or interest
on, the Notes when the same shall be due and payable.
78
ARTICLE VIII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. WITHOUT CONSENT OF HOLDERS.
The Issuer and the Trustee may amend, waive or supplement this
Indenture, the Note Guarantees or the Notes without consent of any Holder:
(1) to provide for the assumption of the Issuer's
obligations to the Holders pursuant to SECTION 5.01;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to cure any ambiguity, defect or inconsistency;
(4) to release any Guarantor from any of its obligations
under its Note Guarantee or this Indenture (to the
extent permitted by this Indenture);
(5) to maintain the qualification of this Indenture under
the TIA; or
(6) to make any other change that does not materially
adversely affect the rights of any Holder hereunder.
The Trustee is hereby authorized to join with the Issuer and
the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
SECTION 8.02. WITH CONSENT OF HOLDERS.
This Indenture or the Notes may be amended with the consent
(which may include consents obtained in connection with a tender offer or
exchange offer for Notes) of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and any existing Default under,
or compliance with any provision of, this Indenture may be waived (other than
any continuing Default in the payment of the principal or interest on the Notes)
with the consent (which may include consents obtained in connection with a
tender offer or exchange offer for Notes) of the Holders of a majority in
aggregate principal amount of the Notes then outstanding; provided that:
(a) no such amendment may, without the consent of the Holders
of two-thirds in aggregate principal amount of Notes then outstanding,
79
amend the obligation of the Issuer under SECTION 4.20 or the related definitions
that could adversely affect the rights of any Holder; and
(b) without the consent of each Holder affected, the Issuer
and the Trustee may not:
(1) change the maturity of any Note;
(2) reduce the amount, extend the due date or otherwise affect
the terms of any scheduled payment of interest on or principal of the
Notes;
(3) reduce any premium payable upon optional redemption of the
Notes, change the date on which any Notes are subject to redemption or
otherwise alter the provisions with respect to the redemption of the
Notes;
(4) make any Note payable in money or currency other than that
stated in the Notes;
(5) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer with respect to a Change of Control that has occurred or make and
consummate a Net Proceeds Offer with respect to any Asset Sale that has
been consummated or modify any of the provisions or definitions with
respect thereto;
(6) modify or change any provision of this Indenture or the
related definitions in a manner that adversely affects the Holders;
(7) reduce the amount of Notes whose Holders must consent to
an amendment or waiver to this Indenture or the Notes;
(8) impair the rights of Holders to receive payments of
principal of or interest on the Notes;
(9) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except as permitted by this
Indenture; or
(10) make any change in this SECTION 8.02.
After an amendment, supplement or waiver under this SECTION
8.02 becomes effective, the Issuer shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of
80
the Holders as aforesaid and upon receipt by the Trustee of the documents
described in SECTION 8.06, the Trustee shall join with the Issuer and the
Guarantors in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may, 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,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
written notice of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Holder, unless it makes a change described in any
of clauses (1) through (9) of SECTION 8.02. In that case the amendment,
supplement, waiver or other action shall bind each Holder of a Note who has
consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note.
81
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Issuer) shall request the Holder of the Note (in accordance with the specific
written direction of the Issuer) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
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, supplement or waiver the Trustee shall be
entitled to receive and, subject to SECTION 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by SECTION 11.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Issuer and Guarantors, enforceable
against the Issuer and Guarantors in accordance with its terms (subject to
customary exceptions).
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. DISCHARGE OF INDENTURE.
The Issuer may terminate its obligations and the obligations
of the Guarantors under the Notes, the Guarantees and this Indenture, except the
obligations referred to in the last paragraph of this SECTION 9.01, if
(1) all the Notes that have been authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from this trust) have been delivered to the
Trustee for cancellation, or
(2) (a) all Notes not delivered to the Trustee for
cancellation otherwise have become due and payable or have been called
for redemption pursuant to paragraph 5 of the Notes, and the Issuer has
irrevocably deposited or caused to be deposited with the Trustee trust
funds in trust in an amount of money sufficient to pay and discharge
the entire Indebtedness
82
(including all principal and accrued interest) on the Notes not
theretofore delivered to the Trustee for cancellation,
(b) the Issuer has paid all sums payable by it under this
Indenture,
(c) the Issuer has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the
payment of the Notes at maturity or on the date of
redemption, as the case may be, and
(d) the Trustee, for the benefit of the Holders, has a
valid, perfected, exclusive security interest in this
trust.
In addition, the Issuer must deliver an Officers' Certificate
and an Opinion of Counsel (as to legal matters) stating that all conditions
precedent to satisfaction and discharge have been complied with.
After such delivery, the Trustee shall acknowledge in writing
the discharge of the Issuer's and the Guarantors' obligations under the Notes,
the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer in SECTIONS 7.07, 9.05 and 9.06 shall
survive.
SECTION 9.02. LEGAL DEFEASANCE.
The Issuer may at its option, by Board Resolution of the Board
of Directors of the Issuer, be discharged from its obligations with respect to
the Notes and the Guarantors discharged from their obligations under the
Guarantees on the date the conditions set forth in SECTION 9.04 are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Issuer, shall, subject to
SECTION 9.06, execute instruments in form and substance reasonably satisfactory
to the Trustee and Issuer acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of outstanding Notes to receive solely from the trust funds
described in SECTION 9.04 and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (B) the Issuer's obligations with respect to such Notes
under SECTIONS 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.11 and 4.19, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to SECTION
7.07) and the Issuer's obligation in connection therewith and (D) this Article
Nine. Subject to compliance with
83
this Article Nine, the Issuer may exercise its option under this SECTION 9.02
with respect to the Notes notwithstanding the prior exercise of its option under
SECTION 9.03 with respect to the Notes.
SECTION 9.03. COVENANT DEFEASANCE.
At the option of the Issuer, pursuant to a Board Resolution of
the Board of Directors of the Issuer, (x) the Issuer and the Guarantors shall be
released from their respective obligations under SECTIONS 4.02 (except for
obligations mandated by the TIA), 4.05 through 4.17, inclusive, and 4.20 and
clause (3) of the first paragraph of SECTION 5.01 and (y) SECTION 6.01 (5) and
(6) shall no longer apply with respect to the outstanding Notes on and after the
date the conditions set forth in SECTION 9.04 are satisfied (hereinafter,
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
the Issuer and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section or portion thereof, whether directly or indirectly by reason
of any reference elsewhere herein to any such specified Section or portion
thereof or by reason of any reference in any such specified Section or portion
thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Notes shall be unaffected thereby.
SECTION 9.04. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of
SECTION 9.02 or SECTION 9.03 to the outstanding Notes:
(1) the Issuer must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, U.S. legal
tender, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient
(without reinvestment) in the opinion of a nationally
recognized firm of independent public accountants
selected by the Issuer, to pay the principal of and
interest on the Notes on the stated date for payment
or on the redemption date of the principal or
installment of principal of or interest on the Notes,
and the Trustee must have a valid, perfected,
exclusive security interest in such trust,
(2) in the case of Legal Defeasance, the Issuer shall
have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the
Trustee confirming that:
(a) the Issuer has received from, or there has
been published by the Internal Revenue
Service, a ruling, or
84
(b) since the date hereof, there has been a
change in the applicable U.S. federal income
tax law,
in either case to the effect that, and based thereon
this Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of the
Legal Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner
and at the same times as would have been the case if
such Legal Defeasance had not occurred,
(3) in the case of Covenant Defeasance, the Issuer shall
have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the
Trustee confirming that the Holders will not
recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at
the same times as would have been the case if the
Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on
the date of such deposit (other than a Default
resulting from the borrowing of funds to be applied
to such deposit and the grant of any Lien securing
such borrowing),
(5) the Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a
default under this Indenture or any other material
agreement or instrument to which the Issuer or any of
its Subsidiaries is a party or by which the Issuer or
any of its Subsidiaries is bound,
(6) the Issuer shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was
not made by it with the intent of preferring the
Holders over any other of its creditors or with the
intent of defeating, hindering, delaying or
defrauding any other of its creditors or others, and
(7) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that the conditions provided for in, in the
case of the Officers' Certificate, clauses (1)
through (6) and, in the case of the Opinion of
Counsel, clauses (1) (with respect to the validity
and perfection of the security interest), (2) and/or
(3) and (5) of this paragraph have been satisfied.
85
If the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of and interest on the Notes
when due, then the Issuer's obligations and the obligations of Guarantors under
this Indenture will be revived and no such defeasance will be deemed to have
occurred.
SECTION 9.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to SECTION 9.04 in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer and the Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to SECTION 9.04 or the principal, premium, if any, and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time any money or
U.S. Government Obligations held by it as provided in SECTION 9.04 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with SECTION 9.01, 9.02 or 9.03 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine 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 9.01; provided that if the
Issuer or the Guarantors have made any payment of principal of, premium, if any,
or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuer or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
86
SECTION 9.07. MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon written demand of the Issuer, be paid to the Trustee, or
if sufficient moneys have been deposited pursuant to SECTION 9.04, to the Issuer
(or, if such moneys had been deposited by the Guarantors, to such Guarantors),
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 9.08. MONEYS HELD BY TRUSTEE.
Subject to applicable law, any moneys deposited with the
Trustee or any Paying Agent or then held by the Issuer or the Guarantors in
trust for the payment of the principal of, or premium, if any, or interest on
any Note that are not applied but remain unclaimed by the Holder of such Note
for two years after the date upon which the principal of, or premium, if any, or
interest on such Note shall have respectively become due and payable shall be
repaid to the Issuer (or, if appropriate, the Guarantors), or if such moneys are
then held by the Issuer or the Guarantors in trust, such moneys shall be
released from such trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Issuer and the Guarantors for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided that the Trustee or any such Paying Agent, before being required
to make any such repayment, may, at the expense of the Issuer and the
Guarantors, either mail to each Holder affected, at the address shown in the
register of the Notes maintained by the Registrar pursuant to SECTION 2.03, or
cause to be published once a week for two successive weeks, in a newspaper
published in the English language, customarily published each Business Day and
of general circulation in the City of New York, New York, a notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such mailing or publication, any
unclaimed balance of such moneys then remaining will be repaid to the Issuer.
After payment to the Issuer or the Guarantors or the release of any money held
in trust by the Issuer or any Guarantors, as the case may be, Holders entitled
to the money must look only to the Issuer and the Guarantors for payment as
general creditors unless applicable abandoned property law designates another
Person.
ARTICLE X
GUARANTEE OF NOTES
SECTION 10.01. GUARANTEE.
Subject to the provisions of this Article Ten, each Guarantor,
by execution of this Indenture, jointly and severally, unconditionally
guarantees to each Holder (i) the due and punctual payment of the principal of
and interest on each Note, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise,
87
the due and punctual payment of interest on the overdue principal of and
interest on the Notes, to the extent lawful, and the due and punctual payment of
all other Obligations and due and punctual performance of all obligations of the
Issuer to the Holders or the Trustee all in accordance with the terms of such
Note, this Indenture and the Registration Rights Agreement, and (ii) in the case
of any extension of time of payment or renewal of any Notes or any of such other
Obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, at stated maturity, by
acceleration or otherwise. Each Guarantor, by execution of this Indenture,
agrees that its obligations hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Note or this Indenture, any failure to enforce the
provisions of any such Note, this Indenture or the Registration Rights
Agreement, any waiver, modification or indulgence granted to the Issuer with
respect thereto by the Holder of such Note, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of merger or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged as to any such Note except by payment in full of the principal
thereof and interest thereon. Each Guarantor hereby agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Obligations as provided in Article Six, such Obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
SECTION 10.02. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in SECTION 10.01,
each Guarantor hereby agrees that a notation of such Guarantee, substantially in
the form included in Exhibit G hereto, shall be endorsed on each Note
authenticated and delivered by the Trustee and such Guarantee shall be executed
by either manual or facsimile signature of an Officer or an Officer of a general
partner, as the case may be, of each Guarantor. The validity and enforceability
of any Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Guarantors hereby agrees that its Guarantee set
forth in SECTION 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
88
If an officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 10.03. LIMITATION OF GUARANTEE.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
SECTION 10.04. RELEASE OF GUARANTOR.
A Guarantor shall be released from all of its obligations
under its Guarantee if:
(a) all of the assets of such Guarantor have been sold or
otherwise disposed of in a transaction in compliance with the terms of this
Indenture (including SECTIONS 4.09, 4.20 and 5.01);
(b) all of the Equity Interests held by the Issuer and the
Restricted Subsidiaries of such Guarantor have been sold or otherwise disposed
of in a transaction in compliance with the terms of this Indenture (including
SECTIONS 4.09, 4.20 and 5.01);
(c) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of this Indenture (including SECTION 4.15);
and in each such case, the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested
by the Issuer or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Notes and under this
Article Ten.
89
SECTION 10.05. WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Issuer that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under its Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Issuer, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Issuer, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or Note on account of such claim or other rights. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and the Notes shall
not have been paid in full, such amount shall have been deemed to have been paid
to such Guarantor for the benefit of, and held in trust for the benefit of, the
Holders, and shall forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or unmatured,
in accordance with the terms of this Indenture. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this SECTION
10.05 is knowingly made in contemplation of such benefits.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any provision of
this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any
provision of this Indenture excludes any TIA provision that may be so excluded,
such TIA provision shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.02. NOTICES.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
90
If to the Issuer or any Guarantor:
RES-CARE, INC.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
Fax Number: (000) 000-0000
with, in the case of any notice furnished pursuant to
Article Six, a copy to:
Xxxxx Xxxxx Xxxx LLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. XxxXxxxxx, Esq.
Fax Number: (000) 000-0000
If to the Trustee:
NATIONAL CITY BANK
c/o National City Bank of Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Office
Fax Number: (000) 000-0000
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Issuer, the Guarantors or the Trustee by written notice to
the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be mailed
to him by first-class mail, postage prepaid, at his 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 to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture,
91
then such method of notification as shall be made with the approval of the
Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Issuer, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Issuer or any Guarantor
to the Trustee to take any action under this Indenture, the Issuer or such
Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in SECTION 11.05) stating that,
in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in SECTION 11.05) stating that,
in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance by or
on behalf of the Issuer or any Guarantor with a condition or covenant provided
for in this Indenture 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, it
or he has made such examination or investigation as
is necessary to enable it or 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 covenant or condition has been
complied with.
92
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or
meetings of Holders. The Registrar and Paying Agent may make reasonable rules
for their functions.
SECTION 11.07. BUSINESS DAYS; LEGAL HOLIDAYS.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday or other day on which (i) commercial
banks in the State of New York are authorized or required by law to close or
(ii) the New York Stock Exchange is not open for trading. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Issuer or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
No recourse for the payment of the principal of or premium, if
any, or interest, including, on any of the Notes, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Issuer or any Guarantor in this Indenture or in any
supplemental indenture, or in any of the Notes, or because of the creation of
any Indebtedness represented thereby, shall be had against any stockholder,
officer, director or employee, as such, past, present or future, of the Issuer
or of any successor corporation or against the property or assets of any such
stockholder, officer, employee or director, either directly or through the
Issuer or any Guarantor, or any successor corporation thereof, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the Notes are solely obligations of the Issuer and the Guarantors,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, any stockholder, officer, employee or director of the Issuer or any
Guarantor, or any successor corporation thereof, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or the Notes or implied
therefrom, and that any and all such personal liability of, and any and all
claims against every
93
stockholder, officer, employee and director, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Notes. It is understood that this limitation
on recourse is made expressly for the benefit of any such shareholder, employee,
officer or director and may be enforced by any of them.
SECTION 11.11. SUCCESSORS.
All agreements of the Issuer and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
SECTION 11.12. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.14. SEPARABILITY.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
94
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
RES-CARE, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Executive Vice President Finance and Administration and
CFO
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Chief Development Officer
ALTERNATIVE XXXXXXX, XXX.
BALD EAGLE ENTERPRISES, INC.
CAPITAL TX INVESTMENTS, INC.
CATX PROPERTIES, INC.
CNC/ACCESS, INC.
COMMUNITY ADVANTAGE, INC.
COMMUNITY ALTERNATIVES ILLINOIS, INC.
COMMUNITY ALTERNATIVES INDIANA, INC.
COMMUNITY ALTERNATIVES KENTUCKY, INC.
COMMUNITY ALTERNATIVES MISSOURI, INC.
COMMUNITY ALTERNATIVES NEBRASKA, INC.
COMMUNITY ALTERNATIVES TEXAS PARTNER, INC.
COMMUNITY ALTERNATIVES VIRGINIA, INC.
EDUCARE COMMUNITY LIVING - TEXAS LIVING
CENTERS, INC.
J. & J. CARE CENTERS, INC.
NORMAL LIFE, INC.
PEOPLESERVE, INC.
RAISE GEAUGA, INC.
RES-CARE ALABAMA, INC.
RES-CARE CALIFORNIA, INC. D/B/A RCCA SERVICES
RES-CARE ILLINOIS, INC.
RES-CARE KANSAS, INC.
RES-CARE NEW JERSEY, INC.
RES-CARE NEW MEXICO, INC.
RES-CARE OHIO, INC.
RES-CARE OKLAHOMA, INC.
95
RES-CARE OTHER OPTIONS, INC.
RES-CARE PREMIER, INC.
RES-CARE TENNESSEE, INC.
RES-CARE TRAINING TECHNOLOGIES, INC.
RES-CARE WASHINGTON, INC.
ROCKCREEK, INC.
RSCR CALIFORNIA, INC.
RSCR INLAND, INC.
RSCR WEST VIRGINIA, INC.
SOUTHERN HOME CARE SERVICES, INC.
TANGRAM REHABILITATION NETWORK, INC.
TEXAS HOME MANAGEMENT, INC.
THM HOMES, INC.
XXXXXXXX GROUP HOMES, INC.
XXXXX MANAGEMENT, INC.
BOLIVAR DEVELOPMENTAL TRAINING CENTER, INC.
BOLIVAR ESTATES, INC.
EBENEZER ESTATES, INC.
FORT XXXXX ESTATES, INC.
HILLSIDE ESTATES, INC.
HYDESBURG ESTATES, INC.
INDIVIDUALIZED SUPPORTED LIVING, INC.
MEADOW LANE ESTATES, INC.
MISSOURI PROGRESSIVE SERVICES, INC.
OAK WOOD SUITES OF BOLIVAR, INC.
OAKVIEW ESTATES OF BOLIVAR, INC.
XXXXXX XXXXX XXXXXXX, XXX.
XXXXX XXXXX XXXXXXX, INC.
SHA-REE ESTATES, INC.
SKYVIEW ESTATES, INC.
UPWARD BOUND, IN.
XXXXXXX ESTATES, INC.
CAREERS IN PROCRESS, INC.
EDUCARE COMMUNITY LIVING - NORMAL LIFE, INC.
NORMAL LIFE OF CALIFORNIA, INC.
NORMAL LIFE OF CENTRAL INDIANA, INC.
NORMAL LIFE FAMILY SERIVCES, INC.
NORMAL LIFE OF GEORGIA, INC.
NORMAL LIFE O KENTUCKY, INC.
NORMAL LIFE OF LAFAYETTE, INC.
NORMAL LIFE OF LAKE XXXXXXX, INC.
NORMAL LIFE OF LOUISIANA, INC.
NORMAL LIFE OF SOUTHERN INDIANA, INC.
RES-CARE FLORIDA, INC.
EDUCARE COMMUNITY LIVING CORPORATION -
AMERICA
96
PSI HOLDINGS, INC.
VOCA CORPORATION OF AMERICA
VOCA RESIDENTIAL SERVICES, INC.
B.W.J. OPPORTUNITY CENTERS, INC.
THE CITADEL GROUP, INC.
EDUCARE COMMUNITY LIVING CORPORATION - GULF COAST
EDUCARE COMMUNITY LIVING CORPORATION - MISSOURI
EDUCARE COMMUNITY LIVING CORPORATION - NEVADA EDUCARE
COMMUNITY LIVING CORPORATION - NEW MEXICO EDUCARE
COMMUNITY LIVING CORPORATION - NORTH CAROLINA EDUCARE
COMMUNITY LIVING CORPORATION - TEXAS VOCA CORP.
VOCA CORPORATION OF FLORIDA VOCA CORPORATION OF
INDIANA VOCA CORPORATION OF MARYLAND VOCA CORPORATION
OF NEW JERSEY VOCA CORPORATION OF NORTH CAROLINA VOCA
CORPORATION OF OHIO VOCA CORPORATION OF WASHINGTON,
D.C. VOCA CORPORATION OF WEST VIRGINIA, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
THE ACADEMY FOR INDIVIDUAL EXCELLENCE, INC.
ALTERNATIVE YOUTH SERVICES, INC.
RES-CARE AVIATION, INC.
GENERAL HEALTH CORPORATION
YOUTHTRACK, INC.
EMPLOY-ABILITY UNLIMITED, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Treasurer
97
EDUCARE COMMUNITY LIVING LIMITED PARTNERSHIP
By: Community Alternatives Texas Partner, Inc., its General
Partner
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
NORMAL LIFE OF INDIANA
By: Normal Life of Central Indiana, Inc., one of its General Partners
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
and
By: Normal Life of Southern Indiana, Inc., the other General
Partner
By: /s/ L. Xxxxx Xxxxx
Name: L Xxxxx Xxxxx
Title: Assistant Treasurer
VOCA OF INDIANA, LLC, a limited liability company
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
CREATIVE NETWORKS, LLC
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Manager
98
NATIONAL CITY BANK, as Trustee
By: /s/ H. E. Xxxxxxxx
Name: H. E. Xxxxxxxx
Title: VP
99
EXHIBIT A
RES-CARE, INC.
CUSIP No. _________ $_________
10 5/8% SENIOR NOTE DUE 2008
RES-CARE, INC., a Kentucky corporation (the "Company"), for
value received, promises to pay to CEDE & CO. or registered assigns the
principal sum of $_________ on November 15, 2008.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
RES-CARE, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Dated:
Certificate of Authentication
This is one of the 10 5/8% Senior Notes due 2008 referred to
in the within-mentioned Indenture.
NATIONAL CITY BANK, as Trustee
By:
---------------------------------------
Dated:
A-1
[FORM OF REVERSE OF NOTE]
RES-CARE, INC.
10 5/8% SENIOR NOTE DUE 2008
Capitalized terms used herein shall have the meanings ascribed
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. RES-CARE, INC., a Kentucky corporation (the
"Company"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 10 5/8% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including November 15, 2001 to but excluding
the date on which interest is paid. Interest shall be payable in arrears on each
May 15 and November 15, commencing May 15, 2002. 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 hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on May 1 or November 1 next preceding the interest payment
date (whether or not a Business Day). Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. PAYING AGENT AND REGISTRAR. Initially, National City Bank
(the "Trustee") will act as a Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice. Neither the Company nor any of its
Affiliates may act as Paying Agent or Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of November 15, 2001 (the "Indenture") among the Company, the
Guarantors (as defined in the Indenture) and the Trustee. This is one of an
issue of Notes of the Company issued, or to be issued, under the Indenture. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb), as amended from time to time. The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of them. The Notes are obligations of the Company initially limited in
aggregate principal amount to $_________. Under certain circumstances described
in the Indenture, the Company may issue Additional Notes.
5. OPTIONAL REDEMPTION. (a) The Company, at its option, may
redeem the Notes, in whole or in part, at any time on or after November 15, 2005
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as
A-2
percentages of principal amount), set forth below, together, in each case, with
accrued and unpaid interest thereon, if any, to the Redemption Date, if redeemed
during the twelve month period beginning on November 15 of each year listed
below:
Year Redemption
---- ----------
2005........................... 105.313%
2006........................... 102.656%
2007 and thereafter:........... 100.000%
(b) Notwithstanding the foregoing, at any time prior to
November 15, 2004, the Issuer may redeem up to 35% of the aggregate principal
amount of the Notes with the net cash proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 110.625% of the principal amount of the
Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to the
Redemption Date; provided that (1) at least 65% of the aggregate principal
amount of Notes issued under the Indenture remains outstanding immediately after
the occurrence of such redemption and (2) the redemption occurs within 90 days
of the date of the closing of any such Qualified Equity Offering.
(c) In the event of a redemption of fewer than all of the
Notes, the Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, while such
Notes are listed, or if such Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other manner as the Trustee
shall deem fair and equitable. The Notes will be redeemable in whole or in part
upon not less than 30 nor more than 60 days' prior written notice, mailed by
first class mail to a Holder's last address as it shall appear on the register
maintained by the Registrar of the Notes. On and after any redemption date,
interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
7. OFFERS TO PURCHASE. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
8. REGISTRATION RIGHTS. Pursuant to a Registration Rights
Agreement among the Company, the Guarantors, and UBS Warburg LLC and Xxxxxx
Brothers, Inc., the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for notes of a separate series issued under the Indenture (or a trust
indenture substantially identical to the
A-3
Indenture in accordance with the terms of the Registration Rights Agreement)
which have been registered under the Securities Act, in like principal amount
and having substantially identical terms as the Notes. The Holders shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes or portion of a Note selected
for redemption, or register the transfer of or exchange any Notes for a period
of 15 days before a mailing of notice of redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee will pay the money back to
the Company at its written request. After that, Holders entitled to the money
must look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
12. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company, the
Guarantors and the Trustee (if a party thereto) may, without the consent of the
Holders of any outstanding Notes, amend, waive or supplement the Indenture or
the Notes for certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and making any
change that does not materially and adversely affect the rights of any Holder.
Other amendments and modifications of the Indenture or the Notes may be made by
the Company, the Guarantors and the Trustee with the consent of the Holders of
not less than a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of the Holders of the
particular Notes to be affected.
13. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
their Equity Interests or certain Indebtedness, make certain Investments, create
or incur Liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other Person or transfer all or substantially all of the Company's or any
Guarantor's assets. Such limitations are subject to a number of
A-4
important qualifications and exceptions. Pursuant to Section 4.04 of the
Indenture, the Company must annually report to the Trustee on compliance with
such limitations.
14. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article Five of the Indenture,
the predecessor corporation will, except as provided in Article Five, be
released from those obligations.
15 DEFAULTS AND REMEDIES. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(7) or (8) of
the Indenture with respect to the Company) occurs and is continuing, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, by written notice to the Trustee and the Company, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare all principal of and
accrued interest on all Notes to be immediately due and payable and such amounts
shall become immediately due and payable. If an Event of Default specified in
Section 6.01(7) or (8) of the Indenture occurs with respect to the Company, the
principal amount of and interest on, all Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal, premium, if any, or interest on the Notes or a
default in the observance or performance of any of the obligations of the
Company under Article Five of the Indenture) if it determines that withholding
notice is in their best interests.
16. 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.
17. DEFEASANCE AND DISCHARGE. The Company's obligations
pursuant to the Indenture may be defeased and discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Notes or upon the irrevocable deposit with the
Trustee of United States dollars or U.S. Government Obligations sufficient to
pay when due principal of and interest on the Notes to maturity or redemption,
as the case may be, or as otherwise provided in the Indenture.
18. GUARANTEES. The Note will be entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
A-5
19. AUTHENTICATION. This Note shall not be valid until the
Trustee signs the certificate of authentication by manual signature of an
authorized officer.
20. GOVERNING LAW. This Note shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York. The Trustee, the
Company, the Guarantor and the Holders agree to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to the Indenture or the Notes.
21. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT
(= 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. Requests may be made to:
RES-CARE, INC.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Executive Vice President Finance and Administration
A-6
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(Print or type name, address and zip code of assignee) and irrevocably appoint:
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
-------------- ----------------------------------------
(Sign exactly as your name
appears on the other side of this Note)
Signature Guarantee:
--------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.09 or Section 4.20 of the
Indenture, check the appropriate box:
[ ] Section 4.09 [ ] Section 4.20
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.09 or Section 4.20 of the Indenture, state the
amount you elect to have purchased:
$
---------------------------------
(multiple of $1,000)
Date: Your Signature:
------------------------ -----------------------------
(Sign exactly as your name
appears on the other
side of this Note)
Signature Guarantee:
-------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-8
EXHIBIT B
[FORM OF LEGEND FOR 144A NOTES AND OTHER NOTES THAT ARE RESTRICTED NOTES]
The Note (or its predecessors) evidenced hereby was originally
issued in a transaction exempt from registration under Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), and the Note
evidenced hereby may not be offered, sold or otherwise transferred in the
absence of such registration or an applicable exemption therefrom. Each
purchaser of the Note evidenced hereby is hereby notified that the seller may be
relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A thereunder or another exemption under the Securities Act.
The holder of the Note evidenced hereby agrees for the benefit of Res-Care, Inc.
(the "Company") that (a) such Note may be resold, pledged or otherwise
transferred only (i)(a) to a person who the seller reasonably believes is a
qualified institutional buyer (as defined in Rule 144A under the Securities
Act), purchasing for its own account in a transaction meeting the requirements
of Rule 144A under the Securities Act, (b) in a transaction meeting the
requirements of Rule 144 of the Securities Act, (c) outside the United States to
a foreign person in a transaction meeting the requirements of Rule 903 or Rule
904 of Regulation S under the Securities Act or (d) in accordance with another
exemption from the registration requirements of the Securities Act provided that
in the case of a transfer pursuant to clause (d) such transfer is subject to the
receipt by the Registrar (and the Company, if it so requests) of a certification
of the Transferor and an opinion of counsel to the effect that such transfer is
in compliance with the Securities Act, (ii) to the Company or (iii) pursuant to
an effective registration statement under the Securities Act and, in each case,
in accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction and the indenture governing the
Notes, and (b) the holder will, and each subsequent holder is required to,
notify any purchaser from it of the Note evidenced hereby of the resale
restrictions set forth in (a) above.
B-1
[FORM OF ASSIGNMENT FOR 144A NOTES AND OTHER NOTES THAT ARE RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee) and irrevocably appoint:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder. or
[ ](b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your Signature:
------------------------ ------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
------------------------------
B-2
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
B-3
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
------------------------------ ---------------------------------------
NOTICE: To be executed by an
Executive Officer
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
This Note has not been registered under the U.S. Securities
Act of 1933, as amended (the "Act"), and, unless so registered, may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. Persons unless registered under the Act or except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee) and irrevocably appoint:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[](a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A thereunder.
or
[](b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your Signature:
------------------------ -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
-----------------------
C-2
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
C-3
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
------------------- --------------------------------------------
NOTICE: To be executed by an
Executive Officer
C-4
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
This Note is a Global Note within the meaning of the indenture
hereinafter referred to and is registered in the name of a depository or a
nominee of a depository. This Note is not exchangeable for Notes registered in
the name of a person other than the depository or its nominee except in the
limited circumstances described in the indenture, and no transfer of this Note
(other than a transfer of this Note as a whole by the depository to a nominee of
the depository or by a nominee of the depository to the depository or another
nominee of the depository) may be registered except in the limited circumstances
described in the Indenture.
Unless this certificate is presented by an authorized
representative of the Depository Trust Company (a New York corporation) ("DTC")
to the issuer or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of CEDE & CO. or in such
other name as it 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.
D-1
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Res-Care, Inc.
c/o National City Bank of Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:
Ladies and Gentlemen:
In connection with our proposed purchase of 10 5/8% Senior
Notes due 2008 (the "Notes") of Res-Care, Inc., a Kentucky Corporation (the
"Company"), we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in
the Indenture dated as of November 15, 2001 relating to the
Notes and we agree to be bound by, and not to resell, pledge
or otherwise transfer the Notes except in compliance with,
such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act or any other applicable securities laws,
have not been and will not be qualified for sale under the
securities laws of any non-U.S. jurisdiction and that the
Notes may not be offered, sold, pledged or otherwise
transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should
sell any Notes, we will do so only (i) to the Company or any
subsidiary thereof, (ii) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A), (iii) to an institutional "accredited
investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of the Notes, (iv) outside the United States to
persons other than U.S. persons in offshore transactions
meeting the requirements of Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption form
registration provided by Rule 144 under the Securities Act (if
applicable) or (vi) pursuant to an effective registration
statement, and we further agree to provide to any person
purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated
herein.
E-1
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such
certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and
have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of
our investment in the Notes, and we and any accounts for which
we are acting each are able to bear the economic risk of our
or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or
for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole
investment discretion.
6. We are not acquiring the Notes with a view toward the
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------------------
Name:
Title:
Date:
------------------------------
E-2
EXHIBIT F
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
Res-Care, Inc.
c/o National City Bank of Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:
Re: Res-Care, Inc., a Kentucky corporation (the "Company") 10 5/8%
Senior Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or to
a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 904(a) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
F-1
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------------
F-2
EXHIBIT G
FORM OF NOTATION OF GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of November 15, 2001 by and among Res-Care, Inc., as issuer, the
Guarantors, as guarantors, and National City Bank, as Trustee (as amended,
restated or supplemented from time to time, the "Indenture"), and subject to the
provisions of the Indenture, (a) the due and punctual payment of the principal
of, and premium, if any, and interest on the Notes, when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal of, and premium and,
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Ten of the Indenture, and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this
Guarantee would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of such
Guarantor under this Guarantee shall be reduced to the maximum amount
permissible under such fraudulent conveyance or similar law.
The obligations of the Guarantors to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture, and reference is hereby made to the Indenture for
the precise terms and limitations of this Guarantee. Each Holder of the Note to
which this Guarantee is endorsed, by accepting such Note, agrees to and shall be
bound by such provisions.
[Signatures on Following Pages]
G-1
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guarantee to be signed by a duly authorized officer.
ALTERNATIVE XXXXXXX, XXX.
BALD EAGLE ENTERPRISES, INC.
CAPITAL TX INVESTMENTS, INC.
CATX PROPERTIES, INC.
CNC/ACCESS, INC.
COMMUNITY ADVANTAGE, INC.
COMMUNITY ALTERNATIVES ILLINOIS, INC.
COMMUNITY ALTERNATIVES INDIANA, INC.
COMMUNITY ALTERNATIVES KENTUCKY, INC.
COMMUNITY ALTERNATIVES MISSOURI, INC.
COMMUNITY ALTERNATIVES NEBRASKA, INC.
COMMUNITY ALTERNATIVES TEXAS PARTNER, INC.
COMMUNITY ALTERNATIVES VIRGINIA, INC.
EDUCARE COMMUNITY LIVING - TEXAS LIVING
CENTERS, INC.
J. & J. CARE CENTERS, INC.
NORMAL LIFE, INC.
PEOPLESERVE, INC.
RAISE GEAUGA, INC.
RES-CARE ALABAMA, INC.
RES-CARE CALIFORNIA, INC. D/B/A RCCA SERVICES
RES-CARE ILLINOIS, INC.
RES-CARE KANSAS, INC.
RES-CARE NEW JERSEY, INC.
RES-CARE NEW MEXICO, INC.
RES-CARE OHIO, INC.
RES-CARE OKLAHOMA, INC.
RES-CARE OTHER OPTIONS, INC.
RES-CARE PREMIER, INC.
RES-CARE TENNESSEE, INC.
RES-CARE TRAINING TECHNOLOGIES, INC.
RES-CARE WASHINGTON, INC.
ROCKCREEK, INC.
RSCR CALIFORNIA, INC.
RSCR INLAND, INC.
RSCR WEST VIRGINIA, INC.
SOUTHERN HOME CARE SERVICES, INC.
TANGRAM REHABILITATION NETWORK, INC.
TEXAS HOME MANAGEMENT, INC.
THM HOMES, INC.
XXXXXXXX GROUP HOMES, INC.
XXXXX MANAGEMENT, INC.
G-2
BOLIVAR DEVELOPMENTAL TRAINING CENTER, INC.
BOLIVAR ESTATES, INC.
EBENEZER ESTATES, INC.
FORT XXXXX ESTATES, INC.
HILLSIDE ESTATES, INC.
HYDESBURG ESTATES, INC.
INDIVIDUALIZED SUPPORTED LIVING, INC.
MEADOW LANE ESTATES, INC.
MISSOURI PROGRESSIVE SERVICES, INC.
OAK WOOD SUITES OF BOLIVAR, INC.
OAKVIEW ESTATES OF BOLIVAR, INC.
XXXXXX XXXXX XXXXXXX, XXX.
XXXXX XXXXX XXXXXXX, INC.
SHA-REE ESTATES, INC.
SKYVIEW ESTATES, INC.
UPWARD BOUND, IN.
XXXXXXX ESTATES, INC.
CAREERS IN PROCRESS, INC.
EDUCARE COMMUNITY LIVING - NORMAL LIFE, INC.
NORMAL LIFE OF CALIFORNIA, INC.
NORMAL LIFE OF CENTRAL INDIANA, INC.
NORMAL LIFE FAMILY SERIVCES, INC.
NORMAL LIFE OF GEORGIA, INC.
NORMAL LIFE O KENTUCKY, INC.
NORMAL LIFE OF LAFAYETTE, INC.
NORMAL LIFE OF LAKE XXXXXXX, INC.
NORMAL LIFE OF OUISIANA, INC.
NORMAL LIFE OF SOUTHERN INDIANAN, INC.
RES-CARE FLORIDA, INC.
EDUCARE COMMUNITY LIVING CORPORATION -
AMERICA
PSI HOLDINGS, INC.
VOCA CORPORATION OF AMERICA
VOCA RESIDENTIAL SERVICES, INC.
B.W.J. OPPORTUNITY CENTERS, INC.
THE CITADEL GROUP, INC.
EDUCARE COMMUNITY LIVING CORPORATION - GULF COAST
EDUCARE COMMUNITY LIVING CORPORATION - MISSOURI
EDUCARE COMMUNITY LIVING CORPORATION - NEVADA EDUCARE
COMMUNITY LIVING CORPORATION - NEW MEXICO
G-3
EDUCARE COMMUNITY LIVING CORPORATION - NORTH CAROLINA
EDUCARE COMMUNITY LIVING CORPORATION - TEXAS
VOCA CORP.
VOCA CORPORATION OF FLORIDA VOCA CORPORATION OF
INDIANA VOCA CORPORATION OF MARYLAND VOCA CORPORATION
OF NEW JERSEY VOCA CORPORATION OF NORTH CAROLINA VOCA
CORPORATION OF OHIO VOCA CORPORATION OF WASHINGTON,
D.C. VOCA CORPORATION OF WEST VIRGINIA, INC.
By: _______________________________________________
Name:
Title:
THE ACADEMY FOR INDIVIDUAL EXCELLENCE, INC.
ALTERNATIVE YOUTH SERVICES, INC.
RES-CARE AVIATION, INC.
GENERAL HEALTH CORPORATION
YOUTHTRACK, INC.
EMPLOY-ABILITY UNLIMITED, INC.
By: _______________________________________________
Name:
Title:
EDUCARE COMMUNITY LIVING LIMITED PARTNERSHIP
By: Community Alternatives Texas Partner, Inc.,
its General Partner
By: ____________________________________________
Name:
Title:
NORMAL LIFE OF INDIANA
By: Normal Life of Central Indiana, Inc., one of
its General Partners
By: ____________________________________________
G-4
Name:
Title:
and
By: Normal Life of Southern Indiana, Inc., the other
General Partner
By: ____________________________________________
Name:
Title:
VOCA OF INDIANA, LLC, a limited liability company
By: ________________________________________________
Name:
Title:
CREATIVE NETWORKS, LLC
By: ________________________________________________
Name:
Title:
G-5
EXHIBIT H
FORM OF SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges or a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
---------------- --------------------- --------------------- ------------------------ -----------------------
H-1
