EXHIBIT 4.1
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VENCOR OPERATING INC., as Company
VENCOR, INC., as Guarantor
AND
PNC BANK, NATIONAL ASSOCIATION, as Trustee
Indenture
Dated as of April 30, 1998
__________
$300,000,000
9 7/8% Guaranteed Senior Subordinated Notes due 2005
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TABLE OF CONTENTS
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ARTICLE 1
Definitions
Section 1.01. Certain Terms Defined...................................... 15
Section 1.02. Other Definitions.......................................... 35
ARTICLE 2
Issue, Execution, Form and Registration of Securities
Section 2.01. Authentication and Delivery of Securities.................. 36
Section 2.02. Execution of Securities and Guarantee...................... 36
Section 2.03. Certificate of Authentication.............................. 37
Section 2.04. Form, Denomination and Date of Securities; Payments of
Interest............................................................. 37
Section 2.05. Restrictive Legends........................................ 39
Section 2.06. Registration, Transfer and Exchange........................ 40
Section 2.07. Book-Entry Provisions for Global Securities................ 42
Section 2.08. Special Transfer Provisions................................ 44
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.. 48
Section 2.10. Cancellation of Securities................................. 49
Section 2.11. Temporary Securities....................................... 49
Section 2.12. CUSIP and CINS Numbers..................................... 50
ARTICLE 3
Covenants of the Company, the Guarantor and the Trustee.
Section 3.01. Payment of Principal and Interest.......................... 50
Section 3.02. Offices for Payments, etc.................................. 50
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee......... 51
Section 3.04. Paying Agents.............................................. 51
Section 3.05. Certificates to Trustee.................................... 52
Section 3.06. Securityholders' Lists..................................... 52
Section 3.07. Reports by the Trustee..................................... 52
Section 3.08. Limitation on Restricted Payments.......................... 53
Section 3.09. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock................................................... 55
Section 3.10. Disposition of Proceeds of Asset Sales..................... 57
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Section 3.11. Limitation on Liens........................................ 61
Section 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.................................... 61
Section 3.13. Limitation on Line of Business............................. 62
Section 3.14. Limitation on Senior Subordinated Debt..................... 62
Section 3.15. Limitation on Transactions with Affiliates................. 62
Section 3.16. Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries.............................................. 63
Section 3.17. Change of Control.......................................... 64
Section 3.18. Termination of Certain Covenants if Securities Rated
Investment Grade..................................................... 66
Section 3.19. Reports.................................................... 66
Section 3.20. Waiver of Stay, Extension or Usury Laws.................... 68
ARTICLE 4
Remedies of the Trustee and Holders on Event of Default
Section 4.01. Events of Default.......................................... 68
Section 4.02. Acceleration............................................... 70
Section 4.03. Other Remedies............................................. 71
Section 4.04. Waiver of Past Defaults.................................... 71
Section 4.05. Control by Majority........................................ 71
Section 4.06. Limitation on Suits........................................ 71
Section 4.07. Rights of Holders to Receive Payment....................... 72
Section 4.08. Collection Suit by Trustee................................. 72
Section 4.09. Trustee May File Proofs of Claim........................... 72
Section 4.10. Priorities................................................. 73
Section 4.11. Undertaking for Costs...................................... 73
ARTICLE 5
Concerning the Trustee
Section 5.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default............................................ 74
Section 5.02. Certain Rights of the Trustee.............................. 75
Section 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof........................ 76
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc... 77
Section 5.05. Moneys Held by Trustee..................................... 77
Section 5.06. Notice of Default.......................................... 77
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Section 5.07. Compensation and Indemnification of Trustee and Its
Prior Claim.......................................................... 77
Section 5.08. Right of Trustee to Rely on Officer's Certificate, etc..... 78
Section 5.09. Persons Eligible for Appointment as Trustee................ 78
Section 5.10. Resignation and Removal; Appointment of Successor
Trustee.............................................................. 79
Section 5.11. Acceptance of Appointment by Successor Trustee............. 80
Section 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.................................................. 81
Section 5.13. Preferential Collection of Claims.......................... 81
ARTICLE 6
Concerning the Holders
Section 6.01. Evidence of Action Taken by Holders........................ 82
Section 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date.............................................. 82
Section 6.03. Securities Owned by Company or Guarantor Deemed Not
Outstanding......................................................... 83
Section 6.04. Right of Revocation of Action Taken........................ 83
ARTICLE 7
Supplemental Indentures
Section 7.01. Supplemental Indentures Without Consent of Holders......... 84
Section 7.02. With Consent of Holders.................................... 84
Section 7.03. Effect of Supplemental Indenture........................... 86
Section 7.04. Documents to Be Given to Trustee; Compliance with TIA...... 86
Section 7.05. Notation on Securities in Respect of Supplemental
Indentures........................................................... 86
ARTICLE 8
Consolidation, Merger or Sale of Assets
Section 8.01. When the Company or the Guarantor May Merge, Etc........... 87
Section 8.02. Successor Corporation Substituted.......................... 87
Section 8.03. Opinion of Counsel to Trustee.............................. 88
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ARTICLE 9
Subordination
Section 9.01. Agreement to Subordinate................................... 88
Section 9.02. Liquidation; Dissolution; Bankruptcy....................... 88
Section 9.03. Default on Designated Senior Debt.......................... 90
Section 9.04. When Distributions Must Be Paid Over....................... 90
Section 9.05. Notice..................................................... 91
Section 9.06. Subrogation................................................ 91
Section 9.07. Relative Rights............................................ 92
Section 9.08. The Company, the Guarantor and Holders May Not Impair
Subordination........................................................ 92
Section 9.09. Distribution or Notice to Representative................... 93
Section 9.10. Rights of Trustee and Paying Agent......................... 93
Section 9.11. Authorization to Effect Subordination...................... 94
Section 9.12. Payment.................................................... 94
ARTICLE 10
Guarantee
Section 10.01. Guarantee................................................. 94
Section 10.02. Subrogation............................................... 96
ARTICLE 11
Redemption of Securities
Section 11.01. Right of Optional Redemption; Prices...................... 96
Section 11.02. Notice of Redemption; Partial Redemptions................. 96
Section 11.03. Payment of Securities Called for Redemption............... 97
Section 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption............................................. 98
ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.01. Company's and Guarantor's Option to Effect Defeasance
or Covenant Defeasance............................................... 98
Section 12.02. Legal Defeasance and Discharge............................ 98
Section 12.03. Covenant Defeasance....................................... 99
Section 12.04. Conditions to Legal or Covenant Defeasance................ 100
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Section 12.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions............................. 101
Section 12.06. Repayment to the Company or the Guarantor.................. 102
Section 12.07. Reinstatement.............................................. 102
ARTICLE 13
Miscellaneous Provisions
Section 13.01. Incorporators, Stockholders, Officers and Directors of
Company and the Guarantor Exempt from Individual Liability........... 103
Section 13.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders.......................................................... 103
Section 13.03. Successors and Assigns of Company and Guarantor
Bound by Indenture................................................... 103
Section 13.04. Notices and Demands on Company, Guarantor, Trustee
and Holders.......................................................... 104
Section 13.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein................................... 104
Section 13.06. Payments Due on Saturdays, Sundays and Holidays............ 105
Section 13.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939................................................ 106
Section 13.08. New York Law to Govern..................................... 106
Section 13.09. Third Party Beneficiaries.................................. 106
Section 13.10. Counterparts............................................... 106
Section 13.11. Effect of Headings......................................... 106
EXHIBIT A. Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Regulation S......................................................... A-1
v
THIS INDENTURE, dated as of April 30, 1998 among Vencor Operating, Inc., a
Delaware corporation (the "COMPANY"), Vencor, Inc., a Delaware corporation (the
"GUARANTOR"), and PNC Bank, National Association (the "TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issue of its 9 7/8% Guaranteed
Senior Subordinated Notes due 2005 (the "SECURITIES") and, to provide, among
other things, for the authentication, delivery and administration thereof, the
Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery of
this Indenture to provide for its Guarantee of such Securities; and
WHEREAS, the Securities, the Guarantee and the Trustee's certificate of
authentication shall be in substantially the following form:
[FORM OF FACE OF SECURITY]
No. $
[CUSIP][CINS]
Vencor Operating, Inc.
9 7/8% Guaranteed Senior Subordinated Note Due 2005
Vencor Operating, Inc., a Delaware corporation (the "COMPANY"), for value
received hereby promises to pay to or registered assigns the
principal sum of Dollars at the Company's office or agency for
said purpose in the City of New York, on May 1, 2005, in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, semi-annually
on May 1 and November 1 (each an "INTEREST PAYMENT DATE") of each year,
commencing with November 1, 1998, on said principal sum in like coin or currency
at the rate per annum set forth above at said office or agency from the most
recent Interest Payment Date to which interest on the Securities has been paid
or duly provided for, unless the date hereof is a date to which interest on the
Securities has been paid or duly provided for, in which case from the date of
this Security, or, if no interest on the Securities [or on the Securities for
which these Securities were exchanged pursuant to the Exchange Offer]/1/ has
been paid or duly provided for, from April 30, 1998. Notwithstanding the
foregoing, if the date hereof is after April 15 or October 15 (each an "INTEREST
RECORD DATE"), as the
_______________________
/1/To be included in Exchange Securities.
case may be, and before the immediately following Interest Payment Date, this
Security shall bear interest from such Interest Payment Date; provided, that if
the Company shall default in the payment of interest due on such Interest
Payment Date then this Security shall bear interest from the next preceding
Interest Payment Date to which interest on the Securities has been paid or duly
provided for. The interest so payable on any Interest Payment Date will, except
as otherwise provided in the Indenture referred to on the reverse hereof, be
paid to the person in whose name this Security is registered at the close of
business on the Interest Record Date preceding such Interest Payment Date
whether or not such day is a business day; provided that interest may be paid,
at the option of the Company, by mailing a check therefor payable to the
registered holder entitled thereto at such holder's last address as it appears
on the Security register or by wire transfer, in immediately available funds, to
such bank or other entity in the continental United States as shall be
designated in writing by such holder prior to the relevant Interest Record Date
and shall have appropriate facilities for such purpose.
Interest, other than default interest, on the Securities will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
VENCOR OPERATING, INC.
By:___________________________________
Name:
Title:
3
[FORM OF REVERSE OF SECURITY]
Vencor Operating, Inc.
9 7/8% Guaranteed Senior Subordinated Note Due 2005
This Security is one of a duly authorized issue of debt securities of the
Company, limited to the aggregate principal amount of $300,000,000 (except as
otherwise provided in the Indenture mentioned below), issued or to be issued
pursuant to an indenture dated as of April 30, 1998 (the "INDENTURE"), duly
executed and delivered by the Company to PNC Bank, National Association as
Trustee (herein called the "TRUSTEE"). Reference is hereby made to the Indenture
and all indentures supplemental thereto for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders (the words "HOLDERS" or "HOLDER" meaning
the registered holders or registered holder) of the Securities.
This Security will bear interest until final maturity at a rate per annum
shown above, except as provided in the next paragraph. The Company will pay
interest on overdue principal of, premium, if any, and to the extent lawful,
interest on overdue installments of interest, at a 9 7/8% rate per annum based
on a year of 360 days and actual days elapsed.
[In the event that (i) the Exchange Offer Registration Statement (as
defined in the Indenture) relating to the Exchange Offer (as defined in the
Indenture) is not filed with the Commission (as defined in the Indenture) on or
prior to the date that is 60 days after the Closing Date (as defined in the
Indenture), (ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the date that is 120 days after the Closing Date, or
(iii) the Exchange Offer is not consummated or a Shelf Registration Statement
(as defined in the Indenture) with respect to resale of this Security is not
declared effective on or prior to the date that is 150 days after the Closing
Date (each such event referred to in clauses (i) through (iii), a "REGISTRATION
DEFAULT"), then the Company will pay additional interest (in addition to the
interest otherwise due hereon) ("ADDITIONAL INTEREST") to the holder during the
first 90-day period immediately following the occurrence of each such
Registration Default in an amount equal to 0.25% per annum. The amount of
interest will increase by an additional 0.25% per annum for each subsequent 90-
day period until such Registration Default is cured, up to a maximum amount of
additional interest of 1.00% per annum. Such additional interest will cease
accruing with respect to any Registration Default when such Registration Default
has been cured. The Company shall pay amounts due in respect of Additional
Interest on each Interest Payment Date (or, if the Company shall default in the
payment of interest on any Interest
4
Payment Date, on the date such interest is otherwise paid as provided in the
Indenture).]/2/
[There shall also be payable in respect of this Security all Additional
Interest that may have accrued on the Security for which this Security was
exchanged (as defined in such Security) pursuant to the Exchange Offer, such
Additional Interest to be calculated in accordance with the terms of such
Security and payable at the same time and in the same manner as periodic
interest on this Security.]/3/
The Securities are unconditionally and irrevocably guaranteed as to the due
and punctual payment of the principal, premium, if any, and interest and all
other amounts payable in respect thereof by the Guarantor as evidenced by the
guarantee (the "GUARANTEE") set forth hereon.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all the Securities may be declared
due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the holders of a
majority in aggregate principal amount of the Securities then outstanding and
that, prior to any such declaration, such holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of, premium, if any, or interest on any of the Securities. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and any Security which may be issued
in exchange or substitution herefor, whether or not any notation thereof is made
upon this Security or such other Securities.
The Indenture permits the Company and the Trustee, with the consent of the
holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holders of the
Securities; provided that without the consent of each holder affected, no such
supplemental indenture shall (i) reduce the principal amount of Securities whose
holders must consent to an amendment, supplement or waiver, (ii) reduce the
principal of or change the fixed maturity of any Security or alter the
provisions with respect to the redemption of the Securities (other
_________________________
/2/To be included in Securities not Exchange Securities.
/3/To be included in Exchange Securities.
5
than provisions relating to the covenants described in Sections 310 and 317 in
the Indenture), (iii) reduce the rate of or change the time for payment of
interest on any Security, (iv) waive a Default or Event of Default in the
payment of principal of, premium, if any, or interest on, the Securities (except
a rescission of acceleration of the Securities by the holders of at least a
majority in aggregate principal amount thereof and a waiver of the payment
default that resulted from such acceleration), (v) make any Security payable in
money other than that stated in the Securities, (vi) make any change in the
provisions of the Indenture relating to waivers of past Defaults or the rights
of holders of Securities to receive payments of principal of, premium, if any,
or interest on the Securities, (vii) waive a redemption payment with respect to
any Security (other than a payment required by one of the covenants described in
Sections 310 and 317 in the Indenture), (viii) modify the ranking or priority of
the Securities or modify the definition of Senior Debt or Designated Senior Debt
or amend or modify the subordination provisions of the Indenture in any manner
adverse to the holders or (ix) make any change in the foregoing amendment and
waiver provisions.
Notwithstanding the foregoing, without the consent of any holder of
Securities, the Company, the Guarantor and the Trustee may amend or supplement
the Indenture or the Securities (including the Guarantee) to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Securities in addition to
or in place of certificated Securities, to provide for the assumption of the
Company's or the Guarantor's obligations to holders of Securities in the case of
a transaction described in Section 801, to make any change that would provide
any additional rights or benefits to the holders of Securities or that does not
adversely affect the legal rights under the Indenture of any such holder, or to
comply with requirements of the Commission (as defined in the Indenture) in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act (as defined in the Indenture).
No reference herein to the Indenture and no provision of this Security or
the Guarantee or of the Indenture shall alter or impair the obligation of the
Company and of the Guarantor, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security and the Guarantee
at the place, times, and rate, and in the currency, herein prescribed.
The Securities are issuable only as registered Securities without coupons
in denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Company referred to on the face hereof and
in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations.
6
Upon due presentment for registration of transfer of this Security at the
above-mentioned office or agency of the Company, a new Security or Securities of
authorized denominations, for a like aggregate principal amount, will be issued
to the transferee as provided in the Indenture. No service charge shall be made
for any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Securities may be redeemed at the option of the Company as a whole, or
from time to time in part, on any date on or after May 1, 2002, upon mailing a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to the holders of Securities to be redeemed, all as
provided in the Indenture, at the following redemption prices (expressed in
percentages of the principal amount) together in each case with accrued interest
to the date fixed for redemption:
If redeemed during the twelve-month period beginning May 1,
Year Percentage
2002.................................... 104.9375%
2003.................................... 102.4688%
2004 and thereafter..................... 100.0000%
provided that if the date fixed for redemption is an Interest Payment Date, then
the interest payable on such date shall be paid to the holder of record on the
next preceding Interest Record Date.
Subject to payment by the Company or the Guarantor of a sum sufficient to
pay the amount due on redemption, interest on this Security (or portion hereof
if this Security is redeemed in part) shall cease to accrue upon the date duly
fixed for redemption of this Security (or portion hereof if this Security is
redeemed in part).
Upon a Change of Control (as defined in the Indenture), any holder of
Securities will have the right to cause the Company to purchase the Securities
of such holder, in whole or in part in integral multiples of aggregate principal
amount of $1,000, at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to any Change of
Control Payment Date, as provided in, and subject to the terms of the Indenture.
All amounts owed under and in respect of this Security (including the
Guarantee) are subordinated in right of payment, to the extent and in the manner
provided in Article 9 of the Indenture, to the prior payment in full in cash of
all amounts owed under and in respect of all Senior Debt, and the subordination
of the
7
Securities and the Guarantee is for the benefit of all holders of all Senior
Debt, whether outstanding on the Closing Date or incurred thereafter. The
Company and the Guarantor agree, and each holder by accepting a Security
(including the Guarantee) agree, to the subordination.
The Company, the Guarantor, the Trustee, and any authorized agent of the
Company, the Guarantor or the Trustee, may deem and treat the registered holder
hereof as the absolute owner of this Security (whether or not this Security
shall be overdue and notwithstanding any notation of ownership or other writing
hereon made by anyone other than the Company, the Guarantor or the Trustee or
any authorized agent of the Company, the Guarantor or the Trustee), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and, subject to the provisions on the face hereof, interest
hereon and for all other purposes, and none of the Company, the Guarantor, the
Trustee nor any authorized agent of the Company, the Guarantor or the Trustee
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Security, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or the Guarantor or
of any successor corporation, either directly or through the Company or the
Guarantor or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture is hereby incorporated by the reference and to the extent of
any variance between the provisions hereof and the Indenture, the Indenture
shall control.
This Security (including the Guarantee) shall be deemed to be a contract
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State, except as may otherwise be required
by mandatory provisions of law.
8
GUARANTEE
Vencor, Inc. (the "GUARANTOR") hereby irrevocably and unconditionally
guarantees to the holder of this Security upon which the Guarantee is endorsed
and to the Trustee on behalf of each Securityholder the due and punctual payment
of principal of, premium, if any and interest on, and all other amounts payable
under, each Security provided for pursuant to the Indenture and the terms of
such Security when and as the same shall become due and payable, whether at the
stated maturity, upon acceleration, by call for redemption, upon repurchase or
purchase following a Change of Control Offer (as defined in the Indenture) or an
Asset Sale Offer (as defined in the Indenture) or otherwise, in accordance with
the terms of such Security and of the Indenture. The Guarantor hereby expressly
waives (i) any right to which it may be entitled to require the Trustee or any
Securityholder to pursue or exhaust their respective legal or equitable remedies
against the Company prior to exercising their respective rights under the
Guarantee of the Guarantor and (ii) any right to which it may be entitled to
have the assets of the Company first be used as payment of the Company's or the
Guarantor's obligations prior to any amounts being claimed from or paid by the
Guarantor hereunder. The Guarantor will not be discharged with respect to any
Security except by payment in full of the principal thereof, premium, if any,
and interest thereon and all other amounts payable thereunder. In case of the
failure of the Company punctually to pay any such principal or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at the stated maturity, upon
acceleration, by call for redemption upon repurchase or purchase following a
Change of Control Offer or an Asset Sale Offer or otherwise, and as if such
payment were made by the Company.
If at any time payment of principal of and interest on this Security is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated as of the date of
such rescission, restoration or return as though such payment had become due,
but had not been made at such time.
The obligations of the Guarantor to the holder of this Security and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Security upon which the Guarantee is
endorsed shall have been executed by the Trustee acting under the Indenture by
the manual signature of one of its authorized officers.
9
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed under its corporate seal.
Dated:
VENCOR, INC.
By: _________________________________
Name:
Title:
10
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: ______________________________
This is one of the Securities described in the within-mentioned
Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Authorized Signatory
11
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________ attorney to transfer said Security on the
books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
PERMANENT OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
two years after the later of the original issuance of this Security or the last
date on which this Security was held by the Company, the Guarantor or an
Affiliate of the Company or the Guarantor, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
12
[Check One]
[_](a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
or
[_](b) this Security 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 Security and the
Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 208 of the Indenture shall have
been satisfied.
Date: _____________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within-mentioned instrument
in every particular, without alteration or
any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "QUALIFIED
INSTITUTIONAL BUYER" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ___________ _____________________________________________
NOTICE: To be executed by an executive
officer
13
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 310 or Section 317 of the Indenture, check the Box: [_]
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 310 or Section 317 of the Indenture, state the amount:
maturity):
$_______________.
Date: _______________
Your Signature: ______________________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee: _________________________
14
AND WHEREAS, all things necessary to make the Securities and the Guarantee,
when executed by the Company and the Guarantor and authenticated and delivered
by the Trustee as in the Indenture provided, the valid, binding and legal
obligations of the Company and the Guarantor, as the case may be, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities and
the Guarantee by the Holders thereof, the Company, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE 1
Definitions
Section 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with GAAP
(whether or not such is indicated herein). The words "HEREIN", "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
15
"ACQUIRED SUBSIDIARY DEBT" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
except to the extent such Indebtedness was incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person, except to the
extent such Lien was created or incurred in connection with, or in contemplation
of, such acquisition.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"AFFILIATE TRANSACTION" has the meaning provided in Section 315.
"AGENT MEMBERS" has the meaning provided in Section 207.
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition of
any assets (including, without limitation, by way of a sale and leaseback);
provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company or of the Guarantor will be
governed by Section 317 and/or Article 8 and not by the provisions of Section
310, and (ii) the issuance or sale by the Guarantor or any of its Restricted
Subsidiaries of Equity Interests of any of the Guarantor's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $15 million or (b) for net proceeds in excess of $15 million.
Notwithstanding the foregoing: (a) a transfer of assets by the Guarantor to a
Restricted Subsidiary or by a Restricted Subsidiary to the Guarantor or to
another Restricted Subsidiary, (b) an issuance of Equity Interests by a
Restricted Subsidiary to the Guarantor or to another Restricted Subsidiary, (c)
sales of assets of Behavioral Healthcare Corp., (d) sales of Development
Properties consummated in accordance with the terms set forth in the Development
Agreement and (e) transfers or dispositions of assets in accordance with the
Licensing Arrangements, in each case, will not be deemed to be an Asset Sale.
"ASSET SALE OFFER PRICE" has the meaning provided in Section 310.
16
"ATRIA" means Atria Communities, Inc., a Delaware corporation, and its
successors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means, at any time, (i) any evidence of Indebtedness
with a maturity of 180 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof), (ii) repurchase obligations for investments of the
type described in clause (i) for which delivery of the investment is made
against payment, (iii) demand or time deposits, bankers' acceptances 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
$300,000,000, and (iv) commercial paper with a maturity of 180 days or less
issued by a corporation (except any Affiliate of the Guarantor or Subsidiary of
the Guarantor) organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P and at least P-1 by Xxxxx'x.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition, in one or a series of
related transactions, of all or substantially all of the assets of the Company
or of the Guarantor to any Person or group (as such term is used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act), (ii) the acquisition by any Person
or group (as defined above) of a direct or indirect interest in more than 50% of
the voting power of the voting stock of the Company or of the Guarantor, by way
of merger or consolidation or otherwise, or (iii) the first day on which a
majority of the members of the Board
17
of Directors of the Company or the Guarantor are not Continuing Directors;
provided that a merger or consolidation of the Company with or into the
-------- ----
Guarantor shall not be deemed a Change of Control.
"CLOSING DATE" means April 30, 1998.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act.
"COMPANY CREDIT AGREEMENT" means that certain Credit Agreement, dated as of
April 29, 1998, by and among the Company, the Guarantor, Xxxxxx Guaranty Trust
Company of New York, as Documentation Agent and Collateral Agent, NationsBank
N.A., as Administrative Agent, the lenders party thereto, the Swingline Bank
party thereto, the LC Issuing Bank party thereto and the Senior Managing Agents,
Managing Agents and Co-Agents party thereto, including any related notes,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as further amended, modified, extended, renewed,
refunded, replaced or refinanced in whole or in part, from time to time
(including amendments, modifications, extensions, renewals, refundings,
replacements or refinancings which increase the principal amount of Indebtedness
permitted thereunder; provided that any such increase will not increase the
amount of Indebtedness which may be incurred at the time of such increase
pursuant to clause (i) of Section 309).
"CONSOLIDATED EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus (i) an amount equal
to any extraordinary loss plus any net loss realized in connection with an asset
sale (to the extent such losses were deducted in computing such Consolidated Net
Income), plus (ii) any non-cash charges (to the extent such charges were
deducted in computing such Consolidated Net Income), except for any non-cash
charges that represent accruals of, or reserves for, cash disbursements to be
made in any future accounting period, plus (iii) provision for taxes based on
income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent such provision for taxes was included in computing such
Consolidated Net Income, plus (iv) the Fixed Charges of such Person and its
Restricted Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income, plus (v) depreciation
and amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation and amortization were deducted in computing such
Consolidated Net Income, in each case, on a consolidated basis and determined in
accordance with GAAP. Notwithstanding the foregoing, the amounts referred to in
clauses (i) through (v) above as they relate to a Restricted Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute
Consolidated
18
EBITDA only to the extent (and in same proportion) that the Net Income of such
Restricted Subsidiary was included in calculating the Consolidated Net Income of
such Person and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company or the Guarantor by such
Restricted Subsidiary or by a Restricted Subsidiary which is the parent of 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 that
Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Restricted Subsidiary thereof, (ii) the Net
Income of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted to
be dividended to the Company or the Guarantor by such Restricted Subsidiary or
by a Restricted Subsidiary which is the parent of such Restricted Subsidiary
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, (iii)
solely for the purpose of calculating the amount of Restricted Payments that may
be made pursuant to clause (c) of Section 308, the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded and (iv) the cumulative effect of a change
in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Restricted Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock), less
all write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made in accordance
with GAAP as a result of the acquisition of such business) subsequent to the
date of the Indenture in the book value of any asset owned by such Person or a
consolidated Restricted Subsidiary of such Person, and excluding the cumulative
effect of a change in accounting principles, all as determined in accordance
with GAAP.
19
"CONTINUING DIRECTOR" means, as of any date of determination, any member of
the Board of Directors of the Company or the Guarantor who (i) was a member of
such Board of Directors on the date of the Indenture, (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) was nominated for election or elected to such
Board of Directors by the Guarantor.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 X. Xxxxxxxxx Xx., Xxxxxxxxxx, Xxxxxxxx 00000.
"DEFAULT" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees, and their
respective successors.
"DESIGNATED SENIOR DEBT" means (i) so long as the Company Credit Agreement
is outstanding, all Indebtedness under the Company Credit Agreement and (ii)
thereafter, any other Senior Debt permitted under the Indenture the principal
amount of which is $25 million or more and that has been designated by the
Company or the Guarantor as "Designated Senior Debt".
"DEVELOPMENT AGREEMENT" means the development agreement relating to the
Development Properties identified in the Proxy Statement.
"DEVELOPMENT PROPERTIES" means the properties under development or proposed
to be developed by the Guarantor or its Subsidiaries and that will, at the
option of Ventas, Inc., be sold to Ventas, Inc. or any of its subsidiaries upon
completion of the development thereof and leased back from Ventas, Inc. or such
subsidiary by the Guarantor or its Subsidiaries, all as described in the Proxy
Statement.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
on which the Securities mature.
20
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 401 which shall have continued for the period of time, if any, therein
designated.
"EXCESS PROCEEDS" has the meaning provided in Section 310.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OFFER" means the exchange offer by the Company and the Guarantor
of Exchange Securities for Securities pursuant to the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a registration statement
relating to an Exchange Offer on an appropriate form and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"EXCHANGE SECURITIES" means any securities of the Company to be offered to
Securityholders in exchange for Securities pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Exchange Securities containing terms
identical to the Securities (which Exchange Securities will be Guaranteed by the
Guarantor pursuant to a guarantee containing terms identical to the Guarantee)
for which they are exchanged (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Securities or, if no such
interest has been paid, from the date of issuance of the Securities and (ii) the
Exchange Securities will contain the alternative third paragraph appearing on
the reverse of the Securities in the form recited above and will not contain
terms with respect to transfer restrictions).
"EXISTING AFFILIATE AGREEMENTS" means the agreements listed in Schedule 6
to the Company Credit Agreement on the date of the Indenture.
"EXISTING INDEBTEDNESS" means Indebtedness of the Guarantor and its
Restricted Subsidiaries (other than Indebtedness under the Company Credit
Agreement) in existence on the date of the Indenture, until such amounts are
repaid, including all reimbursement obligations with respect to letters of
credit outstanding as of the date of the Indenture (other than letters of credit
issued pursuant to the Company Credit Agreement).
21
"EXISTING PREFERRED STOCK" means the Series A Convertible Preferred Stock
of the Guarantor with an aggregate liquidation preference of $17.7 million to be
issued in connection with the Reorganization Transactions.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person for any
period, the ratio of (i) the sum of (x) the Consolidated EBITDA of such Person
for such period and (y) one-third of all rental expense of such Person and its
Restricted Subsidiaries for such period attributable to operating leases with an
initial term, including any renewals at the option of either party, in excess of
one year, to (ii) the Fixed Charges of such Person for such period. In the event
that the Guarantor or any of its Restricted Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues preferred stock subsequent to the commencement of the four-quarter
reference period for which the Fixed Charge Coverage Ratio is being calculated
but on or prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Guarantor or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four quarter reference period and (ii) the
Consolidated EBITDA, rental expense and Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded.
"FIXED CHARGES" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letters
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period
and (iii) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all cash
dividend payments (and non-cash dividend payments in the case of a Person that
22
is a Restricted Subsidiary) on any series of preferred stock of such Person,
times (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 such Person, expressed as a decimal and (v) one-third of all rental
expense of such Person and its Restricted Subsidiaries for such period
attributable to operating leases with an initial term, including any renewals at
the option of either party, in excess of one year, in each case, on a
consolidated basis and in accordance with GAAP.
"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 entities as have been approved by a significant segment of the accounting
profession, as in effect from time to time.
"GLOBAL SECURITIES" has the meaning provided in Section 204.
"GOVERNMENT SECURITIES" means direct 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.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEALTHCARE FACILITY" means (i) a hospital, outpatient clinic, nursing
center, assisted or independent living community, long-term care facility or any
other facility that is used or useful in the provision of healthcare or
custodial care services, (ii) any healthcare business affiliated or associated
with a Healthcare Facility or (iii) any business related or ancillary to the
provision of healthcare services or the operation of a Healthcare Facility,
including, but not limited to, contract therapy services such as rehabilitation,
respiratory, speech and occupational therapy services, as well as hospice and
home care services.
"HEALTHCARE FACILITY SWAP" means an exchange of assets by the Company, the
Guarantor or a Restricted Subsidiary of the Guarantor for one or more Healthcare
Facilities or for the Capital Stock of any Person owning one or more Healthcare
Facilities.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) foreign exchange contracts
or currency swap
23
agreements and (iii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency values.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar terms
means the registered holder of any Security.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person.
"INDENTURE" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to any Person,
(i) any insolvency or bankruptcy or similar case or proceeding, or any
reorganization, receivership, liquidation, dissolution or winding up of such
Person, whether voluntary or involuntary, or (ii) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of such Person.
"INTEREST PAYMENT DATE" means each semiannual interest payment date on May
1 and November 1 of each year, commencing November 1, 1998.
"INTEREST RECORD DATE" for the Interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the April 15 or
October 15 (whether or not a Business Day) as the case may be, next preceding
such Interest Payment Date.
"INVESTMENT GRADE RATED" means, with respect to the Securities, both a
rating of the Securities by S&P of BBB- or higher and a rating of the Securities
by Moody's of Baa3 or higher.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans
24
(including Guarantees of Indebtedness or other obligations), advances or capital
contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP. For purposes of the definition of "Unrestricted Subsidiary" and
Section 308, (i) "Investment" shall include the fair market value of the assets
(net of liabilities) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary and shall exclude
the fair market value of the assets (net of liabilities) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) any property transferred to or from any Person
shall be valued at its fair market value at the time of such transfer, in each
case as determined in good faith by the Board of Directors of the Guarantor.
"ISSUE DATE" means the original issue date of the Securities.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge, charge or
security interest).
"LICENSING ARRANGEMENTS" means the licensing arrangements for the
properties listed in Schedule 3 to the Company Credit Agreement.
"MASTER LEASE AGREEMENTS" means the master lease agreements that set forth
the material terms governing the lease of certain properties owned by Ventas,
Inc. to the Guarantor and its Subsidiaries substantially as described in the
Proxy Statement.
"MOODY'S" means Xxxxx'x Investors Services, Inc. and its successors.
"NET INCOME" means, with respect to any Person for any period, the net
income (loss) of such Person for such period, determined in accordance with
GAAP, excluding, however, (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with (a)
any Asset Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions) or (b) the disposition of any securities by such Person
or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness
of such Person or any of its Restricted Subsidiaries and (ii) any extraordinary
or nonrecurring gain (but
25
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Guarantor
or any of its Restricted Subsidiaries in respect of any Asset Sale, net of the
direct costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions) and any other
expenses incurred or to be incurred by the Guarantor or a Restricted Subsidiary
as a direct result of the sale of such assets (including, without limitation,
severance, relocation, lease termination and other similar expenses), taxes
actually paid or payable as a result thereof, payments made to retire
Indebtedness where payment of such Indebtedness is required in connection with
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"NON-RECOURSE DEBT" means Indebtedness of a Subsidiary (i) as to which
neither the Guarantor nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness of the Guarantor or any of its Restricted
Subsidiaries), or (b) is directly or indirectly liable (as a guarantor or
otherwise) and (ii) no default with respect to which would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness of the Guarantor or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"NON-U.S. PERSON" means a person who is not a U.S. person, as defined in
Regulation S.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "Vice President") of the Company or the Guarantor and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 1305.
"OFFSHORE GLOBAL SECURITIES" has the meaning provided in Section 204.
"OFFSHORE PHYSICAL SECURITIES" means Securities issued pursuant to Section
201 in exchange for interests in the Offshore Global Security following the
26
Offshore Securities Exchange Date or pursuant to Section 207, in each case in
registered form substantially in the form hereinabove recited.
"OFFSHORE SECURITIES EXCHANGE DATE" has the meaning provided in Section
204.
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Company or the Guarantor or who may
be other counsel satisfactory to the Trustee. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements provided
for in Section 1305, and such others as may reasonably be requested by the
Trustee, if and to the extent required hereby.
"OUTSTANDING", when used with reference to Securities, subject to the
provisions of Article 12, means, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company or the
Guarantor) or shall have been set aside, segregated and held in trust by
the Company (if the Company shall act as its own paying agent), provided
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 209 (unless proof satisfactory to the Trustee and
the Company is presented that any of such Securities is held by a person in
whose hands such Security is a legal, valid and binding obligation of the
Company).
"PAYMENT DEFAULT" means any failure to pay any scheduled installment of
principal of, premium, if any, or interest on any Indebtedness within the grace
period provided for such payment in the documentation governing such
Indebtedness.
"PERMANENT OFFSHORE GLOBAL SECURITY" has the meaning provided in Section
204.
27
"PERMITTED LIENS" means (i) Liens securing Senior Debt under the Company
Credit Agreement or Guarantees thereof; (ii) Liens in favor of the Company or
the Guarantor; (iii) Liens on assets of a Person existing at the time such
Person is merged into or consolidated with the Guarantor or any Restricted
Subsidiary of the Guarantor or becomes a Restricted Subsidiary of the Guarantor;
provided that such Liens were in existence prior to the contemplation of such
merger, consolidation or acquisition and do not extend to any assets other than
those of the Person merged into or consolidated with the Guarantor or that
becomes a Restricted Subsidiary of the Guarantor; (iv) Liens on property
existing at the time of acquisition thereof by the Guarantor or any Restricted
Subsidiary of the Guarantor, provided that such Liens were in existence prior to
the contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the date of the Indenture; (vii) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens on any asset securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or constructing
such asset, provided that such Lien attaches to such asset concurrently with or
within 180 days after the acquisition or completion of construction thereof and
attaches to no asset other than such asset so financed; (ix) Liens arising in
the ordinary course of business which (a) do not secure Indebtedness, (b) do not
secure any single obligation (or series of related obligations) in an amount
exceeding $5 million, provided that the limitation in this clause (b) shall not
apply to Liens securing worker's compensation, unemployment insurance and other
types of social security, and (c) do not in the aggregate materially detract
from the value of the assets of the Guarantor and its Restricted Subsidiaries,
taken as a whole, or materially impair the use thereof in the operation of their
business; (x) Liens on cash (not exceeding $20 million in aggregate amount) of
Cornerstone Insurance Company to secure its reimbursement obligations under
letters of credit issued for its account; (xi) other Liens or title defects
(including matters which an accurate survey might disclose) which (a) do not
secure Indebtedness and (b) do not materially detract from the value of real
property or materially impair the use thereof by the Guarantor or any of its
Restricted Subsidiaries in the operation of its business; (xii) Liens securing
Hedging Obligations permitted by clause (vi) of the covenant described in
Section 309; (xiii) other Liens on assets of the Guarantor or any Restricted
Subsidiary of the Guarantor securing Indebtedness that is permitted by the terms
of the Indenture to be outstanding having an aggregate principal amount at any
one time outstanding not to exceed 5% of the Stockholders' Equity of the
Guarantor; and (xiv) Liens to secure Permitted Refinancing Indebtedness incurred
to refinance Indebtedness that was secured by a Lien permitted under the
Indenture and that was incurred in accordance with the provisions of the
Indenture; provided that such Liens
28
do not extend to or cover any property or assets of the Guarantor or any
Restricted Subsidiary other than assets or property securing the Indebtedness so
refinanced.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Guarantor or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used solely to extend, refinance, renew, replace,
defease or refund, other Indebtedness of the Guarantor or any of its Restricted
Subsidiaries (other than Indebtedness constituting revolving credit loans under
the Company Credit Agreement permitted to be incurred under clause (i) of the
second paragraph of Section 309); provided that (i) the principal amount of such
Permitted Refinancing Indebtedness does not exceed the principal amount of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of any premiums paid and reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Securities, such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Securities on terms at least as favorable to the Holders of
Securities as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness is incurred either by the Guarantor or by the Restricted
Subsidiary which is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PERSON" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"POST-PETITION INTEREST" means, with respect to any Indebtedness of any
Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the rate specified in such Indebtedness, whether or not
such interest is an allowed claim enforceable against such Person in a
bankruptcy case under Title 11 of the United States Code.
"PRINCIPAL" wherever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "AND PREMIUM, IF ANY".
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Securities in the form set forth in Section 205.(a)
29
"PROXY STATEMENT" means the Proxy Statement dated March 25, 1998 and
distributed by Vencor, Inc. (the predecessor company to the Guarantor) to its
stockholders.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED EQUITY INTERESTS" means all Equity Interests of the Guarantor
other than Disqualified Stock of the Guarantor.
"REGISTRAR" has the meaning provided in Section 206.
"REGISTRATION" means a registered exchange offer for the Securities by the
Company and the Guarantor or other registration of the Securities under the
Securities Act pursuant to and in accordance with the terms of the Registration
Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of April 27, 1998, among the Company, the Guarantor and the Initial
Purchasers and certain permitted assigns specified therein.
"REGISTRATION STATEMENT" means the Registration Statement pursuant to and
as defined in the Registration Rights Agreement.
"REGULATION S" means Regulation S under the Securities Act.
"REORGANIZATION AGREEMENTS" means the agreements listed in Schedule 2 to
the Company Credit Agreement on the date of the Indenture.
"REORGANIZATION SECURITIES" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company or the Guarantor, Capital Stock or
any other securities of the Company or the Guarantor as reorganized or
readjusted (or Capital Stock or any other securities of any other Person
provided for by a plan of reorganization or readjustment) that are subordinated,
at least to the same extent as the Securities, to the payment of all outstanding
Senior Debt after giving effect to such plan of reorganization or readjustment;
provided, however, that (i) the Securities shall not be treated in any case or
proceeding or other event described above as part of the same class of claims as
the Senior Debt or any class of claim on a parity with or senior to the Senior
Debt for any payment or distribution, (ii) such securities are subordinated at
least to the same extent as the Securities to Senior Debt of the Company and the
Guarantor and any securities issued in exchange for such Senior Debt and (iii)
such securities are authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy,
insolvency or similar law which gives effect to the subordination of the
30
Securities to Senior Debt in a manner and with an effect which would be required
if this proviso were not included in this paragraph; provided further that the
Senior Debt is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment and issuing such securities.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), any trust officer, any assistant trust officer, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means any Investment by the Guarantor or any
Restricted Subsidiary in any Person other than (i) an Investment in the
Guarantor or a Restricted Subsidiary or in any Person that, as a result of such
Investment, becomes a Restricted Subsidiary or will be merged or consolidated
with or into or will transfer or convey all or substantially all of its assets
to, the Guarantor or a Restricted Subsidiary, (ii) with respect to Restricted
Subsidiaries that are insurance companies, an investment permitted by applicable
insurance laws, (iii) an Investment in any person that engages primarily in the
ownership, operation or management of Healthcare Facilities or is a supplier to
Healthcare Facilities, (iv) Temporary Cash Investments and (v) loans to certain
individuals in connection with their purchase of Existing Preferred Stock on the
Issue Date.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Guarantor other than an
Unrestricted Subsidiary and any Subsidiary of an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-
Xxxx Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY" or "SECURITIES" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture. For all purposes of
this Indenture, the term "Securities" shall include any Exchange Securities to
be issued and exchanged for any Securities pursuant to the Registration Rights
Agreement and this Indenture and, for purposes of this Indenture, all Securities
and Exchange Securities shall vote together as one series of Securities under
this Indenture.
31
"SECURITY REGISTER" has the meaning provided in Section 206.
"SENIOR DEBT" means (i) all Indebtedness of the Company and the Guarantor
under the Company Credit Agreement, including principal of, premium, if any, and
interest on such Indebtedness and all other amounts due on or in connection with
such Indebtedness including all charges, fees and expenses, (ii) all other
Indebtedness of the Company and the Guarantor, including principal of, premium,
if any, and interest on such Indebtedness, unless the instrument under which
such Indebtedness is created, incurred, assumed or Guaranteed expressly provides
that such Indebtedness is not senior or superior in right of payment to the
Securities and the Guarantee, and all renewals, extensions modifications,
amendments or refinancings thereof and (iii) all interest on any Indebtedness
referred to in clause (i) and (ii) accruing during the pendency of any
bankruptcy or insolvency proceeding whether or not allowed thereunder.
Notwithstanding the foregoing, Senior Debt shall not include (a) Subordinated
Debt of Company or the Guarantor; provided, however, that no Indebtedness shall
be deemed to be Subordinated Debt of the Company or the Guarantor solely by
reason of such other Indebtedness being secured and such Indebtedness not being
secured, (b) the Securities, (c) the Guarantee, (d) any Indebtedness of the
Company to any of its Restricted Subsidiaries, (e) any Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Code, is without recourse to the Company or the Guarantor, (f) any
Indebtedness of the Company or the Guarantor, to the extent not permitted by
Section 309, (g) any 8 5/8% Senior Subordinated Notes due 2007 of Predecessor
Company assumed by the Guarantor in connection with the Reorganization
Transactions, (h) any Indebtedness to any employee of the Guarantor or any of
its Restricted Subsidiaries, (i) any liability for taxes owed or owing by the
Company or the Guarantor and (j) Trade Payables.
"SHELF REGISTRATION STATEMENT" means a Shelf Registration Statement of the
Company pursuant to and as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Subsidiary that, together with its Subsidiaries, (i) accounted for more than 10%
of the consolidated revenues of the Guarantor and its consolidated Subsidiaries
or (ii) was the owner of more than 10% of the consolidated assets of the
Guarantor and its consolidated Subsidiaries, all as set forth on the most
recently available audited financial statements of the Guarantor.
"STOCKHOLDERS' EQUITY" means, with respect to any Person as of any date,
the stockholders' equity of such Person determined in accordance with GAAP as of
the date of the most recent available internal financial statements of such
Person, and calculated on a pro forma basis to give effect to any acquisition or
disposition by
32
such Person consummated or to be consummated since the date of such financial
statements and on or prior to the date of such calculation.
"SUBORDINATED DEBT" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter incurred) which is by its terms
expressly subordinate or junior in right of payment to the Securities and any
Guarantee or Indebtedness of the Guarantor (whether outstanding on the Issue
Date or thereafter incurred) which is by its terms expressly subordinate or
junior in right of payment to the Guarantee.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is 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 (ii) 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 one or more Subsidiaries
of such Person (or any combination thereof). Unrestricted Subsidiaries shall not
be included in the definition of Subsidiary for any purposes of the Indenture
(except, as the context may otherwise require, for purposes of the definition of
"Unrestricted Subsidiary").
"TEMPORARY CASH INVESTMENT" means any of the following: (i) securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof; provided that the full faith
and credit of the United States of America is pledged in support thereof, (ii)
time deposit accounts, bankers' acceptances, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by any office located in the United States of America of a bank or trust
company which is organized or licensed under the laws of the United States of
America or any state thereof and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million and has
outstanding debt which is rated "P-1" (or higher) by Moody's or "A-1" (or
higher) by S&P or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with an office located in the United States of America of a
bank or trust company meeting the qualifications described in clause (ii) above,
(iv) commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than Ventas, Inc. or any of its
Affiliates or an Affiliate of the Company or the Guarantor) organized under the
laws of the United States of America or any state thereof with a rating, at the
date of acquisition, of "P-1" (or higher) by Moody's or "A-1" (or higher) by
S&P, (v) securities with maturities of six
33
months or less from the date of acquisition issued or fully and unconditionally
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "P-1" (or higher) by Moody's or "A-1" (or higher) by S&P and (vi) money
market funds which invest substantially all of their assets in securities
described in the preceding clauses (i) through (v).
"TEMPORARY OFFSHORE GLOBAL SECURITY" has the meaning provided in Section
204.
"TRADE PAYABLES" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was originally
executed, and "TIA", when used in respect of an indenture supplemental hereto,
means such Act as in force at the time such indenture supplemental hereto
becomes effective.
"TRUSTEE" means the entity identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Five, shall also include any
successor trustee.
"U.S. GLOBAL SECURITY" has the meaning provided in Section 204.
"U.S. PERSON" has the meaning provided in Regulation S.
"U.S. PHYSICAL SECURITIES" means Securities issued in the form of permanent
certificated Securities in registered form in substantially the form hereinabove
recited.
"UNRESTRICTED SUBSIDIARY" means any other Subsidiary that is designated by
the Board of Directors of the Guarantor as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary (i) has no
Indebtedness other than Non-Recourse Debt, (ii) is not party to any agreement,
contract, arrangement or understanding with the Guarantor or any Restricted
Subsidiary of the Guarantor unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Guarantor or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Guarantor, (iii) is a Person with respect to which
neither the Guarantor nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial
34
condition or to cause such Person to achieve any specified levels of operating
results and (iv) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Guarantor or any of its Restricted
Subsidiaries.
Notwithstanding the foregoing, an Unrestricted Subsidiary shall not cease
to qualify as an Unrestricted Subsidiary if the Company or the Guarantor
Guarantees Indebtedness of such Unrestricted Subsidiary and such Guarantee is a
Restricted Investment which is permitted by the provisions in Section 308.
Any such designation by the Board of Directors of the Guarantor shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing conditions and was
permitted under the covenant described in Section 308. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Guarantor as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under this Indenture, the Company and the Guarantor
shall be in Default under this Indenture). The Board of Directors of the
Guarantor may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Guarantor of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under the
Indenture, and (ii) no Default or Event of Default would be in existence
following such designation.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) 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 (ii) the then outstanding principal
amount of such Indebtedness.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law".............................. 4.01
"Change of Control Offer"..................... 3.17
"Change of Control Payment"................... 3.17
"Change of Control Payment Date".............. 3.17
35
Defined in
Term Section
---- -------
"Commencement Date"........................... 3.10
"Covenant Defeasance"......................... 12.03
"Custodian"................................... 4.01
"incur"....................................... 3.09
"Legal Defeasance"............................ 12.02
"Offer Amount"................................ 3.10
"Offer Period"................................ 3.10
"Purchase Date"............................... 3.10
"Restricted Payments"......................... 3.08
ARTICLE 2
Issue, Execution, Form and Registration of Securities
Section 2.01. Authentication and Delivery of Securities. Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities (including Exchange Securities) in an aggregate principal amount not
in excess of the amount specified in the form of Security hereinabove recited
(except as otherwise provided in Section 209) may be executed by the Company,
with the Guarantee endorsed thereon, and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery said Securities to or upon the written order of the Company, signed
by its Chairman of the Board of Directors, or any Vice Chairman of the Board of
Directors, or its President or any Vice President (whether or not designated by
a number or numbers or a word or words added before or after the title "Vice
President") without any further action by the Company.
Section 2.02. Execution of Securities and Guarantee. The Securities and
the Guarantee shall be signed on behalf of the Company and Guarantor by their
respective Chairman of the Board of Directors or any Vice Chairman of the Board
of Directors or their respective President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "Vice President"). Such signatures may be the manual or facsimile
signatures of the present or any future such officers.
In case any officer of the Company or the Guarantor who shall have signed
any of the Securities or the related Guarantee shall cease to be such officer
before the Security or such Guarantee so signed shall be authenticated and
delivered by the Trustee or disposed of by the Company or the Guarantor, such
Security or Guarantee nevertheless may be authenticated and delivered or
disposed of as though the person
36
who signed such Security or Guarantee had not ceased to be such officer of the
Company or the Guarantor, as the case may be; and any Security or Guarantee may
be signed on behalf of the Company or the Guarantor by such persons as, at the
actual date of the execution of such Security or Guarantee shall be the proper
officers of the Company or the Guarantor, as the case may be, although at the
date of the execution and delivery of this Indenture any such person was not
such officer.
Section 2.03. Certificate of Authentication. Only such Securities
(including the Guarantee) as shall bear thereon a certificate of authentication
substantially in the form hereinabove recited, executed by the Trustee by manual
signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security (including the Guarantee) executed
by the Company and the Guarantor shall be conclusive evidence that the Security
(including the Guarantee) so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
Section 2.04. Form, Denomination and Date of Securities; Payments of
Interest. The Securities, including the notations thereon relating to the
Guarantee, and the Trustee's certificates of authentication shall be
substantially in the form recited above; provided that Exchange Securities (i)
shall contain the alternative third paragraph appearing on the reverse of the
Securities in the form recited above and (ii shall not contain terms with
respect to transfer restrictions. The Securities shall be issuable in
denominations provided for in the form of Security recited above. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Company executing the same may
determine with the approval of the Trustee.
Any of the Securities (including the Guarantee) may be issued with
appropriate insertions, omissions, substitutions and variations, and may have
imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, including those
required by Section 205, or with the rules of any securities market in which the
Securities are admitted to trading, or to conform to general usage.
Each Security (including the Guarantee) shall be dated the date of its
authentication, shall bear interest from the applicable date and shall be
payable on the dates specified on the face of the form of Security recited
above.
Securities (including Guarantees) offered and sold in reliance on Section
4(2) and Rule 144A shall be issued initially in the form of one or more
permanent global Security and Guarantee in registered form, substantially in the
form hereinabove
37
recited (the "U.S. GLOBAL SECURITY"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company, with the Guarantee of the
Guarantor endorsed thereon, and authenticated by the Trustee as herein provided.
The aggregate principal amount of the U.S. Global Security may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Securities (including Guarantees) offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of a single
temporary global Security and Guarantee in registered form substantially in the
form hereinabove recited (the "TEMPORARY OFFSHORE GLOBAL SECURITY") deposited
with the Trustee, as custodian for the Depositary, duly executed by the Company,
with the Guarantee of the Guarantor endorsed thereon, and authenticated by the
Trustee as provided herein. At any time on and after June 9, 1998 (the "OFFSHORE
SECURITIES EXCHANGE DATE"), a single permanent global Security and Guarantee in
registered form substantially in the form hereinabove recited without the
Private Placement Legend (the "PERMANENT OFFSHORE GLOBAL SECURITY"; and together
with the Temporary Offshore Global Security, the "OFFSHORE GLOBAL SECURITIES")
duly executed by the Company, with the Guarantee of the Guarantor endorsed
thereon, and authenticated by the Trustee as provided herein shall be deposited
with the Trustee, as custodian for the Depositary, and the Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of the Temporary Offshore Global Security in an amount equal to the principal
amount of the beneficial interest in the Temporary Offshore Global Security
transferred.
The Offshore Physical Securities and U.S. Physical Securities are sometimes
collectively herein referred to as the "PHYSICAL SECURITIES". The U.S. Global
Security and the Offshore Global Security are sometimes referred to herein as
the "GLOBAL SECURITIES".
The person in whose name any Security (including the Guarantee) is
registered at the close of business on any Interest Record Date with respect to
any Interest Payment Date shall be entitled to receive the interest, if any,
payable on such Interest Payment Date notwithstanding any transfer or exchange
of such Security (including the Guarantee) subsequent to the Interest Record
Date and prior to such Interest Payment Date, except if and to the extent the
Company shall default in the payment of the interest due on such Interest
Payment Date, in which case such defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest, shall be paid to the persons in
whose names outstanding Securities (including Guarantees) are registered at the
close of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of such payment) established by notice given by
mail by or on behalf of the Company to the
38
holders of Securities (including Guarantees) not less than 15 days preceding
such subsequent record date.
Section 2.05. Restrictive Legends. (a) Unless and until a Security
(including the Guarantee) is exchanged for an Exchange Security in connection
with an effective Registration pursuant to the Registration Rights Agreement,
the U.S. Global Security, Temporary Offshore Global Security, each U.S. Physical
Security and each Offshore Physical Security issued pursuant to Section 207,
shall bear the following legend on the face thereof:
THIS SECURITY AND THE RELATED GUARANTEE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY
THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X)
PRIOR TO THE SECOND ANNIVERSARY OF THE LATER OF THE DATE OF ORIGINAL
ISSUANCE HEREOF OR THE SALE HEREOF BY THE COMPANY, THE GUARANTOR OR ANY OF
THEIR RESPECTIVE AFFILIATES OR (Y) BY AN AFFILIATE OF THE COMPANY, THE
GUARANTOR OR BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY OR THE
GUARANTOR AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY OR THE GUARANTOR,
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), AND, IF SUCH TRANSFER IS BEING EFFECTED BY
CERTAIN TRANSFERORS PRIOR TO THE EXPIRATION OF THE "DISTRIBUTION COMPLIANCE
PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT), A CERTIFICATE THAT MAY BE OBTAINED FROM THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE
39
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT, OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY AND THE
GUARANTOR THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
(b) Each Global Security, whether or not an Exchange Security, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY, THE GUARANTOR OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 208 OF THE INDENTURE.
Section 2.06. Registration, Transfer and Exchange. The Securities
(including the Guarantee) are issuable only in registered form. The Company will
40
keep at each office or agency to be maintained for the purpose as provided in
Section 3.02 (the "REGISTRAR") a register or registers (the "SECURITY
REGISTER(S)") in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in
this Article provided. Such Security Register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such Security Register or
Security Registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security
(including the Guarantee) at each such office or agency, the Company and the
Guarantor shall execute and the Trustee shall authenticate and make available
for delivery in the name of the transferee or transferees a new Security or
Securities, in each case, with the Guarantee of the Guarantor endorsed thereon
in authorized denominations for a like aggregate principal amount.
A Holder may transfer a Security (including the Guarantee) only by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Indenture. No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder only
upon, final acceptance and registration of the transfer by the Registrar in the
Security Register. Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Guarantor, the Trustee, and any agent of the
Company and the Guarantor shall treat the person in whose name the Security
(including the Guarantee) is registered as the owner thereof for all purposes
whether or not the Security (including the Guarantee) shall be overdue, and
neither the Company, the Guarantor, the Trustee, nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global Security
shall, by acceptance of such Global Security, agree that transfers of beneficial
interests in such Global Security may be effected only through a book entry
system maintained by the Holder of such Global Security (or its agent) and that
ownership of a beneficial interest in the Security (including the Guarantee)
shall be required to be reflected in a book entry. When Securities (including
the Guarantee) are presented to the Registrar or a co-Registrar with a request
to register the transfer or to exchange them for an equal principal amount of
Securities (including the Guarantee) of other authorized denominations
(including an exchange of Securities for Exchange Securities), the Registrar
shall register the transfer or make the exchange as requested if the
requirements for such transactions set forth herein are met; provided that no
exchanges of Securities for Exchange Securities shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Securities that are exchanged for Exchange Securities shall be cancelled by the
Trustee. To permit registrations of transfers and exchanges, the Company and the
Guarantor shall execute and the Trustee shall authenticate Securities with the
Guarantee of the Guarantor endorsed thereon at the Registrar's request.
41
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities (including Guarantees) (other than any
such transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.11, 7.05 or 11.03). No service charge to any Holder shall
be made for any such transaction.
The Company and the Guarantor shall not be required to exchange or register
a transfer of (a) any Securities (including Guarantees) for a period of 15 days
next preceding the first mailing of notice of redemption of Securities
(including Guarantees) to be redeemed, or (b) any Securities (including
Guarantees) selected, called or being called for redemption except, in the case
of any Security (including any Guarantee) where public notice has been given
that such Security (including the Guarantee) is to be redeemed in part, the
portion thereof not so to be redeemed.
All Securities and Guarantees issued upon any transfer or exchange of
Securities and Guarantees shall be valid obligations of the Company and the
Guarantor, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities and Guarantees surrendered upon such transfer
or exchange.
Section 2.07. Book-Entry Provisions for Global Securities. (a) The U.S.
Global Security and Offshore Global Security initially shall (i) be registered
in the name of the Depositary for such Global Securities or the nominee of such
Depositary, (ii be delivered to the Trustee as custodian for such Depositary and
(ii bear legends as set forth in Section 2.05.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Guarantor, the Trustee or any agent of the Company, the Guarantor or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security (including the Guarantee).
(b) Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be
42
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.08. In addition, U.S. Physical Securities and
Offshore Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the U.S. Global Security or the
Offshore Global Security, respectively, if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the U.S.
Global Security or the Offshore Global Security, as the case may be, and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii an Event of Default of which the Trustee has actual notice has
occurred and is continuing and the Registrar has received a request from the
Depositary to issue such Physical Securities.
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Security to beneficial owners pursuant to paragraph
(b) of this Section 2.07, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global Security in
an amount equal to the principal amount of the beneficial interest in the U.S.
Global Security to be transferred, and the Company and the Guarantor shall
execute, and the Trustee shall authenticate and make available for delivery, one
or more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Security or
Offshore Global Security to beneficial owners pursuant to paragraph (b) of this
Section, the U.S. Global Security or Offshore Global Security, as the case may
be, shall be deemed to be surrendered to the Trustee for cancellation, and the
Company and the Guarantor shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in the U.S. Global Security or Offshore Global Security,
as the case may be, an equal aggregate principal amount of U.S. Physical
Securities or Offshore Physical Securities, as the case may be, of authorized
denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest in
the U.S. Global Security pursuant to paragraph (b) or (d) of this Section shall,
except as otherwise provided by paragraph 2.08(e), bear the legend regarding
transfer restrictions applicable to the U.S. Physical Security set forth in
Section 2.05.
43
(g) Any Offshore Physical Security delivered in exchange for an interest
in the Offshore Global Security pursuant to paragraph (b) of this Section shall,
except as otherwise provided by paragraph 2.08(e), bear the legend regarding
transfer restrictions applicable to the Offshore Physical Security set forth in
Section 2.05.
(h) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities (including the
Guarantee).
Section 2.08. Special Transfer Provisions. Unless and until a Security
(including the Guarantee) is exchanged for an Exchange Security in connection
with an effective Registration pursuant to the Registration Rights Agreement,
the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a U.S. Physical Security or an
interest in the U.S. Global Security to a QIB (excluding Non-U.S. Persons):
(i) If the Security (including the Guarantee) to be transferred
consists of (x) U.S. Physical Securities, the Registrar shall register the
transfer if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Security stating, or has
otherwise advised the Company, the Guarantor and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company, the Guarantor
and the Registrar in writing, that it is purchasing the Security for its
own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a 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 Company and the Guarantor as it has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A or (y) an interest in the U.S. Global Security, the transfer
of such interest may be effected only through the book entry system
maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the
44
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the U.S. Global Security in an amount equal to
the principal amount of the U.S. Physical Securities to be transferred and
the Trustee shall cancel the U.S. Physical Security so transferred.
(b) Transfers of Interests in the Temporary Offshore Global Security. The
following provisions shall apply with respect to registration of any proposed
transfer of interests in the Temporary Offshore Global Security:
(i) The Registrar shall register the transfer of any Security
(including the Guarantee) (x) if the proposed transferee is a Non-U.S.
Person and the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit A hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has checked the
box provided for on the form of Security stating, or has otherwise advised
the Company, the Guarantor and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of Security
stating, or has otherwise advised the Company, the Guarantor and the
Registrar in writing, that it is purchasing the Security (including the
Guarantee) 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 of Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt
by the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the U.S. Global Security, in an
amount equal to the principal amount of the Temporary Offshore Global
Security to be transferred, and the Trustee shall decrease the amount of
the Temporary Offshore Global Security in a like amount.
(c) Transfers of Interests in the Permanent Offshore Global Security or
Offshore Physical Securities to U.S. Persons. The following provisions shall
apply with respect to any transfer of interests in the Permanent Offshore Global
Security or Offshore Physical Securities to U.S. Persons: The Registrar shall
register the transfer of any such Security without requiring any additional
certification.
45
(d) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Security (including the Guarantee)
to a Non-U.S. Person:
(i) Prior to June 9, 1998, the Registrar shall register any
proposed transfer of a Security (including the Guarantee) to a Non-U.S.
Person upon receipt of a certificate substantially in the form of Exhibit A
hereto from the proposed transferor.
(ii) On and after June 9, 1998, the Registrar shall register any
proposed transfer to any Non-U.S. Person (x) if the Security to be
transferred is a U.S. Physical Security or an interest in the U.S. Global
Security, upon receipt of a certificate substantially in the form of
Exhibit A from the proposed transferor or (y) if the Security to be
transferred is an Offshore Physical Security or an interest in the
Permanent Offshore Global Security, without requiring any additional
certification.
(iii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Security in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Security to be transferred, and (b) if the proposed transferee is an
Agent Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Offshore Global Security in an amount equal
to the principal amount of the U.S. Physical Securities or the U.S. Global
Security, as the case may be, to be transferred, and the Trustee shall
cancel the Physical Security, if any, so transferred or decrease the amount
of the U.S. Global Security, as the case may be.
(e) Private Placement Legend. Upon the transfer, exchange or replacement
of Securities (including the Guarantee) not bearing the Private Placement
Legend, the Registrar shall deliver Securities (including the Guarantee) that do
not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities (including the Guarantee) bearing the Private
Placement Legend, the Registrar shall deliver only Securities (including the
Guarantee) that bear the Private Placement Legend unless the requested transfer
is after the time period referred to in Rule 144(k) under the Securities Act (or
any successor provision thereto) as in effect with respect
46
to such transfer, or either (i) the circumstances contemplated by the fifth
paragraph of Section 204 or paragraph (d)(ii) of this Section 2.08 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company, the Guarantor 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.
(f) General. By its acceptance of any Security (including the Guarantee)
bearing the Private Placement Legend, each Holder of such a Security (including
the Guarantee) acknowledges the restrictions on transfer of such Security
(including the Guarantee) set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security (including the
Guarantee) only as provided in this Indenture. The Registrar shall not register
a transfer of any Security (including the Guarantee) unless such transfer
complies with the restrictions on transfer of such Security (including the
Guarantee) set forth in this Indenture. In connection with any transfer of
Securities (including the Guarantee), each Holder agrees by its acceptance of
the Securities (including the Guarantee) to furnish the Registrar, the Company
or the Guarantor such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Registrar
shall not be required to determine (but may rely on a determination made by the
Company or the Guarantor with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.07(a) or this Section 2.08(a). The
Company and the Guarantor shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
Each Holder of a Security (including the Guarantee) agrees to indemnify the
Company, the Guarantor and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder's Security (including
the Guarantee) in violation of any provision of this Indenture and/or applicable
United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and
47
when expressly required by the terms of, this Indenture, and to examine the same
to determine substantial compliance as to form with the express requirements
hereof.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security (including the Guarantee) shall
become mutilated, defaced or be apparently destroyed, lost or stolen, the
Company and the Guarantor in their discretion may execute, and upon the written
request of any officer of the Company or the Guarantor, the Trustee shall
authenticate and make available for delivery, a new Security (with the Guarantee
endorsed thereon), bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and substitution for the Security (including the Guarantee) so apparently
destroyed, lost or stolen. In every case the applicant for a substitute Security
shall furnish to the Company, the Guarantor and the Trustee and any agent of the
Company, the Guarantor or the Trustee such security or indemnity as may be
required by each of them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
Upon the issuance of any substitute Security (including the Guarantee), the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security which has matured or is about to mature, or has been called
for redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if the applicant for
such payment shall furnish to the Company, the Guarantor and to the Trustee and
any agent of the Company, the Guarantor or the Trustee such security or
indemnity as any of them may require to save each of them harmless from all
risks, however remote, and, in every case of apparent destruction, loss or
theft, the applicant shall also furnish to the Company, the Guarantor and the
Trustee and any agent of the Company, the Guarantor or the Trustee evidence to
their satisfaction of the apparent destruction, loss or theft of such Security
and of the ownership thereof.
Every substitute Security issued pursuant to the provisions of this Section
by virtue of the fact that any Security is apparently destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company and the
Guarantor, whether or not the apparently destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in)
this Indenture equally and proportionately with any and all other Securities
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent
48
permitted by law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.10. Cancellation of Securities. All Securities surrendered for
payment, redemption, registration of transfer or exchange, if surrendered to the
Company or any agent of the Company or the Trustee, shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall deliver
cancelled Securities to the Company. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive
Securities, the Company and the Guarantor may execute and the Trustee shall
authenticate and make available for delivery temporary Securities with the
Guarantee endorsed thereon, (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities (including the Guarantee) shall be issuable as registered Securities
without coupons, of any authorized denomination, and substantially in the form
of the definitive Securities (including the Guarantee) but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company and the Guarantor with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security (including the
Guarantee) shall be executed by the Company and the Guarantor and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Company and the Guarantor shall execute and shall furnish
definitive Securities (with the Guarantee endorsed thereon) and thereupon
temporary Securities (including the Guarantee) may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Company
for the purpose pursuant to Section 3.02, and the Trustee shall authenticate and
make available for delivery in exchange for such temporary Securities (including
the Guarantee) a like aggregate principal amount of definitive Securities
(including the Guarantee) of authorized denominations. Until so exchanged the
temporary Securities (including the Guarantee) shall be entitled to the same
benefits under this Indenture as definitive Securities (including the
Guarantee).
49
Section 2.12. CUSIP and CINS Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; provided that any
such notice shall state that no representation is made as the correctness of
such numbers either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any change in the CUSIP numbers or CINS numbers.
ARTICLE 3
Covenants of the Company, the Guarantor and the Trustee.
Section 3.01. Payment of Principal and Interest. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities at the place or places, at
the respective times and in the manner provided in the Securities. Each
installment of interest on the Securities may be paid by mailing checks for such
interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear on the registry books of the Company, or
by wire transfer to such holders in immediately available funds, to such bank or
other entity in the continental United States as shall be designated by such
holders and shall have appropriate facilities for such purpose, or in accordance
with the standard operating procedures of the Depositary.
Section 3.02. Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Company and Guarantor will maintain in the City of New
York, the following: (a) an office or agency where the Securities (including the
Guarantee) may be presented for payment, (b) an office or agency where the
Securities (including the Guarantee) may be presented for registration of
transfer and for exchange as in this Indenture provided and (c) an office or
agency where notices and demands to or upon the Company and Guarantor in respect
of the Securities, the Guarantee or of this Indenture may be served. The Company
and Guarantor will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. The Company and
Guarantor hereby initially designate the Corporate Trust Office of the Trustee
as the office or agency for each such purpose. In case the Company or Guarantor
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office.
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Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company or the Guarantor, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 510, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Company or the Guarantor shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities (whether such sums
have been paid to it by the Company, the Guarantor or by any other obligor on
the Securities) in trust for the benefit of the holders of the Securities or of
the Trustee,
(b) that it will give the Trustee notice of any failure by the Company or
the Guarantor (or any other obligor on the Securities) to make any payment of
the principal of or interest on the Securities when the same shall be due and
payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Company will, prior to each due date of the principal of or interest on
the Securities, deposit with the paying agent a sum sufficient to pay such
principal or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action.
If the Company or the Guarantor shall act as paying agent, it will, on or
before each due date of the principal of or interest on the Securities, set
aside, segregate and hold in trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal or interest so becoming due.
The Company or the Guarantor, as the case may be, will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company or
the Guarantor may at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company, the Guarantor or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
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Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section are subject to the provisions of
Sections 1205 and 1206.
Section 3.05. Certificates to Trustee. (a) The Company and the Guarantor
will deliver to the Trustee within 90 days after the end of each fiscal year of
the Company and the Guarantor a certificate from the principal executive,
financial or accounting officer of the Company and the Guarantor as to his or
her knowledge of the Company's and the Guarantor's compliance with all
conditions and covenants under this Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
this Indenture).
(b) The Company or the Guarantor will deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company or the Guarantor
becomes aware or should reasonably become aware of the occurrence of an Event of
Default or a Default, an Officer's Certificate setting forth the details of such
Event of Default or Default, and the action which the Company or the Guarantor
proposes to take with respect thereto.
(c) The Guarantor will deliver to the Trustee within 90 days after the end
of each fiscal year of the Guarantor a written statement by the Guarantor's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Securities (including
the Guarantee) as they relate to accounting matters, and (ii whether, in
connection with their audit examination, any Default has come to their attention
and, if such a Default has come to their attention, specifying the nature and
period of the existence thereof.
Section 3.06. Securityholders' Lists. If and so long as the Trustee shall
not be the Registrar, the Company will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the holders of the Securities pursuant to Section 312 of the
Trust Indenture Act (a) semi-annually not more than 15 days after each Interest
Record Date as of such Interest Record Date, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Company
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
Section 3.07. Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15 following
the date of this Indenture deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of such Section 313(a).
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(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange.
Section 3.08. Limitation on Restricted Payments. The Guarantor will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any distribution on account
of the Guarantor's or any Restricted Subsidiary's Equity Interests (other than
(x) dividends or distributions payable in Qualified Equity Interests of the
Guarantor and (y) dividends or distributions payable to the Guarantor or any
Restricted Subsidiary of the Guarantor); (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Guarantor or any of its
Restricted Subsidiaries; (iii) make any voluntary or optional principal payment
on, or voluntary or optional purchase, redemption, defeasance, or other
acquisition or retirement for value of, any Subordinated Debt; or (iv) make any
Investment that is a Restricted Investment (all such payments and other actions
set forth in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, shall be the fair market value (as conclusively evidenced by a resolution
of the Board of Directors of the Guarantor set forth in an Officer's Certificate
delivered to the Trustee within 60 days prior to the date of such Restricted
Payment) of the asset(s) proposed to be transferred by the Guarantor or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment):
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Guarantor would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 309; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Guarantor and its Restricted Subsidiaries
after March 31, 1998 (excluding Restricted Payments permitted by clauses
(B), (D) and (E) of the next succeeding paragraph), is less than the sum of
(i) 50% of the Consolidated Net Income of the Guarantor for the period
(taken as one accounting period) from the beginning of the first fiscal
quarter commencing after March 31, 1998 to the end of the Guarantor's most
recently ended fiscal
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quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the Guarantor from
the issue or sale (other than to a Restricted Subsidiary of the Guarantor)
since March 31, 1998 of Qualified Equity Interests of the Guarantor or of
debt securities of the Guarantor or any of its Restricted Subsidiaries that
have been converted into or exchanged for such Qualified Equity Interests
of the Guarantor, plus (iii) $25 million.
If no Default or Event of Default has occurred and is continuing, or
would occur as a consequence thereof, the foregoing provisions will not prohibit
the following Restricted Payments: (A) the payment of any dividend within 60
days after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of the Indenture; (B) the
payment of cash dividends on any series of Disqualified Stock issued after the
date of the Indenture in an aggregate amount not to exceed the cash received by
the Guarantor since the date of the Indenture upon issuance of such Disqualified
Stock; (C) the payment of dividends on Existing Preferred Stock at an annual
rate of 6%; (D) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Guarantor or any Restricted Subsidiary in exchange
for, or out of the net cash proceeds of, the substantially concurrent sale
(other than to a Restricted Subsidiary of the Guarantor) of Qualified Equity
Interests of the Guarantor; provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement or
other acquisition shall be excluded from clause (c)(ii) of the preceding
paragraph; (E) the defeasance, redemption or repurchase of Subordinated Debt
(including any Subordinated Debt that constitutes Acquired Debt) with the net
cash proceeds from an incurrence of Permitted Refinancing Indebtedness or in
exchange for or out of the net cash proceeds from the substantially concurrent
sale (other than to a Restricted Subsidiary) of Qualified Equity Interests of
the Guarantor; provided, that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement or other acquisition
shall be excluded from clause (c)(ii) of the preceding paragraph; (F) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Guarantor or any Restricted Subsidiary held by any
member of the Guarantor's (or any of its Restricted Subsidiary's) management
pursuant to any management equity subscription agreement or stock option
agreement; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $5 million in
any twelve-month period; and (G) the repurchase of any Indebtedness that is pari
passu with the Securities or any Subordinated Debt at a purchase price not
greater than 101% of the principal amount of such Indebtedness or Subordinated
Debt, as the case may be, in the event of a Change of Control pursuant to a
provision similar to the provision described in Section 317; provided that prior
to such repurchase the Guarantor has made a Change of Control Offer as provided
in Section 317 and has repurchased all
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Securities validly tendered for payment in connection with such Change of
Control Offer.
Not later than the date of making any Restricted Payment, the Guarantor
shall deliver to the Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this covenant were computed.
Section 3.09. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock. The Guarantor will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, Guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") after the
date of the Indenture any Indebtedness (including Acquired Debt) and neither the
Company nor the Guarantor will issue any Disqualified Stock and the Guarantor
will not permit any of its Restricted Subsidiaries (other than the Company) to
issue any shares of preferred stock; provided, however, that the Company and the
Guarantor may incur Indebtedness (including Acquired Debt) and the Company and
the Guarantor may issue shares of Disqualified Stock if (i) no Default or Event
of Default will have occurred and be continuing or would occur as a consequence
thereof and (ii) the Fixed Charge Coverage Ratio for the Guarantor's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least (x) 1.50 to 1 if such incurrence or issuance occurs on or before April 30,
1999, (y) 1.75 to 1 if such incurrence or issuance occurs after April 30, 1999
and on or before April 30, 2000 and (z) 2.00 to 1 if such incurrence or issuance
occurs after April 30, 2000, in each case, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom) as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
Indebtedness consisting of reimbursement obligations in respect of a letter of
credit will be deemed to be incurred when the letter of credit is first issued.
Neither the Company nor the Guarantor will permit any of their respective
Unrestricted Subsidiaries to incur any Indebtedness other than Non-Recourse
Debt.
The foregoing provisions will not apply to:
(i) the incurrence by the Company and the Guarantor of Senior Debt
under the Company Credit Agreement in an aggregate principal amount at any
time outstanding not to exceed an amount equal to $1.0 billion less the
aggregate amount of all mandatory payments applied to repay loans (other
than revolving credit loans) outstanding thereunder or permanently reduce
the revolving credit commitments thereunder; provided that the Company and
the Guarantor may incur Senior Debt in an aggregate principal amount at any
time
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outstanding not to exceed $300 million under the revolving credit facility
under the Company Credit Agreement;
(ii) the incurrence by the Company and the Guarantor of Indebtedness
represented by the Securities and the Guarantee;
(iii) Existing Indebtedness;
(iv) the incurrence by the Guarantor or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund, Indebtedness that was permitted by the Indenture to be
incurred (including, without limitation, Existing Indebtedness);
(v) the incurrence by the Guarantor or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Guarantor
and any of its Restricted Subsidiaries; provided that upon either (a) the
transfer or other disposition by the Guarantor or a Restricted Subsidiary
of any Indebtedness so permitted under this clause (v) to a Person other
than the Guarantor or a Restricted Subsidiary or (b) the issuance, sale,
transfer or other disposition of Equity Interests (including by
consolidation or merger) in a Restricted Subsidiary to a Person other than
the Guarantor or a Restricted Subsidiary which results in such Restricted
Subsidiary ceasing to be a Restricted Subsidiary, the provisions of this
clause (v) shall no longer be applicable to such Indebtedness and such
Indebtedness shall be deemed to have been incurred at the time of any such
issuance, sale, transfer or other disposition, as the case may be;
(vi) the incurrence by the Guarantor or any of its Restricted
Subsidiaries of Hedging Obligations or Guarantees thereof, provided that
such Hedging Obligations are incurred for the purpose of fixing or hedging
interest rate or currency risk with respect to any fixed or floating rate
Indebtedness that is permitted by the Indenture to be outstanding or any
receivable or liability, the payment of which is determined by reference to
a foreign currency; provided that the notional principal amount of any such
Hedging Obligation does not exceed the principal amount of the Indebtedness
to which such Hedging Obligation relates;
(vii) the incurrence by the Guarantor or any of its Restricted
Subsidiaries of Indebtedness represented by performance bonds, standby
letters of credit or appeal bonds, in each case to the extent incurred in
the ordinary course of business of the Guarantor or such Restricted
Subsidiary;
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(viii) the incurrence by any Restricted Subsidiary (other than the
Company) of Indebtedness, the aggregate principal amount of which, together
with all other Indebtedness of the Guarantor's Restricted Subsidiaries
(other than the Company) at the time outstanding (excluding Existing
Indebtedness until repaid or refinanced), does not exceed the greater of
(1) 10% of the Guarantor's Stockholders' Equity as of the date of
incurrence or (2) $10 million; provided that, in the case of clause (1)
only, the Fixed Charge Coverage Ratio for the Guarantor's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such Indebtedness
(including Acquired Subsidiary Debt) is incurred would have been at least
(x) 1.50 to 1 if such incurrence occurs on or before April 30, 1999, (y)
1.75 to 1 if such incurrence occurs after April 30, 1999 and on or before
April 30, 2000 and (z) 2.00 to 1 if such incurrence occurs after April 30,
2000, in each case, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if such Indebtedness had
been incurred at the beginning of such four-quarter period; provided
further, that solely for the purpose of determining whether the aggregate
principal amount of Indebtedness of the Guarantor's Restricted Subsidiaries
(other than the Company) at any time outstanding exceeds 10% of the
Guarantor's Stockholders' Equity, Acquired Subsidiary Debt shall be
excluded; and
(ix) the incurrence by the Company and the Guarantor of Indebtedness
(in addition to Indebtedness permitted by any other clause of this
paragraph) in an aggregate principal amount at any time outstanding not to
exceed $25 million.
Section 3.10. Disposition of Proceeds of Asset Sales. The Guarantor will
not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless (i) the Guarantor (or the Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (as conclusively determined by a resolution of the Board
of Directors of the Guarantor set forth in an Officer's Certificate delivered to
the Trustee) of the assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration therefor received by the
Guarantor or such Restricted Subsidiary is in the form of cash; provided that
for purposes of this provision, the amount of (A) any liabilities (as shown on
the Guarantor's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto), of the Guarantor or any Restricted Subsidiary (other than,
in the case of an Asset Sale by the Company or the Guarantor, liabilities that
are by their terms subordinated to the Securities or the Guarantee, as the case
may be) that are assumed by the transferee of any such assets and (B) any
securities or other obligations received by the Guarantor or any such Restricted
Subsidiary from such transferee that are immediately converted by the Guarantor
or such Restricted
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Subsidiary into cash (or as to which the Guarantor or such Restricted Subsidiary
has received at or prior to the consummation of the Asset Sale a commitment
(which may be subject to customary conditions) from a nationally recognized
investment, merchant or commercial bank to convert into cash within 90 days of
the consummation of such Asset Sale and which are thereafter actually converted
into cash within such 90-day period) will be deemed to be cash (but shall not be
deemed to be Net Proceeds for purposes of the following provisions until reduced
to cash). Notwithstanding the foregoing, it will not be a violation of the
foregoing provisions if the Guarantor or a Restricted Subsidiary receives
Investments as all or part of the consideration for an Asset Sale (which
consideration is not otherwise permitted), if such Investments constitute
Restricted Investments permitted by Section 308.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Guarantor or the Restricted Subsidiary, as the case may be, may apply such
Net Proceeds (i) to purchase one or more Healthcare Facilities and/or a
controlling interest in the Capital Stock of a Person owning one or more
Healthcare Facilities, (ii) to make a capital expenditure or to acquire other
tangible assets, in each case, that are used or useful in any business in which
the Guarantor or any of its Restricted Subsidiaries is permitted to be engaged
pursuant to Xxxxxxx 000, (xxx) to permanently reduce Existing Indebtedness of a
Restricted Subsidiary (other than the Company), or (iv) to permanently reduce
Senior Debt (and, in the case of revolving credit loans, to correspondingly
reduce commitments with respect thereto). Any Net Proceeds from Asset Sales that
are not applied or invested as provided in the first sentence of this paragraph
will be deemed to constitute "EXCESS PROCEEDS."
When the aggregate amount of Excess Proceeds exceeds $15 million, the
Company will be required to make an offer to all Holders of Securities and
holders of any other Indebtedness of the Company ranking on a parity with the
Securities from time to time outstanding with similar provisions requiring the
Company to make an offer to purchase or to redeem such Indebtedness with the
proceeds from any asset sales, pro rata in proportion to the respective
principal amounts of Securities and such other Indebtedness then outstanding (an
"ASSET SALE OFFER") to purchase the maximum principal amount of the Securities
and such other Indebtedness that may be purchased out of the Excess Proceeds, at
an offer price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase, in accordance with
the procedures set forth below. To the extent that the aggregate amount of
Securities and such other Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Securities and such other Indebtedness surrendered by holders thereof exceeds
the amount of Excess Proceeds, the Securities and such other Indebtedness will
be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.
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No later than the date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall notify the Trustee of such Asset Sale
Offer and provide the Trustee with an Officer's Certificate setting forth the
calculations used in determining the amount of Net Proceeds to be applied to the
purchase of Securities. The Company shall commence or cause to be commenced the
Asset Sale Offer on a date no later than 10 Business Days after such notice (the
"COMMENCEMENT DATE").
The Asset Sale Offer shall remain open for at least 20 Business Days after
the Commencement Date relating to such Asset Sale Offer and shall remain open
for no more than such 20 Business Days, except to the extent required by
applicable law (as so extended, the "OFFER PERIOD"). No later than two Business
Days after the termina tion of the Offer Period (the "PURCHASE DATE"), the
Company shall purchase the principal amount (the "OFFER AMOUNT") of Securities
required to be purchased in such Asset Sale Offer pursuant to this Section or,
if less than the Offer Amount has been tendered, all Securities tendered in
response to the Asset Sale Offer, in each case for an amount in cash equal to
the Purchase Price.
If the Purchase Date is on or after an interest payment record date and on
or before the related interest payment date, any accrued interest shall be paid
to the Person in whose name a Security is registered at the close of business on
such record date, and no additional interest shall be payable to Holders who
tender Securities pursuant to the Asset Sale Offer.
On the Commencement Date of any Asset Sale Offer, the Company shall send,
or at the Company's request the Trustee shall send, by first class mail, a
notice to each of the Holders at their last registered address, with a copy to
the Trustee and the paying agent, offering to repurchase the Securities held by
such Holder pursuant to the procedure specified in such notice. Such notice,
which shall govern the terms of the Asset Sale Offer, shall contain all
instructions and materials necessary to enable the Holders to tender Securities
pursuant to the Asset Sale Offer and shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section and the length of time the Asset Sale Offer shall remain
open;
(2) the Offer Amount, the Purchase Price and the Purchase
Date;
(3) that any Security not tendered or accepted for payment
shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the
Purchase Price, any Security accepted for payment
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pursuant to the Asset Sale Offer shall cease to accrue interest
after the Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to any Asset Sale Offer shall be required to surrender
the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the
Company, a depositary, if appointed by the Company, or a paying
agent at the address specified in the notice prior to the close
of business on the Business Day next preceding the Purchase Date;
(6) that Holders shall be entitled to withdraw their
election if the Company, depositary or paying agent, as the case
may be, receives, not later than the close of business on the
Business Day next preceding the termination of the Offer Period,
a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Security purchased;
(7) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Trustee
shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the
Trustee so that only Securities in denominations of $1,000, or
integral multiples thereof, shall be purchased);
(8) that Holders whose Securities were purchased only in
part shall be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered; and
(9) the circumstances and relevant facts regarding such
Asset Sale and any other information that would be material to a
decision as to whether to tender a Security pursuant to the Asset
Sale Offer.
On the Purchase Date, the Company shall, to the extent lawful, (i) accept
for payment, on a pro rata basis to the extent necessary, an aggregate principal
amount equal to the Offer Amount of Securities tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Securities
or portion thereof so
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tendered, (ii) deposit with the paying agent an amount equal to the Purchase
Price in respect of all Securities or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officer's Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company. The paying agent
shall promptly mail to each Holder of Securities so tendered payment in an
amount equal to the Purchase Price for such Securities and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) a new
Security to such Holder equal in principal amount to any unpurchased portion of
the Securities surrendered, if any; provided that each such new Security shall
be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities as a result of the Asset Sale Offer.
Section 3.11. Limitation on Liens. The Guarantor will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien (except Permitted Liens) on any asset
now owned or hereafter acquired, or any income or profits therefrom or assign or
convey any right to receive income therefrom unless all Obligations under the
Indenture, the Securities and the Guarantee are secured on an equal and ratable
basis (or on a senior basis, in case of Subordinated Debt) with the Obligations
so secured until such time as such Obligations are no longer secured by a Lien.
Section 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Guarantor will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)(a)
pay dividends or make any other distributions to the Guarantor or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Guarantor or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Guarantor or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Guarantor or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (a) Existing Indebtedness as in effect on the date of the
Indenture, (b) the Indenture, (c) applicable law or state insurance regulations,
(d) any instrument governing Indebtedness or Capital Stock of a Person acquired
by the Guarantor or any of its Restricted Subsidiaries as in effect at the time
of such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition or in violation of the
covenant described in Section 3.09), which
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encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person (including its Subsidiaries), or the
property or assets of the Person (including its Subsidiaries), so acquired,
provided that the Consolidated EBITDA of such Person is not taken into account
in determining whether such acquisition was permitted by the terms of the
Indenture except to the extent that such Consolidated EBITDA would be permitted
to be dividended to the Company or the Guarantor by such Person or by a
Restricted Subsidiary which is the parent of such Person without the prior
consent or approval of any third party, (e) any operating lease or capital
lease, insofar as the provisions thereof limit grants of a security interest in,
or other assignments of, the related leasehold interest to any other Person, (f)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, (g) Permitted Refinancing Indebtedness, provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced, or (h) the Company
Credit Agreement and related documentation as the same is in effect on the date
of the Indenture and as amended or replaced from time to time, provided that no
such amendment or replacement is more restrictive as to the matters enumerated
above than the Company Credit Agreement and related documentation as in effect
on the date of the Indenture. Nothing contained in this paragraph shall prevent
the Guarantor or any Restricted Subsidiary from entering into any agreement
resulting in the incurrence of Liens otherwise permitted under the provisions of
Section 311.
Section 3.13. Limitation on Line of Business. The Guarantor will not, and
will not permit any of its Restricted Subsidiaries to, engage to any material
extent in any business other than the ownership, operation or management of
Healthcare Facilities, including the acceptance of risk for the provision of
long-term care.
Section 3.14. Limitation on Senior Subordinated Debt. Neither the Company
nor the Guarantor will incur, create, issue, assume, Guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in any respect in right of payment to the
Securities or the Guarantee.
Section 3.15. Limitation on Transactions with Affiliates. The Guarantor
will not, and will not permit any of its Restricted Subsidiaries to, sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(I) in the case of an Affiliate Transaction in excess of $1.0 million involving
Ventas, Inc. or any of its subsidiaries, the Guarantor delivers to the Trustee a
resolution of the Board of Directors of the Guarantor set forth
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in an Officer's Certificate certifying that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of Directors of
the Guarantor and (II) in all other cases (i) such Affiliate Transaction is on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that could have been obtained in a comparable transaction
by the Guarantor or such Restricted Subsidiary with an unrelated Person and (ii)
the Guarantor delivers to the Trustee (a) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $5.0 million, a
resolution of the Board of Directors of the Guarantor set forth in an Officer's
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Guarantor and (b) with
respect to any Affiliate Transaction involving aggregate consideration in excess
of $15.0 million, an opinion as to the fairness to the Guarantor or such
Restricted Subsidiary of such Affiliate Transaction from a financial point of
view issued by an investment banking firm of national standing; provided that
(u) transactions or payments pursuant to any employment arrangements, employee
relocations or employee or director benefit plans entered into by the Guarantor
or any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Guarantor or such Restricted
Subsidiary, (v) transactions between or among the Guarantor and/or its
Restricted Subsidiaries, (w) transactions pursuant to or performance of the
Existing Affiliate Agreements and the Reorganization Agreements on the terms in
effect on the date of the Indenture, (x) transactions between a Person and an
Affiliate existing at the time such Person is merged with or into or becomes a
Restricted Subsidiary, except to the extent such transaction was entered into in
connection with, or in contemplation of, such Person merging with or into or
becoming a Restricted Subsidiary (y) the payment of dividends on and redemption
of Existing Preferred Stock and (z) transactions between the Guarantor or any
Restricted Subsidiary and Atria in accordance with agreements in existence on
the date of the Indenture, in each case, shall not be deemed to be Affiliate
Transactions.
Notwithstanding the foregoing, any Investment in Affiliates permitted by
the provisions of Section 308 shall not be prohibited by the foregoing
limitations on Affiliate Transactions.
Section 3.16. Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries. The Guarantor will not permit any Restricted
Subsidiary (other than the Company), directly or indirectly, to Guarantee or
secure the payment of any other Indebtedness of the Guarantor or any of its
Restricted Subsidiaries (except Indebtedness of a Restricted Subsidiary of such
Restricted Subsidiary) unless such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to the Indenture providing for the
Guarantee of the payment of the Securities by such Restricted Subsidiary, which
Guarantee shall be senior to or pari passu with such Restricted Subsidiary's
Guarantee of or pledge to secure such other
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Indebtedness. Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Securities shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon a sale or other
disposition, by way of merger or otherwise, to any Person not an Affiliate of
the Guarantor, of the Guarantor's stock in, or the assets of, such Restricted
Subsidiary, which sale or other disposition results in such Restricted
Subsidiary ceasing to be a Restricted Subsidiary and such sale or other
disposition is made in compliance with, and the Net Proceeds therefrom are
applied in accordance with, the applicable provisions of the Indenture. The form
of such supplemental indenture will be attached as an exhibit to the Indenture.
The foregoing provisions will not be applicable to (i) Guarantees by Restricted
Subsidiaries of the Company's Indebtedness under the Company Credit Agreement
and with respect to Hedging Obligations related to the Company Credit Agreement,
(ii) Guarantees of Indebtedness of a Person by its subsidiaries in effect prior
to the time such Person is merged with or into or became a Restricted
Subsidiary, provided that such Guarantees do not extend to any other
Indebtedness of such Person or any other Person and (iii) any one or more
Guarantees of up to $10 million in aggregate principal amount of Indebtedness of
the Guarantor or any Restricted Subsidiary at any time outstanding.
Section 3.17. Change of Control. Upon the occurrence of a Change of
Control, each Holder of Securities will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Securities pursuant to the offer described below (the "CHANGE OF
CONTROL OFFER") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase (the "CHANGE OF CONTROL PAYMENT") on a date that is not more than 90
days after the occurrence of such Change of Control (the "CHANGE OF CONTROL
PAYMENT DATE"). Prior to the mailing of notice to Holders provided for in the
succeeding paragraph, but in any event within 30 days following any Change of
Control, the Company covenants to (i) repay in full all Senior Debt that would
prohibit the repurchase of the Securities as provided for in the succeeding
paragraph or (ii) obtain any requisite consents under instruments governing any
such Senior Debt to permit the repurchase of the Securities as provided for in
the succeeding paragraph. The Company shall first comply with the covenant in
the preceding sentence before it shall be required to repurchase Securities
pursuant to this Section 3.17.
Within 30 days following any Change of Control, the Company will mail, or
at the Company's request the Trustee will mail, a notice of a Change of Control
to each Holder (at its last registered address with a copy to the Trustee and
the paying agent) offering to repurchase the Securities held by such Holder
pursuant to the procedure specified in such notice. The Change of Control Offer
shall remain open from the time of mailing until the close of business on the
Business Day next preceding the Change of Control Payment Date. The notice,
which shall govern the
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terms of the Change of Control Offer, shall contain all instructions and
materials necessary to enable the Holders to tender Securities pursuant to the
Change of Control Offer and shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 3.17 and that all Securities
tendered will be accepted for payment;
(2) the Change of Control Payment and the Change of
Control Payment Date, which date shall be no earlier than 30
days nor later than 60 days from the date such notice is
mailed;
(3) that any Security not tendered will continue to
accrue interest in accordance with the terms of this
Indenture;
(4) that, unless the Company defaults in the payment of
the Change of Control Payment, all Securities accepted for
payment pursuant to the Change of Control Offer will cease
to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to any Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security
completed, to the Company, a depositary, if appointed by the
Company, or a paying agent at the address specified in the
notice prior to the close of business on the Business Day
next preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Company, depositary or paying agent, as the
case may be, receives, not later than the close of business
on the Business Day next preceding the Change of Control
Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase, and a statement
that such Holder is withdrawing his election to have such
Security purchased;
(7) that Holders whose Securities are being purchased
only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the
Securities
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surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof;
and
(8) the circumstances and relevant facts regarding such
Change of Control (including, but not limited to,
information with respect to pro forma historical financial
information after giving effect to such Change of Control,
information regarding the Person or Persons acquiring
control and such Person's or Persons' business plans going
forward) and any other information that would be material to
a decision as to whether to tender a Security pursuant to
the Change of Control Offer.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (i) accept for payment all Securities or portions thereof properly
tendered and not withdrawn pursuant to the Change of Control Offer, (ii) deposit
with the paying agent an amount equal to the Change of Control Payment in
respect of all Securities or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee the Securities so accepted together with an
Officer's Certificate stating the aggregate principal amount of Securities or
portions thereof being purchased by the Company. The paying agent will promptly
mail to each Holder of Securities so tendered the Change of Control Payment for
such Securities, and the Trustee will promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered, if
any; provided that each such new Security will be in a principal amount of
$1,000 or an integral multiple thereof. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities as a result of a Change of Control.
Section 3.18. Termination of Certain Covenants if Securities Rated Invest
ment Grade. Notwithstanding the foregoing, the Company's and the Guarantor's
obligation to comply with the provisions of Sections 3.08, 3.09, 3.10, 3.12,
3.13, 3.14, 3.15 and 3.16 will terminate if and when the Securities become
Investment Grade Rated.
Section 3.19. Reports. (i) So long as any of the Securities remain
outstanding, the Guarantor will furnish to the Holders of Securities within 15
days after the filing thereof with the Commission copies of the annual reports
and of the
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information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that the
Guarantor is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. All obligors on the Securities shall comply with the
provisions of the Trust Indenture Act Section 314(a). Notwithstanding that the
Guarantor may not be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act or otherwise report on an annual and quarterly basis
on forms provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Guarantor shall file with the
Commission and provide to the Trustee (a) within 90 days after the end of each
fiscal year, annual reports on Form 10-K (or any successor or comparable form)
containing the information required to be contained therein (or required in such
successor or comparable form), including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and a report thereon by the
Guarantor's certified public accountants; (b) within 45 days after the end of
each of the first three fiscal quarters of each fiscal year, reports on Form 10-
Q (or any successor or comparable form) containing the information required to
be contained therein (or required in any successor or comparable form),
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations"; and (c) promptly from time to time after the occurrence
of an event required to be therein reported, such other reports on Form 8-K (or
any successor or comparable form) containing the information required to be
contained therein (or required in any successor or comparable form); provided,
however, that the Guarantor shall not be in default of the provisions of this
Section 3.19) for any failure to file reports with the Commission solely by the
refusal of the Commission to accept the same for filing. Each of the financial
statements contained in such reports shall be prepared in accordance with GAAP.
(ii) The Trustee, at the Guarantor's expense, shall promptly mail
copies of all such annual reports, information, documents and other reports
provided to the Trustee pursuant to Section 3.19(a)(i) hereof to the
Holders at their addresses appearing in the register of Securities
maintained by the Registrar.
(iii) Whether or not required by the rules and regulations of the
Commission, the Guarantor shall file a copy of all such information and
reports with the Commission for public availability and make such
information available to securities analysts and prospective investors upon
request.
(iv) The Guarantor shall provide the Trustee with a sufficient number
of copies of all reports and other documents and information that the
Trustee may be required to deliver to the Holders under this Section 3.19.
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(v) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Guarantor's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer's Certificates).
Section 3.20. Waiver of Stay, Extension or Usury Laws. The Company and the
Guarantor covenant (to the extent that it may lawfully do so) that they will not
(i) at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company or the Guarantor from paying all
or any portion of the principal of or interest on the Securities 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 the Company and
the Guarantor will expressly waive all benefit or advantage of any such law and
(ii) hinder, delay or impede the execution of any power granted to the Trustee
under this Indenture and will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 4
Remedies of the Trustee and Holders on Event of Default
Section 4.01. Events of Default. Each of the following constitutes an
"EVENT OF DEFAULT":
(i) default for 30 days in the payment when due of interest on the
Securities (whether or not prohibited by the provisions described in
Article 9);
(ii) default in payment when due of the principal of or premium, if
any, on the Securities (whether or not prohibited by the provisions
described in Article 9);
(iii) failure by the Company or the Guarantor to comply with the
provisions of Sections 3.08, 3.09, 3.10, or 3.17 hereof;
(iv) failure by the Company or the Guarantor for 30 days after notice
to comply with any other covenant or agreement in the Indenture, the
Securities or the Guarantee;
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(v) any default that occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company, the
Guarantor or any Significant Subsidiary of the Guarantor (or the payment of
which is Guaranteed by the Company, the Guarantor or any Significant
Subsidiary of the Guarantor), whether such Indebtedness or Guarantee exists
on the date hereof or is created after the date hereof, which default (a)
constitutes a Payment Default or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or
that has been so accelerated, aggregates $25.0 million or more;
(vi) the termination of any Master Lease Agreement upon an Event of
Default (as defined in such Master Lease Agreement) or the surrender or
repossession of all of the Leased Property (as defined in each Master Lease
Agreement) upon an Event of Default under such Master Lease Agreement;
(vii) failure by the Company, the Guarantor or any Significant
Subsidiary of the Guarantor to pay a final judgment or final judgments
entered by a court or courts of competent jurisdiction against the Company,
the Guarantor or any Significant Subsidiary of the Guarantor aggregating in
excess of $25.0 million if such final judgment or judgments remain unpaid
or undischarged for a period (during which execution shall not be
effectively stayed) of 60 days after their entry;
(viii) the Company, the Guarantor or any Significant Subsidiary of the
Guarantor thereof 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 in which it is the debtor,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability generally to pay its
debts as the same become due; and
69
(ix) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, the Guarantor or any
Significant Subsidiary of the Guarantor in an involuntary case in
which it is the debtor,
(B) appoints a Custodian of the Company, the Guarantor or any
Significant Subsidiary of the Guarantor or for all or substantially
all of the property of the Company, the Guarantor or any Significant
Subsidiary of the Guarantor, or
(C) orders the liquidation of the Company, the Guarantor or any
Significant Subsidiary of the Guarantor,
and the order or decree remains unstayed and in effect for 60 days.
The term "BANKRUPTCY LAW" means title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "CUSTODIAN" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (iv) is not an Event of Default until the Trustee
notifies the Company and the Guarantor in writing, or the Holders of at least
25% in aggregate principal amount of the then outstanding Securities notify the
Company, the Guarantor and the Trustee in writing, of the Default and the
Company and the Guarantor do not cure the Default within 30 days after receipt
of such notice. The written notice must specify the Default, demand that it be
remedied and state that the notice is a "NOTICE OF DEFAULT."
Section 4.02. Acceleration. If any Event of Default (other than an Event of
Default specified in clause (viii) or (ix) of Section 4.01 hereof) occurs and is
continuing, the Trustee by notice to the Company and the Guarantor, or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities by written notice to the Company, the Guarantor and the Trustee, may
declare the unpaid principal of, premium, if any, and any accrued and unpaid
interest on all the Securities to be due and payable immediately; provided that
for so long as the Company Credit Agreement is in effect, such declaration shall
not become effective until the earlier of (i) five Business Days after receipt
of the written notice declaring the Securities to be due and payable immediately
by the Administrative Agent and the Documentation Agent under the Company Credit
Agreement or (ii) acceleration of the Indebtedness under the Company Credit
Agreement. Except as set forth above, upon such declaration the principal of,
premium, if any, and interest shall be due and payable immediately. If an Event
of Default specified in clause (viii) or (ix) of Section 4.01
70
hereof occurs with respect to the Company, the Guarantor or any Significant
Subsidiary of the Guarantor, the unpaid principal of, premium, if any, and any
accrued and unpaid interest on all the Securities shall ipso facto become and be
immediately due and payable without further action or notice on the part of the
Trustee or any Holder.
Section 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Securities or to enforce the performance of any
provision of the Securities (including the Guarantee) or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquies cence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 4.04. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Securities then outstanding by
written notice to the Trustee may on behalf of the Holders of all of the
Securities waive any existing Default or Event of Default and its consequences
under this Indenture except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security. 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 thereon.
Section 4.05. Control by Majority. Holders of a majority in aggregate
principal amount of the then outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture that
the Trustee determines may be unduly prejudicial to the rights of other Holders
or that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper which is not inconsistent with any such
direction.
Section 4.06. Limitation on Suits. A Holder may pursue a remedy with
respect to this Indenture or the Securities (including the Guarantee) only if:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
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(ii) the Holders of at least 25% in aggregate principal amount of
the then outstanding Securities make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(v) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Securities do not give
the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder
or to obtain a preference or priority over another Holder.
Section 4.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Security (including the
Guarantee), on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
Section 4.08. Collection Suit by Trustee. If an Event of Default specified
in Section 401(i) or (ii) hereof occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company or the Guarantor or any other obligor for the whole
amount of principal, premium, if any, and interest remaining unpaid on the
Securities (including the Guarantee) and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover amounts due the Trustee under Section 507 hereof, including the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 4.09. Trustee May File Proofs of Claim. The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company or the Guarantor (or any other obligor upon
the Securities), its creditors
72
or its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 507 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 507
hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties which
the Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 4.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 507, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 410 upon five Business Days prior notice to the
Company and the Guarantor.
Section 4.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the
73
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 407 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Securities.
ARTICLE 5
Concerning the Trustee
Section 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) 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 circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which the Trustee has
actual notice and after the curing or waiving of all such Events of Default
which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the
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Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Securities at the
time outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
This Section 501 is in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act of 1939.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject
to the Trust Indenture Act of 1939, and subject to Section 501:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Company or Guarantor, as the case may be;
(c) the Trustee may consult with counsel of its selection and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder, of which the
Trustee has actual notice, and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Company or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder; and
(h) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities (including the Guarantee), except the Trustee's certificates
of authentication, shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee
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makes no representation as to the validity or sufficiency of this Indenture or
of the Securities or the Guarantee. The Trustee shall not be accountable for the
use or application by the Company or Guarantor of any of the Securities or of
the proceeds thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Company, the Guarantor or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Company or the Guarantor and receive, collect, hold
and retain collections from the Company with the same rights it would have if it
were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section
1206 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Company or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
Section 5.06. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is actually
known to a responsible officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in Trust Indenture Act Section
313(c) notice of the Default or Event of Default within 45 days after it occurs,
unless such Default or Event of Default has been cured; provided, however, that,
except in the case of a default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders.
Section 5.07. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company and the Guarantor, jointly and severally, covenant and agree
to pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as shall be agreed in writing among the Company, the Guarantor
and the Trustee (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the Company and the
Guarantor, jointly and severally, covenant and agree to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in
77
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company and the Guarantor, jointly and
severally, also covenant to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Company and the Guarantor, under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities and
the Guarantee upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Securities, and the Securities and the Guarantee are hereby subordinated to such
senior claim.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 401 or Section 401, the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
Section 5.08. Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 501 and 502, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 5.09. Persons Eligible for Appointment as Trustee. The Trustee
hereunder shall at all times be a corporation having a combined capital and
surplus of at least $100,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall
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be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
Section 5.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee may at any time resign by giving written notice of resignation
to the Company and the Guarantor. Upon receiving such notice of resignation, the
Company or the Guarantor shall promptly appoint a successor trustee by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning trustee may petition, at the expense of the
Company and the Guarantor, any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written request
therefor by the Company, the Guarantor or by any Securityholder who has
been a bona fide holder of a Security or Securities for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 509 and shall fail to resign after written
request therefor by the Company, the Guarantor or by any such
Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company or the Guarantor may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors of the Company or the Guarantor, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act
of 1939, any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of
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a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company and the Guarantor the evidence
provided for in Section 601 of the action in that regard taken by the
Securityholders.
If no successor trustee shall have been so appointed and have accepted
appointment 30 days after the mailing of such notice of removal, the trustee
being removed may petition, at the expense of the Company and the Guarantor, any
court of competent jurisdiction for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 510 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 511.
Section 5.11 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 510 shall execute and deliver to the
Company and the Guarantor and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company and the Guarantor or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
1206, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company and the Guarantor shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 507.
Upon acceptance of appointment by a successor trustee as provided in this
Section 511, the Company shall mail notice thereof by first-class mail to the
holders of Securities at their last addresses as they shall appear in the
Security register. If the
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acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 510. If the Company fails to mail such notice
within 10 days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 5.12. Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or to which the Trustee's assets may be sold,
or any corporation resulting from any merger, conversion, consolidation or sale
to which the Trustee shall be a party or by which the Trustee's property may be
bound, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
509, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities (including the Guarantee)
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities (including the Guarantee) so authenticated; and, in
case at that time any of the Securities (including the Guarantee) shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities (including the Guarantee) either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities
(including the Guarantee) or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities
(including the Guarantee) in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 5.13. Preferential Collection of Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b) (4) and
(6) of such Act, the following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, xxxx of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company or the
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Guarantor for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or the Guarantor, as the case may be,
arising from the making, drawing, negotiating or incurring of the draft, xxxx of
exchange, acceptance or obligation.
ARTICLE 6
Concerning the Holders
Section 6.01. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
501 and 502) conclusive in favor of the Trustee, the Company and the Guarantor,
if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities;
Record Date. Subject to Sections 501 and 502, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the Registrar thereof.
The Company may set a record date for purposes of determining the identity of
holders of Securities entitled to vote or consent to any action referred to in
Section 601, which record date may be set at any time or from time to time by
notice to the Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only holders of Securities of record on such record date
shall be entitled to so vote or give such consent or to withdraw such vote or
consent.
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Section 6.03. Securities Owned by Company or Guarantor Deemed Not
Outstanding. In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company, the
Guarantor or any other obligor on the Securities or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, the Guarantor or any other obligor on the Securities
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, the Guarantor or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, the Guarantor or any
other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officer's Certificate listing
and identifying all Securities, if any, known by the Company or the Guarantor to
be owned or held by or for the account of any of the above-described persons;
and, subject to Sections 501 and 502, the Trustee shall be entitled to accept
such Officer's Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are outstanding for the
purpose of any such determination.
Section 6.04. Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 601, of the
taking of any action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security
(including the Guarantee) and of any Securities (including the Guarantee) issued
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security (including the
Guarantee). Any action taken by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Guarantor,
the Trustee and the holders of all the Securities.
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ARTICLE 7
Supplemental Indentures
Section 7.01. Supplemental Indentures Without Consent of Holders. The
Company, the Guarantor and the Trustee may amend or supplement this Indenture or
the Securities and the Guarantee without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iii) to provide for any supplemental indenture required pursuant to
Section 316 hereof;
(iv) to provide for the assumption of the Company's or the
Guarantor's obligations to the Holders of the Securities in the case of any
transaction pursuant to Article 8 hereof;
(v) to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect
the legal rights hereunder of any such Holder; or
(vi) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture
Act.
Upon the request of the Company and the Guarantor accompanied by a
resolution of their respective Board of Directors authorizing the execution of
any such supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 704 hereof, the Trustee shall join with the
Company and the Guarantor 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 such supplemental indenture which
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 7.02. With Consent of Holders. Except as provided in the next
succeeding paragraphs, this Indenture or the Securities (including the
Guarantee) may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for such Securities), and any existing default or compliance with
any provision of this Indenture or the
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Securities (including the Guarantee) may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for such Securities).
Upon the request of the Company and the Guarantor accompanied by a
resolution of their respective Board of Directors authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 704
hereof, the Trustee shall join with the Company and the Guarantor in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
702 to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Subject to Sections 404 and 407 hereof, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may waive compliance in a
particular instance by the Company or the Guarantor with any provision of this
Indenture or the Securities. Without the consent of each Holder affected,
however, an amendment or waiver may not (with respect to any Security held by a
non-consenting Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Security (other than provisions relating to the covenants described under
310 and 317);
(iii) reduce the rate of or change the time for payment of interest
on any Security;
(iv) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Securities (except a rescission
of acceleration of the Securities by the Holders of at least a majority in
aggregate
85
principal amount thereof and a waiver of the payment default that resulted
from such acceleration);
(v) make any Security payable in money other than that stated in
the Securities;
(vi) make any change in Section 404 or 407 hereof;
(vii) waive a redemption payment with respect to any Security (other
than a payment described by Section 310 or 317);
(viii) modify the ranking or priority of the Securities or the
Guarantee or modify the definition of Senior Debt or Designated Senior Debt
or amend or modify Article 9 in any manner adverse to the Holders; or
(ix) make any change in this sentence of this Section 702.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company, the Guarantor and the holders
of Securities (including the Guarantee) shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 7.04. Documents to Be Given to Trustee; Compliance with TIA. The
Trustee, subject to the provisions of Sections 501 and 502, may receive an
Officer's Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture. Every such supplemental indenture shall comply with the TIA.
Section 7.05. Notation on Securities in Respect of Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation
approved by the Trustee as to form (but not as to substance) as to any matter
provided for by such supplemental indenture or as to any action taken at any
such meeting. If the Company, the Guarantor or the Trustee shall so determine,
new Securities (including the Guarantee) so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company and the
Guarantor, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company or the
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Guarantor, authenticated by the Trustee and delivered in exchange for the
Securities then outstanding.
ARTICLE 8
Consolidation, Merger or Sale of Assets
Section 8.01. When the Company or the Guarantor May Merge, Etc. Neither the
Company nor the Guarantor will consolidate or merge with or into (whether or not
the Company or the Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company or of the Guarantor in one or more related
transactions, to another corporation, Person or entity unless (i) the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company or the Guarantor, as
applicable) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (the "SURVIVING ENTITY") is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the Surviving Entity assumes all the obligations
of the Company or the Guarantor, as the case may be, under the Securities or the
Guarantee, as applicable, and the Indenture pursuant to a supplemental Indenture
in form reasonably satisfactory to the Trustee; (iii) immediately before and
after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company or the Guarantor, as applicable, as a
result of such transaction as having been incurred by the Company or the
Guarantor, as applicable, at the time of the transaction, no Default or Event of
Default shall have occurred and be continuing; and (iv) the Company or the
Guarantor, as applicable, or the Surviving Entity (A) will have Consolidated Net
Worth immediately after the transaction and prior to any purchase accounting
adjustments equal to or greater than the Consolidated Net Worth of the Company
or the Guarantor, as applicable, immediately preceding the transaction and (B)
will, at the time of such transaction and after giving pro forma effect thereto
as if such transaction had occurred at the beginning of the applicable four-
quarter period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 309.
Section 8.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or the
Guarantor, as applicable, in accordance with Section 801 hereof, the successor
corporation formed by such consolidation or into or with which the Company or
the Guarantor, as applicable, is merged or to which such sale, assignment,
transfer, lease, conveyance or other
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disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture referring to
the "COMPANY" or the "GUARANTOR," as applicable, shall refer instead to the
successor corporation), and may exercise every right and power of, the Company
or the Guarantor, as applicable, under this Indenture with the same effect as if
such successor Person had been named as the Company herein.
Notwithstanding the foregoing, (i) a consolidation or merger by the Company
or the Guarantor with or into, or (ii) the sale, assignment, transfer, lease,
conveyance or other disposition by the Company or the Guarantor of all or
substantially all of their respective property or assets to, one or more of
their Subsidiaries shall not relieve either the Company or the Guarantor from
their respective obligations under this Indenture, the Securities and the
Guarantee.
Section 8.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 501 and 502, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, sale,
transfer, lease, exchange or other disposition complies with the applicable
provisions of this Indenture.
ARTICLE 9
Subordination
Section 9.01. Agreement to Subordinate. The Company and the Guarantor
agree, and each Holder by accepting a Security and Guarantee agrees, any
provision of this Indenture, the Securities or the Guarantee to the contrary
notwithstanding, that all Obligations owed under and in respect of the
Securities and the Guarantee are subordinated in right of payment, to the extent
and in the manner provided in this Article 9, to the prior payment in full in
cash of all Obligations owed under and in respect of all Senior Debt of the
Company and the Guarantor, and that the subordination of the Securities and the
Guarantee pursuant to this Article 9 is for the benefit of all holders of all
Senior Debt of the Company and the Guarantor, whether outstanding on the Closing
Date or incurred thereafter.
Section 9.02. Liquidation; Dissolution; Bankruptcy. (a) Upon any
distribution of cash, securities or other property of the Company or the
Guarantor to creditors upon any Insolvency or Liquidation Proceeding with
respect to the Company or the Guarantor, the holders of any Senior Debt of the
Company or the Guarantor, as the case may be, will be entitled to receive
payment in full, in cash or Cash
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Equivalents, of all Obligations due in respect of such Senior Debt (including
Post-Petition Interest and, in the case of all Designated Senior Debt, all
Obligations with respect thereto) before the Holders will be entitled to receive
any payment or distribution with respect to the Securities and the Guarantee
(including payment for the repurchase of Securities upon a Change of Control),
and until all Obligations with respect to such Senior Debt of the Company or the
Guarantor, as the case may be, are paid in full, in cash or Cash Equivalents,
any payment or distribution to which the Holders would be entitled shall be made
to the holders of the Company's or the Guarantor's Senior Debt on a pro rata
basis (except payments made from the trust described in Section 1204 and except
that Holders of the Securities may receive Reorganization Securities).
Upon any Insolvency or Liquidation Proceeding with respect to the Company
or the Guarantor, any payment or distribution of assets of the Company or the
Guarantor of any kind or character, whether in cash, securities or other
property, to which the Holders or the Trustee would be entitled except for the
provisions of this Indenture shall be paid by the Company or the Guarantor, any
paying agent or other Person making such payment or distribution, or by the
Holders or by the Trustee if received by them, directly to the holders of the
Company's or the Guarantor's Senior Debt (pro rata to such holders on the basis
of the amounts of the Obligations due in respect of the Senior Debt held by
them) or their representatives, as their interests may appear, for application
to the payment of all Obligations due in respect of such Senior Debt (including
Post-Petition Interest and, in the case of all Designated Senior Debt, all
Obligations with respect thereto) until all such Obligations have been paid in
full in cash, after giving effect to all other payments or distributions to, or
provisions made for, holders of the Company's or the Guarantor's Senior Debt.
(b) A distribution may consist of cash, securities or other property, by
set-off or otherwise. For purposes of this Article 9, the words "cash,
securities or other property" shall not include any distribution of securities
of the Company or the Guarantor or any other corporation provided for in any
reorganization proceeding under any Bankruptcy Law if (i) such securities
constitute Reorganization Securities, (ii) such distribution was authorized by
an order or decree of a court of competent jurisdiction, and (iii) such order
gives effect to (and states in such order or decree that effect has been given
to) the subordination of such securities to all Senior Debt of the Company or
the Guarantor not paid in full in connection with such reorganization; provided
that (a) all such Senior Debt is assumed by the reorganized corporation, and (b)
the rights of the holders of any such Senior Debt are not, without the consent
of such holders, altered by such reorganization, which consent shall be deemed
to have been given if the holders of such Senior Debt (or their representative),
individually or as a class, shall have approved such reorganization.
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(c) Notwithstanding anything to the contrary in Section 902, Holders of
Securities may continue to receive payments from the trust established pursuant
to Section 1204.
Section 9.03. Default on Designated Senior Debt. Neither the Company nor
the Guarantor may make any payment upon or in respect of the Securities or the
Guarantee (except in such subordinated securities as described in Section 902 or
from the trust established pursuant to Section 1204) if (i) a Payment Default on
Designated Senior Debt occurs and is continuing beyond any applicable period of
grace or (ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt as to
which such default relates to accelerate its maturity and the Trustee receives a
notice of such default (a "PAYMENT BLOCKAGE NOTICE") from the Company, the
Guarantor or any Representative of any Designated Senior Debt. Payments on the
Securities or the Guarantee may be resumed and all past due amounts on the
Securities shall be paid (a) in the case of a Payment Default, upon the date on
which such default is cured or waived and (b) in case of a nonpayment default,
upon the earlier of (1) the date on which such nonpayment default is cured or
waived or (2) 179 days after the date on which the applicable Payment Blockage
Notice is received, in each case, unless the maturity of any Designated Senior
Debt has been accelerated and the Company or the Guarantor has defaulted with
respect to the payment of such Designated Senior Debt. No new period of payment
blockage may be commenced unless and until 360 days have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment
default that existed or was continuing on the date any Payment Blockage Notice
was given shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
Section 9.04. When Distributions Must Be Paid Over. If the Company or the
Guarantor shall make any payment to the Trustee on account of the principal of,
or premium, if any, or interest on, the Securities, or any other Obligation in
respect of the Securities or the Guarantee, or the Holders shall receive from
any source any payment on account of the principal of, premium, if any, or
interest on, the Securities, the Guarantee or any Obligation in respect of the
Securities or the Guarantee, at a time when such payment is prohibited by this
Article 9, the Trustee or such Holders shall hold such payment in trust for the
benefit of, and shall pay over and deliver to, the holders of the Company's or
the Guarantor's Senior Debt (pro rata as to each of such holders on the basis of
the respective amounts of such Senior Debt held by them) or their
representative, as their respective interests may appear, for application to the
payment of all outstanding Senior Debt of the Company or the Guarantor until all
such Senior Debt has been paid in full in cash, after giving effect to all other
payments or distributions to, or provisions made for, the holders of the
Company's Senior Debt.
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With respect to the holders of Senior Debt of the Company or the Guarantor,
the Trustee undertakes to perform only such obligations on its part as are
specifically set forth in this Article 9, and no implied covenants or
obligations with respect to any holders of the Company's or the Guarantor's
Senior Debt shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of the Company's or
the Guarantor's Senior Debt, and shall not be liable to any holders of such
Senior Debt if the Trustee shall pay over or distribute to, or on behalf of,
Holders or the Company, the Guarantor or any other Person, money or assets to
which any holders of such Senior Debt are entitled pursuant to this Article 9,
except if such payment is made at a time when a Trust Officer has actual
knowledge that the terms of this Article 9 prohibit such payment.
Section 9.05. Notice. Neither the Trustee nor the paying agent shall at any
time be charged with the knowledge of the existence of any facts that would
prohibit the making of any payment to or by the Trustee or paying agent under
this Article 9 unless and until the Trustee or paying agent shall have received
written notice thereof from the Company or the Guarantor or one or more holders
of the Company's or the Guarantor's Senior Debt or a Representative of any
holders of such Senior Debt; and, prior to the receipt of any such written
notice, the Trustee or paying agent shall be entitled to assume conclusively
that no such facts exist. The Trustee shall be entitled to rely on the delivery
to it of written notice by a Person representing itself to be a holder of the
Company's or the Guarantor's Senior Debt (or a Representative thereof) to
establish that such notice has been given.
The Company and the Guarantor shall promptly notify the Trustee and the
paying agent in writing of any facts it knows that would cause a payment of
principal of, premium, if any, or interest on, the Securities, the Guarantee or
any other Obligation in respect of the Securities to violate this Article 9, but
failure to give such notice shall not affect the subordination of the Securities
or the Guarantee to the Senior Debt of the Company and the Guarantor provided in
this Article 9 or the rights of holders of such Senior Debt under this Article
9.
Section 9.06. Subrogation. After all Senior Debt of the Company and the
Guarantor has been paid in full in cash and until the Securities are paid in
full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari-passu with the Securities) to the rights of holders of such
Senior Debt to receive distributions applicable to such Senior Debt to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of such Senior Debt. A distribution made under this Article 9 to
holders of the Company's or the Guarantor's Senior Debt that otherwise would
have been made to Holders is not, as between the Company or the Guarantor, as
the case may be, and Holders, a payment by the Company or the Guarantor on its
Senior Debt.
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Section 9.07. Relative Rights. This Article 9 defines the relative rights
of Holders and holders of the Company's or the Guarantor's Senior Debt. Nothing
in this Indenture shall: (1) impair, as between the Company, the Guarantor and
Holders, the Company's or the Guarantor's Obligations, which are absolute and
unconditional, to pay principal of, premium, if any, and interest on the
Securities (including the Guarantee) in accordance with their terms; (2) affect
the relative rights of Holders and the Company's or the Guarantor's creditors
other than their rights in relation to holders of the Company's or the
Guarantor's Senior Debt; or (3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event of Default, subject to
the rights of holders of the Company's or the Guarantor's Senior Debt to receive
distributions and payments otherwise payable to Holders.
The failure to make a payment on account of principal of or interest on the
Securities or the Guarantee by reason of any provision of this Article 9 shall
not be construed as preventing the occurrence of an Event of Default under
Section 401.
Section 9.08. The Company, the Guarantor and Holders May Not Impair
Subordination. (a) No right of any holder of the Company's or the Guarantor's
Senior Debt to enforce the subordination as provided in this Article 9 shall at
any time or in any way be prejudiced or impaired by any act or failure to act by
the Company, the Guarantor or by any noncompliance by the Company or the
Guarantor with the terms, provisions and covenants of this Indenture, the
Securities, the Guarantee or any other agreement regardless of any knowledge
thereof with which any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 908, the holders of any Senior
Debt of the Company or the Guarantor may, at any time and from time to time to
the extent not otherwise prohibited by this Indenture, without the consent of or
notice to any Holders, without incurring any liabilities to any Holder and
without impairing or releasing the subordination and other benefits provided in
this Indenture or the Holders' obligations to the holders of such Senior Debt,
even if any Holder's right of reimbursement or subrogation or other right or
remedy is affected, impaired or extinguished thereby, do any one or more of the
following: (i) amend, renew, exchange, extend, modify, increase or supplement in
any manner such Senior Debt or any instrument evidencing or guaranteeing or
securing such Senior Debt or any agreement under which such Senior Debt is
outstanding (including, but not limited to, changing the manner, place or terms
of payment or changing or extending the time of payment of, or renewing,
exchanging, amending, increasing or altering, (1) the terms of such Senior Debt,
(2) any security for, or any Guarantee of, such Senior Debt, (3) any liability
of any obligor on such Senior Debt (including any guarantor) or any liability
incurred in respect of such Senior Debt) (ii) sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in any
order any property pledged, mortgaged or otherwise securing such Senior Debt or
any liability
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of any obligor thereon, to such holder, or any liability incurred in respect
thereof; (iii) settle or compromise any such Senior Debt or any other liability
of any obligor of such Senior Debt to such holder or any security therefor or
any liability incurred in respect thereof and apply any sums by whomsoever paid
and however realized to any liability (including, without limitation, payment of
any of the Company's or the Guarantor's Senior Debt) in any manner or order; and
(iv) fail to take or to record or otherwise perfect, for any reason or for no
reason, any lien or security interest securing such Senior Debt by whomsoever
granted, exercise or delay in or refrain from exercising any right or remedy
against any obligor or any guarantor or any other Person, elect any remedy and
otherwise deal freely with any obligor and any security for such Senior Debt or
any liability of any obligor to the holders of such Senior Debt or any liability
incurred in respect of such Senior Debt.
(c) Each Holder by accepting a Security (including the Guarantee) agrees
not to compromise, release, forgive or otherwise discharge the Company's or the
Guarantor's Obligations with respect to such Holder's Security (including the
Guarantee) unless holders of a majority of the outstanding amount of each class
of Senior Debt consent to such compromise, release, forgiveness or discharge.
Section 9.09. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Debt of the
Company or the Guarantor, the distribution may be made and the notice given to
their Representative, if any. If any payment or distribution of the Company's
or the Guarantor's assets is required to be made to holders of any of the
Company's or the Guarantor's Senior Debt pursuant to this Article 9, the Trustee
and the Holders shall be entitled to rely upon any order or decree of any court
of competent jurisdiction, or upon any certificate of a Representative of such
Senior Debt or a Custodian, in ascertaining the holders of such Senior Debt
entitled to participate in any such payment or distribution, the amount to be
paid or distributed to holders of such Senior Debt and all other facts pertinent
to such payment or distribution or to this Article 9.
Section 9.10. Rights of Trustee and Paying Agent. The Trustee or paying
agent may continue to make payments on the Securities unless prior to any
payment date it has received written notice of facts that would cause a payment
of principal of, or premium, if any, or interest on, the Securities to violate
this Article 9. Only the Company, the Guarantor, a representative of Senior
Debt, or a holder of Senior Debt that has no representative may give such
notice.
To the extent permitted by the TIA, the Trustee in its individual or any
other capacity may hold Indebtedness of the Company or the Guarantor (including
Senior Debt) with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
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Nothing in this Article 9 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 507.
Section 9.11. Authorization to Effect Subordination. Each Holder of a
Security (including the Guarantee) by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 9, and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes (including, without limitation, the timely filing of a claim for the
unpaid balance of the Security that such Holder holds in the form required in
any Insolvency or Liquidation Proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such proceeding
is not filed by or on behalf of all Holders prior to 30 days before the
expiration of the time to file such claims or proofs, then the holders or a
representative of any Senior Debt of the Company or the Guarantor are hereby
authorized, and shall have the right (without any duty), to file an appropriate
claim for and on behalf of the Holders.
Section 9.12. Payment. A payment on account of or with respect to any
Security (including the Guarantee) shall include, without limitation, any
Additional Interest or, in the case of any payment after May 15, 2002,
principal, premium or interest with respect to or in connection with any
optional redemption or purchase provisions, any direct or indirect payment
payable by reason of any other Indebtedness or Obligation being subordinated to
the Securities or the Guarantee, and any direct or indirect payment or recovery
on any claim as a Holder relating to or arising out of this Indenture or any
Security (including the Guarantee), or the issuance of any Security (including
the Guarantee), or the transactions contemplated by this Indenture or referred
to herein.
ARTICLE 10
Guarantee
Section 10.01. Guarantee. (a) The Guarantor hereby irrevocably and
unconditionally guarantees to each Securityholder and to the Trustee on behalf
of each Securityholder the due and punctual payment of the principal of,
premium, if any and interest on, and all other amounts payable under, each
Security provided for pursuant to this Indenture and the terms of such Security
when and as the same shall become due and payable, whether on the stated
maturity, upon acceleration, by call for redemption, upon repurchase or purchase
following a Change of Control Offer or an Asset Sale Offer or otherwise, in
accordance with the terms of such Security and of this Indenture. The Guarantor
hereby expressly waives (i) any right to which it may be entitled to require the
Trustee or any Securityholder to pursue or exhaust their
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respective legal or equitable remedies against the Company prior to exercising
their respective rights under the Guarantee of the Guarantor and (ii) any right
to which it may be entitled to have the assets of the Company first be used as
payment of the Company's or the Guarantor's obligations prior to any amounts
being claimed from or paid by the Guarantor hereunder. The Guarantee will not be
discharged with respect to any Security except by payment in full of the
principal thereof, premium, if any, and interest thereon and all other amounts
payable thereunder. In case of the failure of the Company punctually to pay any
such principal, premium, interest or other amounts payable, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether on the stated maturity, by acceleration,
call for redemption, upon a repurchase or purchase following a Change of Control
Offer or an Asset Sale Offer or otherwise, and as if such payment were made by
the Company.
(b) The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal obligor and not merely surety, and shall be absolute and
unconditional and enforceable, irrespective of, and unaffected by, any
invalidity, irregularity or unenforceability of any Security or this Indenture,
any failure to enforce the provisions of any Security or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Securityholders or the Trustee, or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor;
provided that, notwithstanding the foregoing, no such waiver, modification,
indulgence or circumstance shall without the written consent of the Guarantor
increase the principal amount of a Security or the interest rate thereon or
change the currency of payment with respect to any Security, or alter the stated
maturity thereof. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company
(including, for the avoidance of doubt, any right which the Guarantor may have
to require the seizure and sale of the assets of the Company to satisfy the
outstanding principal of, interest on or any other amounts payable under each
Security prior to recourse against the Guarantor or its assets), protest or
notice with respect to any Security or the Indebtedness evidenced thereby and
all demands whatsoever, and covenants that the Guarantee of the Guarantor will
not be discharged with respect to any Security except by payment in full of the
principal thereof and interest thereon. If at any time any payment of principal
of and interest on such Security is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Company, the
Guarantor's obligations hereunder with respect to such payment shall be
reinstated as of the date of such rescission, restoration or return as though
such payment had become due but had not been made at such time.
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(c) All Obligations owed under and in respect of the Guarantee are
subordinated in right of payment, to the extent and in the manner provided in
Article 9.
Section 10.02. Subrogation. The Guarantor shall be subrogated to all rights
of the Securityholder against the Company in respect of any amounts paid to such
Securityholder by the Guarantor pursuant to the provisions of the Guarantee.
ARTICLE 11
Redemption of Securities
Section 11.01. Right of Optional Redemption; Prices. On or after May 1,
2002, the Company at its option may, at any time, redeem all, or from time to
time any part of, the Securities upon payment of the optional redemption prices
set forth in the form of Security hereinabove recited, together with accrued and
unpaid interest to the date fixed for redemption.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall identify the Securities
to be redeemed (including CUSIP numbers) and shall specify the principal amount
of each Security held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will be
issued.
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The notice of redemption of Securities to be redeemed at the option of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
No later than 10:00 a.m. on the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more paying agents (or, if the Company is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
304) an amount of money sufficient to redeem on the redemption date all the
Securities so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Company
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select, either pro rata, by lot or by any other method it shall deem fair and
reasonable, Securities to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of $1,000 only. The Trustee shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company or the Guarantor shall default in the payment of such
Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue and, except as provided in Sections 505 and 1206, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on the date fixed
for redemption shall
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be payable to the holders of such Securities registered as such on the relevant
Interest Record Date subject to the terms and provisions of Section 204 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate borne by the
Security.
Upon presentation of any Security redeemed in part only, the Company and
the Guarantor shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the expense
of the Company and the Guarantor, a new Security or Securities, with the
Guarantee endorsed thereon, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or the Guarantor or (b) an
entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or the Guarantor.
ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.01. Company's and Guarantor's Option to Effect Defeasance or
Covenant Defeasance. The Company and the Guarantor may, at their option, by
resolution of the Board of Directors, at any time, elect to have either Section
1202 or Section 1203 applied to the outstanding Securities and the Guarantee
upon compliance with the conditions set forth below in this Article 12.
Section 12.02. Legal Defeasance and Discharge. Upon the Company's and the
Guarantor's exercise under Section 1201 hereof of the option applicable to this
Section 1202, the Company and the Guarantor shall be deemed to have been
discharged from their Obligations with respect to all outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company and
the Guarantor shall be deemed to have paid and discharged the entire
Indebtedness represented by the
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outstanding Securities (including the Guarantee), which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 1205 hereof and the
other Sections of this Indenture referred to in clauses (i) and (ii) of this
Section 1202, and to have satisfied all its other obligations under such
Securities (including the Guarantee) and this Indenture (and the Trustee, on
demand of and at the expense of the Company and the Guarantor, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in Section 1204 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, (ii) the Company's and the
Guarantor's obligations with respect to such Securities under Sections 201, 202,
205, 206, 207, 208, 209, 211, 301, 304 and 1205 hereof, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 507 hereof, and the
Company's and the Guarantor's obligations in connection therewith and with this
Article 12. Subject to compliance with this Article 12, the Company and the
Guarantor may exercise their option under this Section 1202 notwithstanding the
prior exercise of its option under Section 1203 hereof with respect to the
Securities.
Section 12.03. Covenant Defeasance. Upon the Company's and the Guarantor's
exercise under Section 1201 hereof of the option applicable to this Section
1203, the Company and the Guarantor shall be released from their obligations
under the covenants contained in Sections 308 through 317 and clause (iv) of
Section 801 hereof with respect to the outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Securities and the Guarantee shall thereafter be deemed
not outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed outstanding for
all other purposes hereunder. For this purpose, such Covenant Defeasance means
that, with respect to the outstanding Securities, the Company and the Guarantor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 401(iii) or (iv) hereof, but, except as
specified above, the remainder of this Indenture, such Securities and such
Guarantee shall be unaffected thereby. In addition, upon the Company's and the
Guarantor's exercise under Section 1201 hereof of the option applicable to this
Section 1203, Sections 401(v) and 401(vii) hereof shall not constitute Events of
Default.
99
Section 12.04. Conditions to Legal or Covenant Defeasance. The following
shall be the conditions to application of either Section 1202 or Section 1203
hereof to the outstanding Securities:
(i) The Company or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 510 who shall agree to comply with the
provisions of this Article 12 applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (a) cash in U.S. Dollars in an amount, or (b) non-callable
Government Securities that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, cash in U.S.
Dollars in an amount, or (c) a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge the
principal of, premium, if any, and interest on such outstanding Securities
on the stated maturity date of such principal or installment of principal,
premium, if any, or interest.
(ii) In the case of an election under Section 1202 hereof, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel confirming that (a) the Company or the Guarantor has received from,
or there has been published by, the Internal Revenue Service a ruling or
(b) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred.
(iii) In the case of an election under Section 1203 hereof, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred.
100
(iv) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as Section 401(viii) or 401(ix) hereof is concerned, at any time in
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(v) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Guarantor
or any of its Restricted Subsidiaries is a party or by which the Guarantor
or any of its Restricted Subsidiaries is bound (other than a breach,
violation or default resulting from the borrowing of funds to be applied to
such deposit).
(vi) The Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(vii) The Company or the Guarantor shall have delivered to the
Trustee an Officer's Certificate stating that the deposit made by the
Company or the Guarantor pursuant to its election under Section 1202 or
1203 hereof was not made by the Company or the Guarantor with the intent of
preferring the Holders of the Securities over the other creditors of the
Company or the Guarantor with the intent of defeating, hindering, delaying
or defrauding creditors of the Company, the Guarantor or others.
(viii) The Company or the Guarantor shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 1202 hereof or the Covenant Defeasance under
Section 1203 hereof (as the case may be) have been complied with as
contemplated by this Section 1204.
Section 12.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 1206 hereof, all money
and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 1204 hereof in respect of the
outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any paying agent (including the Company or
the Guarantor acting as paying agent) as the Trustee may determine, to the
Holders of such Securities of all sums due
101
and to become due thereon in respect of principal of, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company or the Guarantor shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or non-
callable Government Securities deposited pursuant to Section 1204 hereof or the
principal 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 Securities.
Anything in this Article 12 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company or the Guarantor from time to time upon the
Company's or the Guarantor's request any money or non-callable Government
Securities held by it as provided in Section 1204 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 1204(i) hereof), 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 12.06. Repayment to the Company or the Guarantor. Any money
deposited with the Trustee or any paying agent, or then held by the Company or
the Guarantor, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company or the Guarantor on its written request or (if then held by the
Company or the Guarantor) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company or the Guarantor for payment thereof, and all liability of the
Trustee or such paying agent with respect to such trust money, and all liability
of the Company or the Guarantor as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), 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
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company or the Guarantor.
Section 12.07. Reinstatement. If the Trustee or paying agent is unable to
apply any U.S. Dollars or non-callable Government Securities in accordance with
Section 1202 or 1203 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's or the Guarantor's
obligations under this
102
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1202 or 1203 hereof until such time as
the Trustee or paying agent is permitted to apply all such money in accordance
with Section 1202 or 1203 hereof, as the case may be; provided, however, that,
if the Company or the Guarantor makes any payment of principal of, premium, if
any, or interest on any Security following the reinstatement of its obligations,
the Company or the Guarantor shall be subrogated to the rights of the Holders of
such Security to receive such payment from the money held by the Trustee or
paying agent.
ARTICLE 13
Miscellaneous Provisions
Section 13.01. Incorporators, Stockholders, Officers and Directors of
Company and the Guarantor Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security or Guarantee, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the Company or the
Guarantor or of any successor, either directly or through the Company or the
Guarantor or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities and the Guarantee by the holders thereof and
as part of the consideration for the issue of the Securities and the Guarantee.
Section 13.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders. Except as set forth in Section 1309, nothing in this Indenture or in
the Securities or the Guarantee, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
hereto and their successors and the holders of the Securities and the Guarantee,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
holders of the Securities.
Section 13.03. Successors and Assigns of Company and Guarantor Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company or the Guarantor shall bind
their successors and assigns, whether so expressed or not.
103
Section 13.04. Notices and Demands on Company, Guarantor, Trustee and
Holders. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities and the Guarantee to or on the Company or the Guarantor may be given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Company or the Guarantor is filed by the Company or the Guarantor with the
Trustee) to Vencor, Inc., 0000 Xxxxxxxxx Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Secretary, with a copy to the Director of
Finance. Any notice, direction, request or demand by the Company, the Guarantor
or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. The Trustee may waive notice
to it of any provision herein, and such waiver shall be deemed to be for its
convenience and discretion. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company, the Guarantor
and Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 13.05. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company or the
Guarantor to the Trustee to take any action under any of the provisions of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision
104
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or Opinion of Counsel may be
based, insofar as it relates to factual matters or information which is in the
possession of the Company or the Guarantor, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company or the
Guarantor, as the case may be, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or the
Guarantor, as the case may be, or of counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company or the Guarantor,
as the case may be, unless such officer or counsel knows that the certificate or
opinion or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
Section 13.06. Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities or the date fixed for
redemption of any Security shall not be a Business Day, then payment of interest
or
105
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.
Section 13.07. Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "INCORPORATED PROVISION"), such incorporated provision shall control.
Section 13.08. New York Law to Govern. This Indenture and each Security
(including the Guarantee) shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
Section 13.09. Third Party Beneficiaries. Holders of Senior Debt of the
Company and the Guarantor are third party beneficiaries of this Indenture, and
any of them (or their representative) shall have the right to enforce the
provisions of this Indenture that benefit such holders.
Section 13.10. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 13.11. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
106
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of April 30, 1998.
VENCOR OPERATING, INC.,
as Company
By_________________________________
Title:
VENCOR, INC.,
as Guarantor
By_________________________________
Title:
PNC BANK, NATIONAL
ASSOCIATION, as Trustee
By_________________________________
Title:
EXHIBIT A
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______, ____
PNC BANK, NATIONAL ASSOCIATION
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: Vencor Operating, Inc. (the "Company")
9 7/8% Guaranteed Senior Subordinated Notes due 2005 (the "Securities")
-----------------------------------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended, and, accordingly, we represent that:
(1) the offer of the Securities and the Guarantee was not made to a person
in the United States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You, the Company and the Guarantor are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:________________________________
Authorized Signature
A-2
CROSS-REFERENCE TARGET LIST
===========================
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION
=============== =========== =============== =========== =============== =========== ===============
1............................ definitions 6.01....... evid. action, securityholders
1.01............... certain terms defined 6.02...... proof of execution instruments
6.03..... securities deemed not outstandg
2......... issue, execution of securities 6.04....... right of revocation of action
2.01........ authentication of securities
2.02............. Execution of Securities 7................ supplemental indentures
2.03....... Certificate of Authentication 7.01..... sup.inden. w/o consent sec.hold
2.04.... form, denomination, date secure. 7.02........................ with.con.hol
2.05................. Restrictive Legends 7.03........... effect of supp. indenture
2.06..... registration transfer, exchange 7.04..... docs. given trustee; comply TIA
2.07.......................... book.entry 7.05...... not. on securities, respect SI
2.07(a).. bookentry provis. global secur.
2.07(b)................. xxxxxxxxx.xxxxxx 8........ consol., merger sale conveyance
2.08......... special transfer provisions 8.01............... when issuer may merge
2.08(e).................. pvt.placemt.leg 8.02......... successor corp. substituted
2.08(f).......................... general 8.03....... opinion of counsel to trustee
2.09........ mutilated, stolen securities
2.10.......... Cancellation of Securities 9.................. article-subordination
2.11................ temporary securities 9.08........................ c&h.no.right
2.12.............. CUSIP and CINS Numbers
10............................. guarantee
3......... covenants of company & trustee
3.01..... payment of principal & interest 11.04....................... excl.cer.sec
3.02.......... offices for payments, etc.
3.03...... appt. to fill vacancy, trustee 12......................... def.&.cov.def
3.04....................... paying agents 12.01............. comp.option.defeasance
3.05............. certificates to trustee 12.02............... defeasance;discharge
3.06............... Securityholders Lists 12.03............................ cov.def
3.07.............. Reports by the Trustee 12.04.................... con.leg.cov.def
3.08..... limitation, restricted payments 12.05................... depo.mon.gov.sec
3.08(b)................ such.Rest.Payment 12.06....................... xxxxx.xx.xxx
3.09.......... Limitation on Indebtedness
3.09(a)(vi)................. xxxxx.xx.Xxx 13.............. miscellaneous provisions
3.10....... disp. proceeds of asset sales 13.01..... individual liability exemption
3.11..... limit liens secur. indebtedness 13.02............ provisions of Indenture
3.12..... limit. on div. restric. subsids 13.03...... successors bound by indenture
3.13....... limit. on conduct of business 13.04................ notices and demands
3.14........ provision of financial info. 13.05..... officers cert. & opin. counsel
3.15..... limit., transactions affiliates 13.06...................... payments due,
3.16............ limitation on guarantees 13.07...... conflict w Inden. Act of 1939
3.17................... change in control 13.08............. New York Law to govern
3.19............................. reports 13.10....................... counterparts
3.19(a)(i)............... reports.so.long 13.11.................. effect of heading
3.20.......... waiver of stay, usury laws
4........ remedies trustee, event default
4.01............ event of default defined
4.01(a)(viii)...... xxx.xxxxxxx.xxxx.xxxx
4.01(a)(ix)...... court.comp.juris.enters
4.04............. waiver of past defaults
4.07...................... xxxxxx.xxx.xxx
4.10.......................... priorities
5................. concerning the trustee
5.01.......... duties of trustee, default
5.02....... certain rights of the trustee
5.03....... trustee not respons. recitals
5.04..... trustee, agents may hold secur.
5.05.............. moneys held by trustee
5.06................... notice of default
5.07..... comp. indem. trustee,priorclaim
5.08...... right trustee rely ofcrs. cert
5.09..... person eligible appoint trustee
5.10.......... appoint. successor trustee
5.11....... acceptance appt. suc. trustee
5.12..... succession to business, trustee
5.13..... preferential collection, claims
6......... concerning the securityholders
TARGET NAME
===========
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
=============== =========== =============== =========== =============== =========== =============== ===========
A-2
