EXHIBIT 4.9
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COVENTRY HEALTH CARE, INC.,
as Issuer
8 1/8% SENIOR NOTES DUE 2012
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INDENTURE
Dated as of February 1, 2002
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FIRST UNION NATIONAL BANK,
as Trustee
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This INDENTURE, dated as of February 1, 2002, is between
Coventry Health Care, Inc., a Delaware corporation (the "Company"), and First
Union National Bank, a national banking association, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the 8 1/8%
Senior Notes due 2012 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
"144A Global Note" means the global note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its nominee
that will be issued in a denomination equal to the outstanding principal amount
of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Debt of a Person outstanding on the date
on which such Person becomes a Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person.
"Additional Assets" means:
(a) any Property (other than cash, Cash Equivalents and
securities) to be owned by the Company or any Restricted Subsidiary and
used in a Related Business; or
(b) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary from any Person other than the
Company or an Affiliate of the Company; provided, however, that, in the
case of clause (b), such Restricted Subsidiary is primarily engaged in
a Related Business.
"Additional Notes" means up to $175,000,000 in aggregate
principal amount of Notes (other than Initial Notes and Exchange Notes) issued
under this Indenture in accordance with Sections 2.02 and 4.09 hereof.
"Affiliate" of any specified Person means:
(a) any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such
specified Person, or
(b) any other Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (a) above.
For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.12 and 4.14 and the definition of "Additional Assets" only,
"Affiliate" shall also mean any beneficial owner of shares representing 5% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
the Company or of rights or warrants to purchase such Voting Stock (whether or
not currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of
(a) any shares of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares), or
(b) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary,
other than, in the case of clause (a) or (b) above,
(1) any disposition by a Restricted Subsidiary
to the Company or by the Company or a Restricted Subsidiary to
a Wholly Owned Restricted Subsidiary,
(2) any disposition that constitutes a Permitted
Investment or Restricted Payment permitted by Section 4.10,
(3) any disposition effected in compliance with
the first paragraph of Section 5.01,
(4) any disposition or series of related
dispositions of Property with an aggregate Fair Market Value,
and for net proceeds, of less than $1.0 million, and
(5) any disposition of cash, Cash Equivalents or
Investment Grade Securities.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, at any date of determination,
(a) if such Sale and Leaseback Transaction is a Capital
Lease Obligation, the amount of Debt represented thereby according to the
definition of "Capital Lease Obligations", and
(b) in all other instances the present value (discounted
at the interest rate borne by the Notes, compounded annually) of the total
obligations of the lessee for rental payments during
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the remaining term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended).
"Average Life" means, as of any date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the product of the numbers of years
(rounded to the nearest one-twelfth of one year) from the date of
determination to the dates of each successive scheduled principal
payment of such Debt or redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by
(b) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal, state or foreign law for the relief of debtors.
"Board of Directors" means Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the applicable Person to have been
duly adopted by the board of directors of such Person and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of Debt represented by such obligation
shall be the capitalized amount of such obligations determined in accordance
with GAAP; and the Stated Maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
For purposes of Section 4.11, a Capital Lease Obligation shall be deemed secured
by a Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company from the issuance or sale (other than to a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of their
employees) by the Company of its Capital Stock (other than Disqualified Stock)
after the Issue Date, net of attorneys' fees, accountants' fees, underwriters'
or placement agents' fees, discounts or commissions and brokerage, consultant
and other fees actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
"Cash Equivalents" means:
(a) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof), having maturities of not
more than one year from the date of acquisition;
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(b) marketable general obligations issued by any state of
the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof (provided that the full faith and
credit of the United States is pledged in support thereof) and, at the
time of acquisition thereof, having one of the two highest credit
ratings obtainable from both S&P's and Xxxxx'x;
(c) certificates of deposit, time deposits, eurodollar
time deposits, overnight bank deposits or bankers' acceptance having
maturities of not more than one year from the date of acquisition
thereof issued by any commercial bank organized in the United States of
America, the long-term debt of which is rated at the time of
acquisition thereof in one of the two highest categories obtainable
from both S&P's and Xxxxx'x, and having combined capital and surplus in
excess of $500.0 million;
(d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(a), (b) and (c) entered into with any bank meeting the qualifications
specified in clause (c) above;
(e) commercial paper rated at the time of acquisition
thereof in one of the two highest categories obtainable from both S&P's
and Xxxxx'x or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease
publishing ratings of investments, and in any case maturing within one
year after the date of acquisition thereof; and
(f) interests in any investment company or money market
fund which invests at least 95% of its assets in instruments of the
type specified in clauses (a) through (e) above.
"Change of Control" means the occurrence of any of the
following events:
(a) if any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act, except that a person will be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of a majority of the total voting power
of the Voting Stock of the Company (for purposes of this clause (a),
such person or group shall be deemed to beneficially own any Voting
Stock of a corporation held by any other corporation (the "parent
corporation") so long as such person or group beneficially owns,
directly or indirectly, in the aggregate a majority of the total voting
power of the Voting Stock of such parent corporation); or
(b) the sale, transfer, assignment, lease, conveyance or
other disposition, directly or indirectly, of all or substantially all
the assets of the Company and the Restricted Subsidiaries, considered
as a whole (other than a disposition of such Property as an entirety or
virtually as an entirety to a Wholly Owned Restricted Subsidiary) shall
have occurred, or the Company merges, consolidates or amalgamates with
into any other Person or any other Person merges, consolidates or
amalgamates with or into the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is
reclassified into or exchanged for cash, securities or other Property,
other than any such transaction where:
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(1) the outstanding Voting Stock of the Company
is reclassified into or exchanged for other Voting Stock of the Company
or for Voting Stock of the surviving corporation, and
(2) the holders of the Voting Stock of the
Company immediately prior to such transaction own, directly or
indirectly, not less than a majority of the Voting Stock of the Company
or the surviving corporation immediately after such transaction and in
substantially the same proportion as before the transaction; or
(c) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors (together with any new directors whose election or
appointment by such Board or whose nomination for election by the
shareholders of the Company was approved by a vote of not less than
three-fourths of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors then in
office; or
(d) the shareholders of the Company shall have approved
any plan of liquidation or dissolution of the Company.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Referenced Treasury Dealer as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any
redemption date:
(a) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
redemption date, as set forth in the most recently published
statistical release designated "H.15(519)" (or any successor release)
published by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities" or
(b) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, the
Reference Treasury Dealer Quotation for such redemption date.
"Consolidated Interest Coverage Ratio" means, as of any date
of determination, the ratio of:
(a) the aggregate amount of EBITDA for the most recent
four consecutive fiscal quarters ending at least 45 days prior to such
determination date to
(b) Consolidated Interest Expense for such four fiscal
quarters;
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provided, however, that:
(1) if
(A) since the beginning of such period
the Company or any Restricted Subsidiary has Incurred
any Debt that remains outstanding or Repaid any Debt,
or
(B) the transaction giving rise to the
need to calculate the Consolidated Interest Coverage
Ratio is an Incurrence or Repayment of Debt,
Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such
Incurrence or Repayment as if such Debt was Incurred or Repaid
on the first day of such period, provided that, in the event
of any such Repayment of Debt, EBITDA for such period shall be
calculated as if the Company or such Restricted Subsidiary had
not earned any interest income actually earned during such
period in respect of the funds used to Repay such Debt, and
(2) if
(A) since the beginning of such period
the Company or any Restricted Subsidiary shall have
made any Asset Sale or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an
acquisition of Property which constitutes all or
substantially all of an operating unit of a business,
(B) the transaction giving rise to the
need to calculate the Consolidated Interest Coverage
Ratio is such an Asset Sale, Investment or
acquisition, or
(C) since the beginning of such period
any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or
any Restricted Subsidiary since the beginning of such
period) shall have made such an Asset Sale,
Investment or acquisition,
EBITDA for such period shall be calculated after giving pro
forma effect to such Asset Sale, Investment or acquisition as
if such Asset Sale, Investment or acquisition occurred on the
first day of such period.
If any Debt bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Debt shall be calculated as
if the base interest rate in effect for such floating rate of interest on the
date of determination had been the applicable base interest rate for the entire
period (taking into account any Interest Rate Agreement applicable to such Debt
if such Interest Rate Agreement has a remaining term in excess of 12 months). In
the event the Capital Stock of any Restricted Subsidiary is sold during the
period, the Company shall be deemed, for purposes of clause (1) above, to have
Repaid during such period the Debt of such Restricted Subsidiary to the extent
the Company and its continuing Restricted Subsidiaries are no longer liable for
such Debt after such sale.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent Incurred by the Company or its Restricted Subsidiaries,
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(a) interest expense attributable to leases constituting
part of a Sale and Leaseback Transaction and to Capital Lease
Obligations,
(b) amortization of debt discount and debt issuance cost,
including commitment fees,
(c) capitalized interest,
(d) non-cash interest expense,
(e) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing,
(f) net costs associated with Hedging Obligations
(including amortization of fees),
(g) Disqualified Stock Dividends,
(h) Preferred Stock Dividends,
(i) interest Incurred in connection with Investments in
discontinued operations,
(j) interest accruing on any Debt of any other Person to
the extent such Debt is Guaranteed by the Company or any Restricted
Subsidiary, and
(k) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are
used by such plan or trust to pay interest or fees to any Person (other
than the Company) in connection with Debt Incurred by such plan or
trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its consolidated Subsidiaries; provided,
however, that there shall not be included in such Consolidated Net Income:
(a) any net income (loss) of any Person (other than the
Company) if such Person is not a Restricted Subsidiary, except that:
(1) subject to the exclusion contained in clause
(d) below, the Company's and its consolidated Subsidiaries'
equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the
aggregate amount of cash distributed by such Person during
such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a
dividend or other distribution to a Restricted Subsidiary, to
the limitations contained in clause (c) below), and
(2) the Company's and its consolidated
Subsidiaries' equity in a net loss of any such Person other
than an Unrestricted Subsidiary for such period shall be
included in determining such Consolidated Net Income,
(b) for purposes of Section 4.10 only, any net income
(loss) of any Person acquired by the Company or any of its consolidated
Subsidiaries in a pooling of interests transaction for any period prior
to the date of such acquisition,
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(c) any net income (loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions,
directly or indirectly, to the Company, except that:
(1) subject to the exclusion contained in clause
(d) below, the Company's and its consolidated Subsidiaries'
equity in the net income of any such Restricted Subsidiary for
such period shall be included in such Consolidated Net Income
up to the greater of (I) the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period
to the Company or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or
other distribution to another Restricted Subsidiary, to the
limitation contained in this clause (c)) and (II) the
aggregate amount of cash that could have been distributed by
such Restricted Subsidiary during such period to the Company
or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution to another Restricted Subsidiary, to the
limitation contained in this clause (c)), and
(2) the Company's and its consolidated
Subsidiaries' equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining
such Consolidated Net Income,
(d) any gain (but not loss) realized upon the sale or
other disposition of any Property of the Company or any of its
consolidated Subsidiaries (including pursuant to any Sale and Leaseback
Transaction) that is not sold or otherwise disposed of in the ordinary
course of business,
(e) any extraordinary, non-recurring or unusual gain or
loss,
(f) the cumulative effect of a change in accounting
principles and
(g) any non-cash compensation expense realized for grants
of performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted Subsidiary,
provided that such shares, options or other rights can be redeemed at
the option of the holder only for Capital Stock of the Company (other
than Disqualified Stock).
Notwithstanding the foregoing, for purposes of Section 4.10
only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from Unrestricted
Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments
permitted under clause (c)(4) of the first paragraph of Section 4.10.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company, one or
more debt or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables or
inventory financing (including through the sale of receivables or inventory to
such lenders or to special purpose, bankruptcy remote entities formed to borrow
from such lenders against such receivables or inventory) or trade letters of
credit, in each case together with any extensions, revisions, refinancings or
replacements thereof by a lender or syndicate of lenders.
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"Currency Exchange Protection Agreement" means, in respect of
a Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Custodian" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as Custodian with respect to the Notes, any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any) in respect of:
(1) debt of such Person for money borrowed, and
(2) debt evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such
Person is responsible or liable;
(b) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by such Person;
(c) all obligations of such Person issued or assumed as
the deferred purchase price of Property, all conditional sale
obligations of such Person and all obligations of such Person under any
title retention agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(d) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (a)
through (c) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit);
(e) the amount of all obligations of such Person with
respect to the Repayment of any Disqualified Stock or, with respect to
any Subsidiary of such Person, any Preferred Stock (but excluding, in
each case, any accrued dividends);
(f) all obligations of the type referred to in clauses
(a) through (e) of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee;
(g) all obligations of the type referred to in clauses
(a) through (f) of other Persons secured by any Lien on any Property of
such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the Fair
Market Value of such Property or the amount of the obligation so
secured; and
(h) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
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The amount of Debt of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date. The amount
of Debt represented by a Hedging Obligation shall be equal to:
(1) zero if such Hedging Obligation has been
Incurred pursuant to clause (e) of the second paragraph of
Section 4.09, or
(2) the notional amount of such Hedging
Obligation if not Incurred pursuant to such clause.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Disqualified Stock" means, with respect to any Person, 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, in either case at the option of
the holder thereof) or otherwise:
(a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the
holder thereof for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the first anniversary of
the Stated Maturity of the Notes.
"Disqualified Stock Dividends" means all dividends with
respect to Disqualified Stock of the Company held by Persons other than a Wholly
Owned Restricted Subsidiary. The amount of any such dividend shall be equal to
the quotient of such dividend divided by the difference between one and the
maximum statutory federal income tax rate (expressed as a decimal number between
1 and 0) then applicable to the Company.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"EBITDA" means, for any period, an amount equal to, for the
Company and its consolidated Restricted Subsidiaries:
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(a) the sum of Consolidated Net Income for such period,
plus the following to the extent reducing Consolidated Net Income for
such period:
(1) the provision for taxes based on income or
profits or utilized in computing net loss,
(2) Consolidated Interest Expense,
(3) depreciation,
(4) amortization of intangibles, and
(5) any other non-cash items (other than any
such non-cash item to the extent that it represents an accrual
of or reserve for cash expenditures in any future period),
minus
(b) all non-cash items increasing Consolidated Net Income
for such period (other than any such non-cash item to the extent that
it will result in the receipt of cash payments in any future period).
Notwithstanding the foregoing clause (a), the provision for
taxes and the depreciation, amortization and non-cash items of a
Restricted Subsidiary shall be added to Consolidated Net Income to
compute EBITDA only to the extent (and in the same proportion) that the
net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear systems, and any successor
thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined in good faith, (a) if such Property has a fair market value
equal to or less than $1.0 million, by any Officer of the Company, or (b) if
such Property has a fair market value in excess of $1.0 million, by the Board of
Directors.
"GAAP" means United States generally accepted accounting
principles as in effect on the Issue Date, including those set forth:
(a) in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants,
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(b) in the statements and pronouncements of the Financial
Accounting Standards Board,
(c) in such other statements by such other entity as
approved by a significant segment of the accounting profession, and
(d) in the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements
in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt of such other Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise), or
(b) entered into for the purpose of assuring in any other
manner the obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
(1) endorsements for collection or deposit in
the ordinary course of business, or
(2) a contractual commitment by one Person to
invest in another Person for so long as such Investment is
reasonably expected to constitute a Permitted Investment under
clause (c) of the definition of "Permitted Investment."
The term "Guarantee" used as a verb has a corresponding
meaning. The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of
such Person pursuant to any Interest Rate Agreement, Currency Exchange
Protection Agreement or any other similar agreement or arrangement.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means the Global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any.
12
"Incur" means with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such Debt
or other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Debt or obligation on the balance sheet of such Person (and
"Incurrence" and "Incurred" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other obligations of a Person existing at the time
such Person becomes a Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Indenture" means this instrument, as originally executed or
as it may from time to time be supplemented or amended in accordance with
Article 9 hereof.
"Independent Financial Advisor" means an investment banking
firm of national standing or any third party appraiser of national standing,
provided that such firm or appraiser is not an Affiliate of the Company.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means $175,000,000 in aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Interest Payment Date" means each February 15 and August 15
of each year, or if any such day is not a Business Day, the next succeeding
Business Day, commencing August 15, 2002.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any direct or indirect loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person), advance or
other extension of credit or capital contribution (by means of transfers of cash
or other Property to others or payments for Property or services for the account
or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Debt issued by, any other Person.
For purposes of Section 4.10 and Section 4.16 and the definition of "Restricted
Payment," "Investment" shall include the portion (proportionate to the Company's
equity interest in such Subsidiary) of the Fair Market Value of the net assets
of any Subsidiary of the Company at the time that such Subsidiary is designated
an Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary of an amount (if
positive) equal to:
(a) the Company's "Investment" in such Subsidiary at the
time of such redesignation, less
13
(b) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets
of such Subsidiary at the time of such redesignation.
In determining the amount of any Investment made by transfer
of any Property other than cash, such Property shall be valued at its Fair
Market Value at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Xxxxx'x and BBB- (or the equivalent) by S&P.
"Investment Grade Securities" means:
(i) securities issued or directly and fully
guaranteed or insured by the United States government or any
agency or instrumentality thereof (other than Cash
Equivalents),
(ii) debt securities or debt instruments with a
rating of BBB- (or the equivalent) or higher by S&P, Baa3 (or
the equivalent) or higher by Moody's or Class (2) (or the
equivalent) or higher by NAIC or the equivalent of such rating
by such rating organization, or, if no rating of S&P, Moody's
or NAIC then exists, the equivalent of such rating by any
other nationally recognized securities rating agency, but
excluding any debt securities or instrument constituting loans
or advances among the Company and its Subsidiaries, and
(iii) investments in any fund that invests
exclusively in investments of the type described in clauses
(i) and (ii) which fund may also hold immaterial amounts of
cash or Cash Equivalents pending investment and/or
distribution.
"Issue Date" means the date on which the Notes are initially
issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the Corporate
Trust Office is located, or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Initial Notes for use by
such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"NAIC" means National Association of Insurance Commissioners.
14
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Debt or other obligations
relating to the Property that is the subject of such Asset Sale or received in
any other non-cash form), in each case net of:
(a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all federal,
state, provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any
Property subject to such Asset Sale, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to
such Property, or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale, or by applicable law, be repaid
out of the proceeds from such Asset Sale,
(c) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as
a result of such Asset Sale, and
(d) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed of in such Asset Sale and
retained by the Company or any Restricted Subsidiary after such Asset
Sale.
"Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer, or any Executive Vice President of the Company.
"Officers' Certificate" means a certificate, in form and
substance reasonably satisfactory to the Trustee, signed by two Officers of the
Company, at least one of whom shall be the principal executive officer or
principal financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to the Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Investment" means any Investment by the Company or
a Restricted Subsidiary in:
(a) the Company or any Restricted Subsidiary;
(b) any Person that will, upon the making of such
Investment, become a Restricted Subsidiary, provided that the primary
business of such Restricted Subsidiary is a Related Business;
(c) any Person if as a result of such Investment such
Person is merged or consolidated with or into, or transfers or conveys
all or substantially all its Property to, the
15
Company or a Restricted Subsidiary, provided that such Person's primary
business is a Related Business;
(d) cash, Cash Equivalents or Investment Grade
Securities;
(e) receivables owing to the Company or a Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or such Restricted Subsidiary deems
reasonable under the circumstances;
(f) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated
as expenses for accounting purposes and that are made in the ordinary
course of business;
(g) loans and advances to employees made in the
ordinary course of business consistent with past practices of the
Company or such Restricted Subsidiary, as the case may be, provided
that such loans and advances do not exceed $1.0 million at any one time
outstanding;
(h) stock, obligations or other securities received in
settlement of debts created in the ordinary course of business and
owing to the Company or a Restricted Subsidiary or in satisfaction of
judgments;
(i) any Person to the extent such Investment represents
the non-cash portion of the consideration received in connection with
an Asset Sale consummated in compliance with Section 4.12; and
(j) other Investments made for Fair Market Value that do
not exceed $50.0 million outstanding at any one time in the aggregate.
"Permitted Liens" means:
(a) Liens to secure Debt permitted to be Incurred under
clause (b) of the second paragraph of Section 4.09;
(b) Liens to secure Debt permitted to be Incurred under
clause (c) of the second paragraph of Section 4.09, provided that any
such Lien may not extend to any Property of the Company or any
Restricted Subsidiary, other than the Property acquired, constructed or
leased with the proceeds of such Debt and any improvements or
accessions to such Property;
(c) Liens for taxes, assessments or governmental charges
or levies on the Property of the Company or any Restricted Subsidiary
if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision that shall be
required in conformity with GAAP shall have been made therefor;
(d) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens and other similar Liens, on the
Property of the Company or any Restricted Subsidiary arising in the
ordinary course of business and securing payment of obligations that
are not more than 60 days past due or are being contested in good faith
and by appropriate proceedings;
16
(e) Liens on the Property of the Company or any
Restricted Subsidiary Incurred in the ordinary course of business to
secure performance of obligations with respect to statutory or
regulatory requirements, performance or return-of-money bonds, surety
bonds or other obligations of a like nature and Incurred in a manner
consistent with industry practice, in each case which are not Incurred
in connection with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of Property and
which do not in the aggregate impair in any material respect the use of
Property in the operation of the business of the Company and the
Restricted Subsidiaries taken as a whole;
(f) Liens on Property at the time the Company or any
Restricted Subsidiary acquired such Property, including any acquisition
by means of a merger or consolidation with or into the Company or any
Restricted Subsidiary; provided, however, that any such Lien may not
extend to any other Property of the Company or any Restricted
Subsidiary; provided further, however, that such Liens shall not have
been Incurred in anticipation of or in connection with the transaction
or series of transactions pursuant to which such Property was acquired
by the Company or any Restricted Subsidiary;
(g) Liens on the Property of a Person at the time such
Person becomes a Restricted Subsidiary; provided, however, that any
such Lien may not extend to any other Property of the Company or any
other Restricted Subsidiary that is not a direct Subsidiary of such
Person; provided further, however, that any such Lien was not Incurred
in anticipation of or in connection with the transaction or series of
transactions pursuant to which such Person became a Restricted
Subsidiary;
(h) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Restricted Subsidiary is party, or deposits
to secure public or statutory obligations of the Company, or deposits
for the payment of rent, in each case Incurred in the ordinary course
of business;
(i) utility easements, building restrictions and such
other encumbrances or charges against real Property as are of a nature
generally existing with respect to properties of a similar character;
(j) Liens existing on the Issue Date not otherwise
described in clauses (a) through (i) above;
(k) Liens not otherwise described in clauses (a) through
(j) above on the Property of any Restricted Subsidiary to secure any
Debt permitted to be Incurred by such Restricted Subsidiary pursuant to
Section 4.09;
(l) Liens on the Property of the Company or any
Restricted Subsidiary to secure any Refinancing, in whole or in part,
of any Debt secured by Liens referred to in clause (b), (f), (g), (j)
or (k) above; provided, however, that any such Lien shall be limited to
all or part of the same Property that secured the original Lien
(together with improvements and accessions to such Property) and the
aggregate principal amount of Debt that is secured by such Lien shall
not be increased to an amount greater than the sum of:
(1) the outstanding principal amount, or, if
greater, the committed amount, of the Debt secured by Liens
described under clause (b), (f), (g), (j) or (k) above, as the
17
case may be, at the time the original Lien became a Permitted
Lien under this Indenture, and
(2) an amount necessary to pay any fees and
expenses, including premiums and defeasance costs, incurred by
the Company or such Restricted Subsidiary in connection with
such Refinancing; and
(m) Liens not otherwise permitted by clauses (a) through
(l) above encumbering assets having an aggregate Fair Market Value not
in excess of $50.0 million in the aggregate.
"Permitted Refinancing Debt" means any Debt that Refinances
any other Debt, including any successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of:
(1) the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted
value) then outstanding of the Debt being Refinanced, and
(2) an amount necessary to pay any fees and
expenses, including premiums and defeasance costs, related to
such Refinancing,
(b) the Average Life of such Debt is equal to or greater
than the Average Life of the Debt being Refinanced,
(c) the Stated Maturity of such Debt is no earlier than
the Stated Maturity of the Debt being Refinanced, and
(d) the new Debt shall not be senior in right of payment
to the Debt that is being Refinanced;
provided, however, that Permitted Refinancing Debt shall not include:
(x) Debt of a Subsidiary that Refinances Debt of the
Company, or
(y) Debt of the Company or a Restricted Subsidiary that
Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including
any limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends with respect
to Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by
18
the difference between one and the maximum statutory federal income rate
(expressed as a decimal number between 1 and 0) then applicable to the issuer of
such Preferred Stock.
"Principal Purchase Agreement" means the Agreement, dated
November 30, 2001, between the Company and Principal as in effect on the Issue
Date.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture
except as otherwise permitted by the provisions of this Indenture.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person.
"Public Equity Offering" means any underwritten public
offering of common stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of
property, conditional sale obligations, obligations under any title
retention agreement, other purchase money obligations and obligations
in respect of industrial revenue bonds, in each case where the maturity
of such Debt does not exceed the anticipated useful life of the
Property being financed, and
(b) Incurred to finance the acquisition, construction or
lease by the Company or a Restricted Subsidiary of such Property,
including additions and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, construction or lease of such Property by the Company or such
Restricted Subsidiary; and, provided further, however, that in no event shall
such Debt be incurred in connection with the acquisition of Capital Stock.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agencies" means Xxxxx'x and S&P.
"Reference Treasury Dealer" means Xxxxxxx Xxxxx Barney Inc.
and its successors; provided, however, that if the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such redemption date.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, repurchase, redeem, defease or retire, or
to issue other Debt, in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
19
"Registration Rights Agreement" means the Registration Rights
Agreement, dated February 1, 2002, between the Company and the initial
purchasers named therein.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means the global note in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of Notes sold in reliance on Regulation S.
"Related Business" means any business that is related,
ancillary or complementary to the businesses of the Company and the Restricted
Subsidiaries on the Issue Date.
"Repay" means, in respect of any Debt, to repay, prepay,
repurchase, redeem, legally defease or otherwise retire such Debt. "Repayment"
and "Repaid" shall have correlative meanings. For purposes of Section 4.12 and
the definition of "Consolidated Interest Coverage Ratio", Debt shall be
considered to have been Repaid only to the extent the related loan commitment,
if any, shall have been permanently reduced in connection therewith.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive
Notes bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note, the IAI
Global Note and the Regulation S Global Note.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash,
securities or other Property) declared or paid on or with respect to
any shares of Capital Stock of the Company or any Restricted Subsidiary
(including any payment in connection with any merger or consolidation
with or into the Company or any Restricted Subsidiary), except for any
dividend or distribution that is made solely to the Company or a
Restricted Subsidiary (and, if such Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary, to the other shareholders of such
Restricted Subsidiary on a pro rata basis or on a basis that results in
the receipt by the Company or a Restricted Subsidiary of dividends or
distributions of greater value than it would receive on a pro rata
basis) or any dividend or distribution payable solely in shares of
Capital Stock (other than Disqualified Stock) of the Company;
(b) the purchase, repurchase, redemption, acquisition or
retirement for value of any Capital Stock of the Company or any
Restricted Subsidiary (other than from the Company or a Restricted
Subsidiary) or any securities exchangeable for or convertible into any
such Capital Stock, including the exercise of any option to exchange
any Capital Stock (other than for or into Capital Stock of the Company
that is not Disqualified Stock);
20
(c) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled maturity,
sinking fund or amortization or other installment payment, of any
Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition);
(d) any Investment (other than Permitted Investments) in
any Person; or
(e) the issuance, sale or other disposition of Capital
Stock of any Restricted Subsidiary to a Person other than the Company
or another Restricted Subsidiary if the result thereof is that such
Restricted Subsidiary shall cease to be a Restricted Subsidiary, in
which event the amount of such "Restricted Payment" shall be the Fair
Market Value of the remaining interest, if any, in such former
Restricted Subsidiary held by the Company and the other Restricted
Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person and
the Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission or any
successor agency.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(a) all obligations consisting of the principal, premium,
if any, and accrued and unpaid interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
relating to the Company to the extent post-filing interest is allowed
in such proceeding) in respect of:
(1) Debt of the Company for borrowed money, and
(2) Debt of the Company evidenced by notes,
debentures, bonds or other similar instruments permitted under this
Indenture for the payment of which the Company is responsible or
liable;
21
(b) all Capital Lease Obligations of the Company and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by the Company;
(c) all obligations of the Company
(1) for the reimbursement of any obligor on any
letter of credit, bankers' acceptance or similar credit
transaction,
(2) under Hedging Obligations, or
(3) issued or assumed as the deferred purchase
price of Property and all conditional sale obligations of the
Company and all obligations under any title retention
agreement permitted under this Indenture; and
(d) all obligations of other Persons of the type referred
to in clauses (a), (b) and (c) for the payment of which the Company is
responsible or liable as Guarantor;
provided, however, that Senior Debt shall not include:
(A) Debt of the Company that is by its
terms subordinate in right of payment to the Notes,
including any Subordinated Obligations;
(B) any Debt Incurred in violation of
the provisions of this Indenture;
(C) accounts payable or any other
obligations of the Company to trade creditors created
or assumed by the Company in the ordinary course of
business in connection with the obtaining of
materials or services (including Guarantees thereof
or instruments evidencing such liabilities);
(D) any liability for federal, state,
local or other taxes owed or owing by the Company;
(E) any obligation of the Company to
any Subsidiary; or
(F) any obligations with respect to any
Capital Stock of the Company.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 of
Regulation S-X promulgated by the SEC.
"Special Interest" has the meaning set forth in the
Registration Rights Agreement.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the Company unless such
contingency has occurred).
22
"Subordinated Obligation" means any Debt of the Company
(whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such
Person, or
(c) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the yield to maturity of the Comparable Treasury
Issue, compounded semi-annually, assuming a price for such Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes, in
the form of Exhibit A attached hereto, that do not and are not required to bear
the Private Placement Legend and are deposited with and registered in the name
of the Depositary or its nominee.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Company that is designated
after the Issue Date as an Unrestricted Subsidiary as permitted or
required pursuant to the covenant described under Section 4.16 and is
not thereafter redesignated as a Restricted Subsidiary as permitted
pursuant thereto; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person means all classes of Capital
Stock (including partnership interests) or other interests of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
23
"Wholly Owned Restricted Subsidiary" means, at any time, a
Restricted Subsidiary all the Voting Stock of which (except directors'
qualifying shares) is at such time owned, directly or indirectly, by the Company
and its other Wholly Owned Restricted Subsidiaries.
24
Section 1.02. Other Definitions.
-----------------
Defined in
Term Section
"Affiliate Transaction"....................................................4.14
"Authentication Order".....................................................2.02
"Change of Control Offer"..................................................4.17
"Change of Control Purchase Price".........................................4.17
"Covenant Defeasance"......................................................8.03
"DTC"......................................................................2.03
"Event of Default".........................................................6.01
"Excess Proceeds"..........................................................4.12
"Legal Defeasance" ........................................................8.02
"Paying Agent".............................................................2.03
"Permitted Debt"...........................................................4.09
"Prepayment Offer".........................................................4.12
"Registrar"................................................................2.03
"Security Registrar".......................................................4.17
""Surviving Person"........................................................5.01
"Suspended Covenant".......................................................4.18
Section 1.03. Incorporation by Reference of Trust
Indenture Act.
(a) Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.
(b) The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
25
(2) an accounting term not otherwise defined
herein has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular;
(5) all references in this instrument to
designated "Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and subdivisions of this instrument as
originally executed;
(6) 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.
(7) "including" means "including without
limitation";
(8) provisions apply to successive events and
transactions; and
(9) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
(b) Form of Notes. The Notes shall be issued initially in
global form and shall be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Notes issued in definitive form
shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Note" attached thereto). Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall provide that
it shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the
26
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Book-Entry Provisions. This Section 2.01(c) shall
only apply to Global Notes deposited with the Trustee, as custodian for the
Depositary. Participants and Indirect Participants shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as the custodian for the Depositary or under such
Global Note, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
Section 2.02. Execution and Authentication.
(a) Two Officers shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the Notes
and may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the
Company signed by an Officer (an "Authentication Order"), authenticate Notes for
original issue.
(e) The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
(f) The Company may issue Additional Notes from time to
time after the offering of the Initial Notes. The Initial Notes, the Exchange
Notes and any Additional Notes subsequently issued under this Indenture shall be
treated as a single class for all purposes under this Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.
Section 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying
27
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest and Special Interest, if any,
on the Notes, and shall notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing, a list in such form and as of such date or
such shorter time as the Trustee may allow, as the Trustee may reasonably
require of the names and addresses of the Holders and the Company shall
otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if (1) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary, (2) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and deliver a written notice to such effect to the Trustee;
or (3) a Default or Event of Default shall have occurred and be continuing. Upon
the occurrence of either of the preceding events in (1), (2) or (3) above,
Definitive Notes shall be issued in denominations of $1,000 or integral
multiples thereof and in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global
28
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Distribution Compliance Period,
transfers of beneficial interests in the Regulation S Global
Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all
transfers and exchanges of beneficial interests that are not
subject to Section 2.06(b)(i) above, the transferor of such
beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above. Upon
consummation of an Exchange Offer by the Company in accordance
with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(iii) Transfer of Beneficial Interests in a
Restricted Global Note to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form
of a beneficial
29
interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take
delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take
delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take
delivery in the form of a beneficial interest in the
IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto,
including the certifications and certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests
in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant
to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
broker-dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
beneficial interest in a Restricted Global
Note proposes to exchange such beneficial
interest for a beneficial interest in an
Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a)
thereof; or
(2) if the holder of such
beneficial interest in a Restricted Global
Note proposes to transfer such beneficial
interest to a Person who shall take delivery
thereof in the form of a beneficial interest
in an
30
Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto,
including the certifications in item (4)
thereof;
and, in each such case set forth in this
clause (D), if the Registrar and the Company
so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to
the effect that such exchange or transfer is
in compliance with the Securities Act and
that the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause
(B) or (D) above at a time when an Unrestricted Global Note
has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount
equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests
in Unrestricted Global Notes for Beneficial Interests in
Restricted Global Notes Prohibited. Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
31
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof, as
applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive
32
Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the
Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and mail or deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for
Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the
33
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof, as
applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from
34
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof;
or
(2) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the
Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
clauses in this Section 2.06(d)(ii), the Trustee shall cancel
the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer
such Unrestricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes Prohibited. An Unrestricted Definitive Note cannot be
exchanged for, or transferred to Persons who take delivery
thereof in the form of, beneficial interests in a Restricted
Global Note.
(v) Issuance of Unrestricted Global Notes. If
any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to clauses (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and,
upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of
35
Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, as applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
broker-dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D),
if the Registrar so requests, an Opinion of Counsel
in form reasonably acceptable to the Registrar and
the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the
36
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Unrestricted Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes tendered for acceptance by Persons who made the
foregoing certification and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and mail or deliver to the Persons designated by the Holders of
Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by clause (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, BEFORE THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE COMPANY, (B) UNDER A
37
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE UNDER RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) UNDER
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO
AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT BEFORE ANY SUCH OFFER, SALE OR
TRANSFER UNDER CLAUSES (D), (E), OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to clauses (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
38
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.17 and
9.05 hereof).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid
39
obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(iv) Neither the Registrar nor the Company shall be
required (A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.02 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next
succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(vii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(viii) The Trustee is hereby authorized to enter into a
letter of representation with the Depository in the form provided by
the Company and to act in accordance with such letter.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by
40
the Company or a Subsidiary of the Company shall not be deemed to be outstanding
for purposes of 3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
(d) If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee upon direction by the Company and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest or Special
Interest, if any, on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of
41
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13. CUSIP or ISIN Numbers.
The Company in issuing the Notes may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" or
"ISIN" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
Section 2.14. Special Interest.
If Special Interest is payable by the Company pursuant to the
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Special Interest that is payable and (ii) the date on which such interest
is payable. Unless and until a Responsible Officer of the Trustee receives such
a certificate or instruction or direction from the Holders in accordance with
the terms of the Indenture, the Trustee may assume without inquiry that no
Special Interest is payable. The foregoing shall not prejudice the rights of the
Holders with respect to their entitlement to Special Interest as otherwise set
forth in this Indenture or the Notes and pursuing any action against the Company
directly or otherwise directing the Trustee to take any such action in
accordance with the terms of this Indenture and the Notes. If the Company has
paid Special Interest directly to the persons entitled to it, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be
42
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price or, if the redemption is made
pursuant to Section 3.07(b), a calculation of the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Special Interest, if any, on Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the paragraph of the Notes or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 3.03.
43
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. on the Business Day prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued interest and
Special Interest, if any, on all Notes to be redeemed on that date. The Trustee
or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest and Special
Interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and Special Interest, if
any, shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or
prior to the related Interest Payment Date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for redemption shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest and Special Interest, if any,
shall be paid on the unpaid principal from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this
Section 3.07, the Notes will not be redeemable at the option of the
Company prior to February 15, 2007. Starting on that date, the Company
may redeem all or any portion of the Notes, at once or over time, after
giving the required notice under this Indenture. The Notes may be
redeemed at the redemption prices set forth below, plus accrued and
unpaid interest and Special Interest, if any, to the redemption date
(subject to the right of Holders on the relevant record date to receive
interest due on the relevant Interest Payment Date). The following
prices are for Notes redeemed during the 12- month period commencing on
February 15 of the years set forth below, and are expressed as
percentages of principal amount:
44
Year Percentage
---- ---------
2007........................................................................... 104.063%
2008........................................................................... 102.708%
2009........................................................................... 101.354%
2010 and thereafter............................................................ 100.000%
(b) At any time prior to February 15, 2007, the Company
may redeem all or any portion of the Notes, at once or over time, after
giving the required notice under this Indenture, at a redemption price
equal to the greater of:
(i) 100% of the principal amount of the Notes to be
redeemed, and
(ii) the sum of the present values of (A) the redemption
price of the Notes at February 15, 2007 (as set forth in the preceding
paragraph) and (B) the remaining scheduled payments of interest from
the redemption date through February 15, 2007, but excluding accrued
and unpaid interest through the redemption date, discounted to the
redemption date at the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest and Special Interest, if any,
to the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date).
Any notice to Holders of a redemption pursuant to this Section
3.07(b) shall include the appropriate calculation of the redemption price, but
need not include the redemption price itself. The actual redemption price,
calculated as described above, shall be set forth in an Officers' Certificate
delivered to the Trustee no later than two Business Days prior to the redemption
date.
(c) At any time and from time to time, prior to February
15, 2005, the Company may redeem up to a maximum of 33-1/3% of the
aggregate principal amount of the Notes with the proceeds of one or
more Public Equity Offerings, at a redemption price equal to 108.125%
of the principal amount thereof, plus accrued and unpaid interest and
Special Interest, if any, to the redemption date (subject to the right
of Holders on the relevant record date to receive interest due on the
relevant Interest Payment Date); provided, however, that after giving
effect to any such redemption, at least 66-2/3% of the original
aggregate principal amount of the Notes issued on the Issue Date
remains outstanding. Any such redemption shall be made within 75 days
of such Public Equity Offering upon not less than 30 nor more than 60
days' prior notice.
(d) Any prepayment pursuant to this Section 3.07 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
45
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest and Special Interest, if any, on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any, and
interest and Special Interest, if any, shall be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as
of 11:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest and Special Interest, if any, then due.
The Company shall pay Special Interest, if any, in the same manner, on the dates
and in the amounts set forth in the Registration Rights Agreement, the Notes and
this Indenture.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful.
Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency (which may be an office or
drop facility of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be presented or surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Trustee c/o First
Union National Bank, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000,xx one such office, drop facility or agency of the Company in accordance
with Section 2.03.
Section 4.03. Reports.
(a) Notwithstanding that the Company may not be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so
long as any Notes are outstanding the Company shall file with the SEC and
provide the Trustee and Holders with such annual reports and such
46
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and reports to be so filed and provided at
the times specified for the filing of such information, documents and reports
under such Sections; provided, however, that the Company shall not be so
obligated to file such information, documents and reports with the SEC if the
SEC does not permit such filings.
(b) For so long as any Notes remain outstanding, the
Company shall furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered to the Trustee pursuant to Section 4.03
above shall be accompanied by a written statement of the Company's independent
public accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles 4 or 5 hereof or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of an Officers'
Certificate of any event that with the giving of notice and the lapse of time
would become an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
47
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.08. Payments for Consent.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or is paid to all Holders that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.09. Limitation on Debt.
The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Debt (including any Acquired
Debt) unless, after giving effect to the application of the proceeds thereof, no
Default or Event of Default would occur as a consequence of such Incurrence or
be continuing following such Incurrence and either:
(1) such Debt is Debt of the Company and after
giving effect to the Incurrence of such Debt and the
application of the proceeds thereof, the Consolidated Interest
Coverage Ratio would be greater than 2.00 to 1.00; provided,
that if the Debt which is the subject of a determination under
this provision is Acquired Debt or Debt to be incurred in
connection with the simultaneous acquisition of any Person,
business or Property, then such ratio shall be determined on a
pro forma basis, as if the transaction had occurred at the
beginning of the four quarter period used in the determination
of the Consolidated Interest Coverage Ratio, or
(2) such Debt is Permitted Debt.
The term "Permitted Debt" is defined to include the following:
48
(a) Debt of the Company evidenced by the Initial
Notes, the Exchange Notes or any new notes issued in exchange
for Additional Notes, provided such new notes have terms
substantially identical in all material respects to such
Additional Notes and are issued pursuant to an exchange offer
similar to the Exchange Offer;
(b) Debt of the Company under Credit Facilities,
provided that the aggregate principal amount of all such Debt
under Credit Facilities at any one time outstanding shall not
exceed $200.0 million, which amount shall be permanently
reduced by the amount of Net Available Cash used to Repay Debt
under the Credit Facilities, and not subsequently reinvested
in Additional Assets or used to purchase Notes or Repay other
Debt, pursuant to Section 4.12;
(c) Debt of the Company or a Restricted
Subsidiary in respect of Capital Lease Obligations and
Purchase Money Debt, provided that:
(1) the aggregate principal amount of
such Debt does not exceed the Fair Market Value of
the Property acquired, constructed or leased, and
(2) the aggregate principal amount of
all Debt Incurred and then outstanding pursuant to
this clause (c) (together with all Permitted
Refinancing Debt Incurred and then outstanding in
respect of Debt previously Incurred pursuant to this
clause (c)) does not exceed $50.0 million;
(d) Debt of the Company owing to and held by any
Wholly Owned Restricted Subsidiary and Debt of a Restricted
Subsidiary owing to and held by the Company or any Wholly
Owned Restricted Subsidiary; provided, however, that any
subsequent issue or transfer of Capital Stock or other event
that results in any such Wholly Owned Restricted Subsidiary
ceasing to be a Wholly Owned Restricted Subsidiary or any
subsequent transfer of any such Debt (except to the Company or
a Wholly Owned Restricted Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Debt by the issuer
thereof;
(e) Debt under Interest Rate Agreements entered
into by the Company or a Restricted Subsidiary for the purpose
of limiting interest rate risk in the ordinary course of the
financial management of the Company or such Restricted
Subsidiary and not for speculative purposes, provided that the
obligations under such agreements are directly related to
payment obligations on Debt otherwise permitted by the terms
of this Section 4.09;
(f) Debt in connection with one or more standby
letters of credit or performance bonds issued by the Company
or a Restricted Subsidiary in the ordinary course of business
or pursuant to self-insurance obligations and not in
connection with the borrowing of money or the obtaining of
advances or credit;
(g) Debt of the Company or a Restricted
Subsidiary outstanding on the Issue Date not otherwise
described in clauses (a) through (f) above;
(h) Debt of a Restricted Subsidiary outstanding
on the date on which such Restricted Subsidiary was acquired
by the Company or otherwise became a Restricted Subsidiary
(other than Debt Incurred as consideration in, or to provide
all or any portion of the funds or credit support utilized to
consummate, the transaction or series of transactions pursuant
to which such Restricted Subsidiary became a Subsidiary of the
Company or was otherwise acquired by the Company), provided
that at the time such Restricted Subsidiary was acquired by
the Company or otherwise became a Restricted Subsidiary and
after giving effect to the Incurrence of such Debt,
49
the Company would have been able to Incur $1.00 of additional
Debt pursuant to clause (1) of the first paragraph of this
Section 4.09;
(i) Debt of the Company and its Restricted
Subsidiaries in an aggregate principal amount outstanding at
any one time not to exceed $75.0 million; and
(j) Permitted Refinancing Debt Incurred in
respect of Debt Incurred pursuant to clause (1) of the first
paragraph of this Section 4.09 and clauses (a), (c), (g) and
(h) above; provided in the case of Permitted Refinancing Debt
Incurred in respect of Debt Incurred pursuant to clause (h)
above, such Permitted Refinancing Debt may only be incurred by
the Company.
Notwithstanding anything to the contrary contained in
this Section 4.09,
(a) the Company shall not Incur any Debt
pursuant to clause (2) of the first paragraph of this Section
4.09 if the proceeds thereof are used, directly or indirectly,
to Refinance any Subordinated Obligations unless such Debt
shall be subordinated to the Notes to at least the same extent
as such Subordinated Obligations,
(b) the Company shall not permit any Restricted
Subsidiary to Incur any Debt pursuant to this Section 4.09 if
the proceeds thereof are used, directly or indirectly, to
Refinance any Debt of the Company, and
(c) accrual of interest, accretion or
amortization of original issue discount and the payment of
interest or dividends in the form of additional Debt, will be
deemed not to be an incurrence of Debt for purpose of this
Section 4.09.
For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (a) through (j) above or
is entitled to be incurred pursuant to clause (1) the first paragraph of this
Section 4.09, the Company shall, in its sole discretion, classify such item of
Debt in any manner that complies with this Section 4.09 and such item of Debt
will be treated as having been incurred pursuant to only one of such clauses or
pursuant to clause (1) of the first paragraph hereof.
Section 4.10. Limitation on Restricted Payments.
The Company shall not make, and shall not permit any
Restricted Subsidiary to make, directly or indirectly, any Restricted Payment if
at the time of, and after giving effect to, such proposed Restricted Payment,
(a) a Default or Event of Default shall have occurred and
be continuing,
(b) the Company could not Incur at least $1.00 of
additional Debt pursuant to clause (1) of the first paragraph of
Section 4.09 or
(c) the aggregate amount of such Restricted Payment and
all other Restricted Payments declared or made since the Issue Date
(the amount of any Restricted Payment, if made other than in cash, to
be based upon the Fair Market Value at the time of such Restricted
Payment) would exceed an amount equal to the sum of:
(1) 50% of the aggregate amount of Consolidated
Net Income accrued during the period (treated as one
accounting period) from the beginning of the fiscal
50
quarter during which the Issue Date occurs to the end of the
most recent fiscal quarter ending at least 45 days prior to
the date of such Restricted Payment (or if the aggregate
amount of Consolidated Net Income for such period shall be a
deficit, minus 100% of such deficit), plus
(2) 100% of the Capital Stock Sale Proceeds,
plus
(3) the sum of:
(A) the aggregate net cash proceeds
received by the Company or any Restricted Subsidiary
from the issuance or sale after the Issue Date of
convertible or exchangeable Debt that has been
converted into or exchanged for Capital Stock (other
than Disqualified Stock) of the Company, and
(B) the aggregate amount by which Debt
(other than Subordinated Obligations) of the Company
or any Restricted Subsidiary is reduced on the
Company's consolidated balance sheet on or after the
Issue Date upon the conversion or exchange of any
Debt issued or sold on or prior to the Issue Date
that is convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company,
excluding, in the case of clause (A) or (B):
(x) any such Debt issued or
sold to the Company or a Subsidiary of the
Company or an employee stock ownership plan
or trust established by the Company or any
such Subsidiary for the benefit of their
employees, and
(y) the aggregate amount of
any cash or other Property distributed by
the Company or any Restricted Subsidiary
upon any such conversion or exchange, plus
(4) an amount equal to the sum of:
(A) the net reduction in Investments in any
Person other than the Company or a Restricted Subsidiary
resulting from dividends, repayments of loans or advances or
other transfers of Property, in each case to the Company or
any Restricted Subsidiary from such Person, and
(B) the portion (proportionate to the Company's
equity interest in such Unrestricted Subsidiary) of the Fair
Market Value of the net assets of an Unrestricted Subsidiary
at the time such Unrestricted Subsidiary is designated a
Restricted Subsidiary; provided, however, that the foregoing
sum shall not exceed, in the case of any Person, the amount of
Investments previously made (and treated as a Restricted
Payment) by the Company or any Restricted Subsidiary in such
Person.
Notwithstanding the foregoing limitation, the Company may:
(a) pay dividends on its Capital Stock within 60 days of
the declaration thereof if, on said declaration date, such dividends
could have been paid in compliance with this Indenture;
51
provided, however, that at the time of such payment of such dividend,
no other Default or Event of Default shall have occurred and be
continuing (or result therefrom); provided further, however, that such
dividend shall be included in the calculation of the amount of
Restricted Payments;
(b) purchase, repurchase, redeem, legally defease,
acquire or retire for value Capital Stock of the Company or
Subordinated Obligations in exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to
a Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any such Subsidiary for the benefit
of their employees);
provided, however, that
(1) such purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be excluded in the
calculation of the amount of Restricted Payments and
(2) the Capital Stock Sale Proceeds from such
exchange or sale shall be excluded from the calculation
pursuant to clause (c)(2) above;
(c) purchase, repurchase, redeem, legally defease,
acquire or retire for value any Subordinated Obligations in exchange
for, or out of the proceeds of the substantially concurrent sale of,
Permitted Refinancing Debt; provided, however, that such purchase,
repurchase, redemption, legal defeasance, acquisition or retirement
shall be excluded in the calculation of the amount of Restricted
Payments;
(d) purchase shares of common stock of the Company from
Principal Health Care, Inc. pursuant to and in accordance with the
terms of the Principal Purchase Agreement;
(e) repurchase shares of, or options to purchase shares
of, common stock of the Company or any of its Subsidiaries from current
or former officers, directors or employees of the Company or any of its
Subsidiaries (or permitted transferees of such current or former
officers, directors or employees), pursuant to the terms of agreements
(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such individuals
purchase or sell, or are granted the option to purchase or sell, shares
of such common stock; provided, however, that:
(1) the aggregate amount of such repurchases
shall not exceed $1.0 million in any calendar year and
(2) at the time of such repurchase, no other
Default or Event of Default shall have occurred and be
continuing (or result therefrom);
provided further, however, that such repurchases shall be included in the
calculation of the amount of Restricted Payments; and
(f) acquire its Capital Stock in connection with the
exercise of warrants outstanding on the Issue Date, stock options or
stock appreciation rights by way of cashless exercise; and
(g) so long as no Default or Event of Default shall have
occurred and be continuing, or would occur as a consequence thereof,
make Restricted Payments in an aggregate amount not to exceed $50.0
million.
52
The amount of all Restricted Payments (other than cash) will
be the Fair Market Value on the date of the Restricted Payment of the securities
or Property proposed to be paid, transferred or issued by the Parent or such
Restricted Payment, as the case may be, pursuant to the Restricted Payment.
Section 4.11. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur or suffer to exist, any Lien (other
than Permitted Liens) upon any of its Property (including Capital Stock of a
Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired,
or any interest therein or any income or profits therefrom, unless it has made
or will make effective provision whereby the Notes will be secured by such Lien
equally and ratably with (or prior to) all other Debt of the Company or any
Restricted Subsidiary secured by such Lien for so long as such other Debt is
secured by such Lien.
Section 4.12. Limitation on Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(a) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the Property subject to such Asset Sale;
(b) at least 80% of the consideration paid to the Company
or such Restricted Subsidiary in connection with such Asset Sale is in
the form of cash, Cash Equivalents or the assumption by the purchaser
of liabilities of the Company or any Restricted Subsidiary, other than
liabilities that are by their terms subordinated to the Notes, as a
result of which the Company and the Restricted Subsidiaries are no
longer obligated with respect to such liabilities; and
(c) the Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Sale complies with the foregoing
clauses (a) and (b).
The Net Available Cash (or any portion thereof) from Asset
Sales may be applied by the Company or a Restricted Subsidiary, to the extent
the Company or such Restricted Subsidiary elects (or is required by the terms of
any Debt):
(a) to Repay Senior Debt of the Company or Debt of any
Restricted Subsidiary (excluding, in any such case, any Debt owed to
the Company or an Affiliate of the Company); or
(b) to reinvest in Additional Assets (including by means
of an Investment in Additional Assets by a Restricted Subsidiary with
Net Available Cash received by the Company or another Restricted
Subsidiary).
Any Net Available Cash from an Asset Sale not applied in
accordance with the preceding paragraph within 365 days from the date of the
receipt of such Net Available Cash shall constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $10.0
million (taking into account income earned on such Excess Proceeds, if any), the
Company will be required to make an offer to purchase (the "Prepayment Offer")
the Notes which offer shall be in the amount of the Allocable Excess Proceeds
(rounded to the nearest $1,000), on a pro rata basis according to principal
amount, at a purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and
53
Special Interest, if any, to the purchase date (subject to the right of Holders
on the relevant record date to receive interest due on the relevant Interest
Payment Date), in accordance with the procedures (including prorating in the
event of oversubscription) set forth in the Indenture. To the extent that any
portion of the amount of Net Available Cash remains after compliance with the
preceding sentence and provided that all Holders have been given the opportunity
to tender their Notes for purchase in accordance with the Indenture, the Company
or such Restricted Subsidiary may use such remaining amount for any purpose
permitted by the Indenture and the amount of Excess Proceeds will be reset to
zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the numerator of which is the aggregate
principal amount of the Notes outstanding on the date of the
Prepayment Offer, and
(2) the denominator of which is the sum of the
aggregate principal amount of the Notes outstanding on the
date of the Prepayment Offer and the aggregate principal
amount of other Debt of the Company outstanding on the date of
the Prepayment Offer that is pari passu in right of payment
with the Notes and subject to terms and conditions in respect
of Asset Sales similar in all material respects to the
covenant described hereunder and requiring the Company to make
an offer to purchase such Debt at substantially the same time
as the Prepayment Offer.
Within five Business Days after the Company is obligated to
make a Prepayment Offer as described in the preceding paragraph, the Company
shall send a written notice, by first-class mail, to the Holders, accompanied by
such information regarding the Company and its Subsidiaries as the Company in
good faith believes will enable such Holders to make an informed decision with
respect to such Prepayment Offer. Such notice shall state, among other things,
the purchase price and the purchase date, which shall be, subject to any
contrary requirements of applicable law, a Business Day no earlier than 30 days
nor later than 60 days from the date such notice is mailed.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to the
covenant described hereunder. To the extent that the provisions of any
securities laws or regulations conflict with provisions of the covenant
described hereunder, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
the covenant described hereunder by virtue thereof.
Section 4.13. Limitation on Restrictions on Distributions
from Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, or pay any
Debt or other obligation owed, to the Company or any other Restricted
Subsidiary,
54
(b) make any loans or advances to the Company or any
other Restricted Subsidiary or
(c) transfer any of its Property to the Company or any
other Restricted Subsidiary.
The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to
restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted
Subsidiary and existing at the time it became a
Restricted Subsidiary if such restriction was not
created in connection with or in anticipation of the
transaction or series of transactions pursuant to
which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company, or
(C) resulting from the Refinancing of
Debt Incurred pursuant to an agreement referred to in
clause (1)(A) or (B) above or in clause (2)(A) or (B)
below, provided such restriction is no less favorable
to the Holders than those under the agreement
evidencing the Debt so Refinanced, or
(D) existing by reason of applicable
law, regulation, order, approval, license, permit or
similar restriction, in each case issued or imposed
by a governmental authority, and
(2) with respect to clause (c) only, to
restrictions:
(A) relating to Debt that is permitted
to be Incurred and secured without also securing the
Notes pursuant to Sections 4.09 and 4.11 that limit
the right of the debtor to dispose of the Property
securing such Debt,
(B) encumbering Property at the time
such Property was acquired by the Company or any
Restricted Subsidiary, so long as such restriction
relates solely to the Property so acquired and was
not created in connection with or in anticipation of
such acquisition,
(C) resulting from customary provisions
restricting subletting or assignment of leases or
customary provisions in other agreements that
restrict assignment of such agreements or rights
thereunder, or
(D) customary restrictions contained in
asset sale agreements limiting the transfer of such
Property pending the closing of such sale.
Section 4.14. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into or
suffer to exist any transaction or series of transactions (including the
purchase, sale, transfer, assignment, lease, conveyance or exchange of any
Property or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "Affiliate Transaction"), unless:
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(a) the terms of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that
could be obtained in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company,
(b) if such Affiliate Transaction involves aggregate
payments or value in excess of $15.0 million, the Board of Directors
(including a majority of the disinterested members of the Board of
Directors) approves such Affiliate Transaction and, in its good faith
judgment, believes that such Affiliate Transaction complies with clause
(a)(2) of this paragraph as evidenced by a Board Resolution promptly
delivered to the Trustee, and
(c) if such Affiliate Transaction (other than the
repurchase by the Company of shares of its common stock and the warrant
owned by Principal and its Affiliates pursuant to the Principal
Purchase Agreement) involves aggregate payments or value in excess of
$30.0 million, the Company obtains a written opinion from an
Independent Financial Advisor to the effect that the consideration to
be paid or received in connection with such Affiliate Transaction is
fair, from a financial point of view, to the Company and the Restricted
Subsidiaries.
Notwithstanding the foregoing limitation, the Company or any
Restricted Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the
Company and one or more Restricted Subsidiaries or between two or more
Restricted Subsidiaries, provided that no more than 5% of the total
voting power of the Voting Stock (on a fully diluted basis) of any such
Restricted Subsidiary is owned by an Affiliate of the Company (other
than a Restricted Subsidiary);
(b) any Restricted Payment permitted to be made pursuant
to Section 4.10 or any Permitted Investment;
(c) the payment of compensation (including amounts paid
pursuant to employee benefit plans) for the personal services of
officers and directors of the Company or any of the Restricted
Subsidiaries, so long as the Board of Directors in good faith shall
have approved the terms thereof and deemed the services theretofore or
thereafter to be performed for such compensation to be fair
consideration therefor; and
(d) loans and advances to employees made in the ordinary
course of business and consistent with the past practices of the
Company or such Restricted Subsidiary, as the case may be, provided
that such loans and advances do not exceed $1.0 million in the
aggregate at any one time outstanding.
Section 4.15. Limitation on Sale and Leaseback
Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any
Property unless:
(a) the Company or such Restricted Subsidiary would be
entitled to:
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(1) Incur Debt in an amount equal to the
Attributable Debt with respect to such Sale and Leaseback
Transaction pursuant to Section 4.09, and
(2) create a Lien on such Property securing such
Attributable Debt without also securing the Notes pursuant to
Section 4.11, and
(b) such Sale and Leaseback Transaction is effected in
compliance with Section 4.12.
Section 4.16. Designation of Restricted and Unrestricted
Subsidiaries.
The Board of Directors may designate any Subsidiary of the
Company to be an Unrestricted Subsidiary if:
(a) the Subsidiary to be so designated does not own any
Capital Stock or Debt of, or own or hold any Lien on any Property of,
the Company or any other Restricted Subsidiary, and
(b) either:
(1) the Subsidiary to be so designated has total
assets of $1,000 or less, or
(2) such designation is effective immediately
upon such entity becoming a Subsidiary of the Company.
Unless so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that such Subsidiary shall not be designated a Restricted
Subsidiary and shall be automatically classified as an Unrestricted Subsidiary
if either of the requirements set forth in clauses (x) and (y) of the second
immediately following paragraph will not be satisfied after giving pro forma
effect to such classification or if such Person is a Subsidiary of an
Unrestricted Subsidiary.
Except as provided in the first sentence of the preceding
paragraph of this Section, no Restricted Subsidiary may be redesignated as an
Unrestricted Subsidiary. In addition, neither the Company nor any Restricted
Subsidiary shall at any time be directly or indirectly liable for any Debt that
provides that the holder thereof may (with the passage of time or notice or
both) declare a default thereon or cause the payment thereof to be accelerated
or payable prior to its Stated Maturity upon the occurrence of a default with
respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary).
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma
effect to such designation,
(x) the Company could Incur at least $1.00 of additional
Debt pursuant to clause (1) of the first paragraph of Section 4.09, and
(y) no Default or Event of Default shall have occurred
and be continuing or would result therefrom.
Any designation or redesignation by the Board of Directors
pursuant to the foregoing provisions will be evidenced to the Trustee by filing
with the Trustee a Board Resolution giving effect to such designation or
redesignation and an Officers' Certificate that:
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(a) certifies that such designation or redesignation
complies with the foregoing provisions, and
(b) gives the effective date of such designation or
redesignation,
such filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last fiscal
quarter of the Company's fiscal year, within 90 days after the end of such
fiscal year).
Section 4.17. Repurchase at the Option of Holders Upon a
Change of Control.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase all or any part of such
Holder's Notes pursuant to the offer described below (the "Change of Control
Offer") at a purchase price (the "Change of Control Purchase Price") equal to
101% of the principal amount thereof, plus accrued and unpaid interest and
Special Interest, if any, to the purchase date (subject to the right of Holders
on the relevant record date to receive interest due on the relevant Interest
Payment Date).
Within 30 days following any Change of Control, the Company
shall:
(a) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Xxxxx News Service or similar business
news service in the United States; and
(b) send, by first-class mail, with a copy to the
Trustee, to each Holder, at such Holder's address appearing in the
securities register maintained in respect of the Notes by the Registrar
(the "Security Register"):
(1) that a Change of Control has occurred and a
Change of Control Offer is being made pursuant to the covenant
entitled "Repurchase at the Option of Holders Upon a Change of
Control" and that all Notes timely tendered will be accepted
for payment;
(2) the Change of Control Purchase Price and the
purchase date, which shall be, subject to any contrary
requirements of applicable law, a Business Day no earlier than
30 days nor later than 60 days from the date such notice is
mailed;
(3) the circumstances and relevant facts
regarding the Change of Control (including information with
respect to pro forma historical income, cash flow and
capitalization after giving effect to the Change of Control);
and
(4) the procedures that Holders must follow in
order to tender their Notes (or portions thereof) for payment,
and the procedures that Holders must follow in order to
withdraw an election to tender Notes (or portions thereof) for
payment.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of the covenant described hereunder,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the covenant described
hereunder by virtue of such compliance.
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Section 4.18. Covenant Suspension.
During any period of time that:
(a) the Notes have Investment Grade Ratings from both
Rating Agencies and
(b) no Default or Event of Default has occurred and is
continuing under the Indenture,
the Company and the Restricted Subsidiaries will not be subject to the
following provisions of this Indenture:
(i) Section 4.09,
(ii) Section 4.10,
(iii) Section 4.12,
(iv) Section 4.13,
(v) Section 4.14,
(vi) Section 4.15,
(vii) clause (x) of the third paragraph (and such clause
(x) as referred to in the first paragraph) of Section 4.16, and
(viii) clause (e) of the first paragraph of Section 5.01
(collectively, the "Suspended Covenants").
In the event that the Company and the Restricted Subsidiaries are not subject to
the Suspended Covenants for any period of time as a result of the preceding
sentence and, subsequently, one or both of the Rating Agencies withdraws its
ratings or downgrades the ratings assigned to the Notes below the required
Investment Grade Ratings or a Default or Event of Default occurs and is
continuing, then the Company and the Restricted Subsidiaries will thereafter
again be subject to the Suspended Covenants and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal, downgrade, Default or Event of Default will be calculated in
accordance with the terms of Section 4.10 as though such covenant had been in
effect during the entire period of time from the Issue Date.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Property.
The Company shall not merge, consolidate or amalgamate with or
into any other Person (other than a merger of a Wholly Owned Restricted
Subsidiary into the Company) or sell, transfer, assign, lease, convey or
otherwise dispose of all or substantially all its Property in any one
transaction or series of transactions unless:
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(a) the Company shall be the surviving Person (the
"Surviving Person") or the Surviving Person (if other than the Company)
formed by such merger, consolidation or amalgamation or to which such
sale, transfer, assignment, lease, conveyance or disposition is made
shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia;
(b) the Surviving Person (if other than the Company)
expressly assumes, by supplemental indenture in form satisfactory to
the Trustee, executed and delivered to the Trustee by such Surviving
Person, the due and punctual payment of the principal of, and premium,
if any, and interest and Special Interest, if any, on, all the Notes,
according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be
performed by the Company;
(c) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all the
Property of the Company, such Property shall have been transferred as
an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such
transaction or series of transactions on a pro forma basis (and
treating, for purposes of this clause (d) and clause (e) below, any
Debt that becomes, or is anticipated to become, an obligation of the
Surviving Person or any Restricted Subsidiary as a result of such
transaction or series of transactions as having been Incurred by the
Surviving Person or such Restricted Subsidiary at the time of such
transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing;
(e) immediately after giving effect to such transaction
or series of transactions on a pro forma basis, the Company or the
Surviving Person, as the case may be, would be able to Incur at least
$1.00 of additional Debt under clause (1) of the first paragraph of
Section 4.09;
(f) the Company shall deliver, or cause to be delivered,
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction and the supplemental indenture, if any,
in respect thereto comply with this Section 5.01 and that all
conditions precedent herein provided for relating to such transaction
have been satisfied; and
(g) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such transaction 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 transaction had not occurred.
Section 5.02. Successor Corporation Substituted.
The Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of the Company under this Indenture, but
the predecessor Company in the case of:
(a) a sale, transfer, assignment, conveyance or other
disposition (unless such sale, transfer, assignment, conveyance or
other disposition is of all the assets of the Company as an entirety or
virtually as an entirety), or
(b) a lease,
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shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
(a) An "Event of Default" occurs if:
(1) the Company fails to make the payment of any
interest or Special Interest on the Notes when the same
becomes due and payable, and such failure continues for a
period of 30 days;
(2) the Company fails to make the payment of any
principal of, or premium, if any, on, any of the Notes when
the same becomes due and payable at its Stated Maturity, upon
acceleration, redemption, optional redemption, required
repurchase or otherwise;
(3) the Company fails to comply with Article 5;
(4) the Company fails to comply with any other
covenant or agreement in the Notes or in this Indenture (other
than a failure that is the subject of the foregoing clause
(1), (2) or (3)) and such failure continues for 30 days after
written notice is given to the Company as provided below;
(5) upon a default under any Debt by the Company
or any Restricted Subsidiary that results in acceleration of
the maturity of such Debt, or the Company or any of its
Restricted Subsidiaries fails to pay any such Debt at
maturity, in an aggregate amount greater than $20.0 million or
its foreign currency equivalent at the time;
(6) any judgment or judgments for the payment of
money in an aggregate amount in excess of $20.0 million (or
its foreign currency equivalent at the time) shall be rendered
against the Company or any Restricted Subsidiary and such
judgment or judgments shall not be waived, satisfied or
discharged for any period of 30 consecutive days during which
a stay of enforcement shall not be in effect;
(7) the Company or any of its Significant
Subsidiaries pursuant to or within the meaning of Bankruptcy
Law:
(i) commences a voluntary
case,
(ii) consents to the entry of
an order for relief against it in an
involuntary case,
(iii) consents to the
appointment of a custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment
for the benefit of its creditors, or
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(v) generally is not paying
its debts as they become due; and
(8) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against the
Company or any of its Significant
Subsidiaries in an involuntary case; or
(ii) appoints a receiver,
trustee, assignee, liquidator or similar
official of the Company or any of its
Significant Subsidiaries or for all or
substantially all of the property of the
Company or any of its Significant
Subsidiaries; or
(iii) orders the liquidation of
the Company or any of its Significant
Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
(b) A Default under clause (4) is not be an Event of
Default until the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding notify the Company of the Default
and the Company does not cure such Default within the time specified after
receipt of such notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default."
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default
specified in clauses (a)(7) or (8) of Section 6.01 hereof, with respect to the
Company), shall have occurred and be continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding
may declare to be immediately due and payable, by written notice to the Company
(and to the Trustee if given by the Holders), the principal amount of all the
Notes then outstanding, plus accrued but unpaid interest and Special Interest,
if any, to the date of acceleration. In the case of an Event of Default
specified in clauses (a)(7) or (8) of Section 6.01 hereof, with respect to the
Company or any Significant Subsidiary shall occur, such amount with respect to
all the Notes will become due and payable immediately without any declaration or
other act on the part of the Trustee or the Holders. Holders may not enforce
this Indenture or the Notes except as provided in this Indenture. Subject to the
limitations described in this Article 6, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal, premium, if any, or interest or Special
Interest, if any) if the Trustee determines in good faith that withholding
notice is in the Holders' interest.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Special Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
62
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, or interest or Special
Interest on, the Notes; provided, however, that after any acceleration, but
before a judgment or decree based on acceleration is obtained by the Trustee,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may rescind and annul such acceleration if all Events of Default,
other than the nonpayment of accelerated principal, premium or interest or
Special Interest, have been cured or waived as provided in this Indenture. 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 6.05. Control by Majority.
Subject to Section 7.01, in case an Event of Default shall
occur and be continuing, the Trustee will be under no obligation to exercise any
of its rights or powers under this Indenture at the request or direction of any
of the Holders, unless such Holders shall have offered to the Trustee reasonable
indemnity. Subject to Section 7.07, the Holders of a majority in aggregate
principal amount of the Notes then outstanding will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Notes.
Section 6.06. Limitation on Suits.
No Holder will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default,
(b) Holders of at least 25% in aggregate principal amount
of the Notes then outstanding have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as
trustee, and
(c) the Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the Notes then
outstanding a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days.
The preceding limitations do not apply to a suit instituted by
a Holder for enforcement of payment of the principal of, and premium, if any, or
interest or Special Interest on, a Note on or after the respective due dates
expressed in such Note.
A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
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Section 6.07. 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 and Special Interest, if any, on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in clauses (a)(1) or (2) of
Section 6.01 occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal of, premium, if any, and interest and Special
Interest, if any, remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. 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 any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 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 7.07 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 that 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 Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expenses
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 Notes for
principal, premium, if any, and interest and Special Interest, if any, ratably,
without preference or priority of any kind, according
64
to the amounts due and payable on the Notes for principal, premium, if any, and
interest and Special Interest, if any, 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 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be
determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
65
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(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 and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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(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 or Event of Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the specific Default or Event of Default, the Notes and this Indenture.
(i) Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
(j) The Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder.
(k) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Section 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest or Special Interest, if any, on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15, 2002,
and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders a brief report dated as of such reporting date that complies with TIA
ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA ss. 313(c).
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A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee or any predecessor
Trustee against any and all losses, claims, damages, penalties, fines,
liabilities or expenses, including incidental and out-of-pocket expenses and
reasonable attorneys fees ("losses") incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such losses may be attributable to its gross
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim, and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The
Company need not reimburse any expense or indemnify against any loss liability
or expense incurred by the Trustee through the Trustee's own willful misconduct,
gross negligence or bad faith.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal,
premium, if any, and interest and Special Interest, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clauses (a)(7) or (8) of Section 6.01 hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee; provided, however, that all sums owing to the Trustee
hereunder shall have been paid. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
Person organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $150,000,000 as set forth in its most recent published annual report of
condition.
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This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss.
310(b).
Section 7.11. Preferential Collection of Claims Against
Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest and Special Interest, if any, on
such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. If the Company
exercises under Section 8.01 hereof the option applicable to this Section 8.02,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
payment of the Notes may not be accelerated because of an Event of Default.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.05, 4.06 and
4.08 through 4.18 hereof, and the operation of Section 5.01(e) hereof, with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes 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
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connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. If the
Company exercises under Section 8.01 hereof the option applicable to
this Section 8.03, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, payment of the Notes may not be
accelerated because of an Event of Default specified in clauses (a)(4)
(with respect to the covenants contained in Sections 4.05, 4.06 and
4.08 through 4.18 hereof), (5), (6), (7) and (8) (but in the case of
clauses (a) (7) and (8) of Section 6.01 hereof, with respect to
Significant Subsidiaries only or because of a failure of the Company to
comply with Section 5.01(e)).
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes.
The Legal Defeasance or Covenant Defeasance may be exercised
only if:
(a) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
principal of and interest and Special Interest, if any, on the Notes to
maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent certified public
accountants expressing their opinion that the payments of principal and
interest and Special Interest, if any, when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal and interest and
Special Interest, if any, when due on all the Notes to maturity or
redemption, as the case may be;
(c) 123 days pass after the deposit is made and during
the 123-day period no Default described in clauses (a) (7) or (8) under
Section 6.01 occurs with respect to the Company or any other Person
making such deposit which is continuing at the end of the period;
(d) no Default or Event of Default has occurred and is
continuing on the date of such deposit and after giving effect thereto;
(e) such deposit does not constitute a default under any
other agreement or instrument binding on the Company;
(f) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(g) in the case of the Legal Defeasance option, the
Company delivers to the Trustee an Opinion of Counsel stating that:
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(1) the Company has received from the Internal
Revenue Service a ruling, or
(2) since the date of this Indenture there has
been a change in the applicable federal income tax law, to the
effect, in either case, that, and based thereon such Opinion
of Counsel shall confirm that, the Holders 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 time as would have been the case if such Legal Defeasance
has not occurred;
(h) in the case of the Covenant Defeasance option, the
Company delivers to the Trustee an Opinion of Counsel to the effect
that the Holders 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; and
(i) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes have been
complied with as required by this Indenture.
Section 8.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of all sums due and to become due thereon
in respect of principal, premium, if any, and interest and Special Interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.04 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 Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the certification
delivered under Section 8.04(b) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest or Special Interest, if any, on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
or Special Interest, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder shall
72
thereafter, as an unsecured creditor, look only to the Company 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 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 shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 8.02 or
8.03 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 obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest or Special Interest, if
any, on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders to receive such payment from
the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency
in any manner that is not adverse in any material respect to any
Holders,
(b) provide for the assumption by a successor corporation
of the obligations of the Company under this Indenture,
(c) provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code),
(d) add Guarantees with respect to the Notes or to
release Guarantors of the Notes from Guaranties with respect to the
Notes as permitted by the terms of this Indenture,
(e) secure the Notes, to add to the covenants of the
Company for the benefit of the Holders or to surrender any right or
power conferred upon the Company,
(f) make any change that does not adversely affect the
rights of any Holders,
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(g) make any change to comply with any requirement of the
SEC in connection with the qualification of this Indenture under the
TIA; or
(h) provide for the issuance of Additional Notes in
accordance with this Indenture.
Upon the request of the Company accompanied by a Board
Resolution of the Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture and the Notes with the
consent of the Holders of at least a majority in principal amount of the Notes,
including Additional Notes, if any, then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest or
Special Interest, if any, on the Notes, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, including Additional
Notes, if any, voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Upon the request of the Company accompanied by a Board
Resolution of the Board of Directors authorizing the execution of any such
amended or 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 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Indenture unless such amended or supplemental Indenture directly
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 amended or supplemental Indenture.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for the consent of the Holders under
this Section 9.02 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 to such Holder's
address appearing in the Security Register a notice
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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 amended or supplemental Indenture
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes, including Additional Notes, if any,
then outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
Without the consent of each Holder, an amendment or waiver under this Section
9.02 may not:
(a) reduce the amount of Notes whose Holders must consent
to an amendment or waiver,
(b) reduce the rate of or extend the time for payment of
interest or Special Interest on any Note,
(c) reduce the principal of or extend the Stated Maturity
of any Note,
(d) make any Note payable in money other than that stated
in the Note,
(e) impair the right of any Holder to receive payment of
principal of and interest or Special Interest on such Holder's Notes on
or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Notes,
(f) subordinate the Notes to any other obligation of the
Company,
(g) release any security interest that may have been
granted in favor of the Holders other than pursuant to the terms of
such security interest,
(h) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may be redeemed, pursuant to
Section 3.07.
(i) reduce the premium payable upon a Change of Control
or, at any time after a Change of Control has occurred, change the time
at which the Change of Control Offer relating thereto must be made or
at which the Notes must be repurchased pursuant to such Change of
Control Offer, or
(j) at any time after the Company is obligated to make a
Prepayment Offer with the Excess Proceeds from Asset Sales, change the
time at which such Prepayment Offer must be made or at which the Notes
must be repurchased pursuant thereto.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note if the Trustee
receives written notice
75
of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon an Officer's Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture.
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or
(ii) all Notes that have not been delivered to the Trustee
for cancellation have become due and payable by reason of the making of
a notice of redemption or otherwise or will become due and payable
within one year and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, money or U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest and
Special Interest, if any, to the date of maturity or redemption;
(b) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a
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breach or violation of, or constitute a default under, any other
instrument to which the Company is a party or by which the Company is
bound;
(c) the Company has paid or caused to be paid all sums
payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money and/or
U.S. Government Obligations toward the payment of the Notes at maturity
or the redemption date, as the case may be.
The Company shall deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 10.02. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 10.03 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 10.02, the
"Trustee") pursuant to Section 10.01 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest and
Special Interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
Section 10.03. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest or Special Interest, if any, on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder
shall thereafter look only to the Company 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 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.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties shall
control.
77
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next-day delivery, to the other's address:
If to the Company:
Coventry Health Care, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
With a copy to:
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx
XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
If to the Trustee:
First Union National Bank
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: CMG/Corporate Trust Group (VA-3279)
The Company or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next-day delivery to its address shown on the
Security Register. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
78
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been complied with.
Section 11.05. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and 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
or she has made such examination or investigation as is necessary to
enable such Person 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.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors,
Officers, Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company as such, shall have any liability for
any obligations of the Company under the Notes, this
79
Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 11.10. Successors.
All covenants and agreements of the Company in this Indenture
and the Notes shall bind its successors. All covenants and agreements of the
Trustee in this Indenture shall bind its successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
80
SIGNATURES
Dated as of February 1, 2002
Coventry Health Care, Inc.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
First Union National Bank,
as Trustee
By: /s/ Xxxxx XxXxxxxxx
-----------------------------------
Name: Xxxxx XxXxxxxxx
Title: Vice President
81
===============================================================================
EXHIBIT A
(Face of [Note])
8 1/8% SENIOR NOTES 2012
CUSIP
--------------
NO. $
------- ------------------
COVENTRY HEALTH CARE, INC.
promises to pay to _______ or registered assigns, the principal sum of
_________________ Dollars ($______________) on __________, 20__.
Interest Payment Dates: February 15 and August 15, commencing August 15, 2002
Record Dates: February 1 and August 1.
COVENTRY HEALTH CARE, INC.
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
This is one of the Global Notes
referred to in the within-
mentioned Indenture:
First Union National Bank,
as Trustee
By:
---------------------------------
Authorized Signatory
Dated _____________, 20__
===============================================================================
A-1
(Back of [Note])
8 1/8% Senior Notes due 2012
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE ISSUER.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
[Private Placement Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, BEFORE THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) UNDER A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT
A-2
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) UNDER OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT BEFORE ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSES (D), (E), OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Coventry Health Care, Inc., a Delaware corporation (the
"Issuer"), promises to pay interest on the principal amount of this Note at 8
1/8% per annum until maturity and shall pay Special Interest, if any, as
provided in Section 4 of the Registration Rights Agreement. The Issuer shall
pay interest semi-annually on February 15 and August 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided, however, that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided further, that the first Interest Payment Date shall be August
15, 2002. The Issuer shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of
the rate then in effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Issuer shall pay interest on the Notes (except
defaulted interest) to the Holders at the close of business on the February 1
or August 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest and Special Interest, if any, at the office or agency of the Issuer
maintained for such purpose within or without the City and State of New York,
or, at the option of the Issuer, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the Security Register;
provided, however, that payment by wire transfer of immediately available funds
shall be required with respect to principal of and interest and Special
Interest, if any,, and premium, if any, on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to
the Issuer or the Paying Agent. Such payment shall be in such coin or currency
of the
X-0
Xxxxxx Xxxxxx xx Xxxxxxx as at the time of payment is legal tender for payment
of public and private debts.
3. Paying Agent and Registrar. Initially, First Union National Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Issuer may change any Paying Agent or Registrar without notice to any Holder.
The Issuer or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Issuer issued the Notes under an Indenture dated as of
February 1, 2002 ("Indenture") between the Issuer and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To
the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are obligations of the Issuer limited to $350,000,000 in aggregate
principal amount.
5. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) below,
the Notes will not be redeemable at the option of the Issuer prior to February
15, 2007. Starting on that date, the Issuer may redeem all or any portion of
the Notes, at once or over time, after giving the required notice under the
Indenture. The Notes may be redeemed at the redemption prices set forth below,
plus accrued and unpaid interest and Special Interest, if any, to the
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date). The following
prices are for Notes redeemed during the 12- month period commencing on
February 15 of the years set forth below, and are expressed as percentages of
principal amount:
Year Percentage
---- ----------
2007................................................................................................ 104.063%
2008................................................................................................ 102.708%
2009................................................................................................ 101.354%
2010 and thereafter................................................................................. 100.000%
(b) At any time prior to February 15, 2007, the Issuer
may redeem all or any portion of the Notes, at once or over time, after giving
the required notice under the Indenture, at a redemption price equal to the
greater of:
(i) 100% of the principal amount of the Notes
to be redeemed, and
(ii) the sum of the present values of (A) the
redemption price of the Notes at February 15 , 2007 (as set forth in
the preceding paragraph) and (B) the remaining scheduled payments of
interest from the redemption date through February 15, 2007, but
excluding accrued and unpaid interest through the redemption date,
discounted to the redemption date at the Treasury Rate plus 50 basis
points,
plus, in either case, accrued and unpaid interest and Special Interest, if any,
to the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date).
A-4
Any notice to Holders of a redemption pursuant to clause (b)
shall include the appropriate calculation of the redemption price, but need not
include the redemption price itself. The actual redemption price, calculated as
described above, shall be set forth in an Officers' Certificate delivered to
the Trustee no later than two Business Days prior to the redemption date.
(c) At any time and from time to time, prior to February
15, 2005, the Issuer may redeem up to a maximum of 33-1/3% of the aggregate
principal amount of the Notes with the proceeds of one or more Public Equity
Offerings, at a redemption price equal to 108.125% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date); provided, however,
that after giving effect to any such redemption, at least 66-2/3% of the
original aggregate principal amount of the Notes issued on the Issue Date
remains outstanding. Any such redemption shall be made within 75 days of such
Public Equity Offering upon not less than 30 nor more than 60 days' prior
notice.
(d) Any prepayment pursuant to this paragraph shall be
made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. Mandatory Redemption. The Issuer shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. Notice of Redemption. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions
thereof called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuer
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered holder of a Note may be treated
as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes voting as a single class, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting
as a single class. Without the consent of any Holder, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, omission, defect or
inconsistency in any manner that is not adverse in any material respect to any
Holder, provide for the assumption by a successor corporation of the
obligations of the Issuer under the Indenture, provide for uncertificated Notes
in addition to or in place of certificated Notes (provided that the
uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code), add Guarantees with respect
A-5
to the Notes or to release Guarantors of the Notes from Guarantees with respect
to the Notes as permitted by the terms of the Indenture, secure the Notes, to
add to the covenants of the Issuer for the benefit of the Holders or to
surrender any right or power conferred upon the Issuer, make any change that
does not adversely affect the rights of any Holder, make any change to comply
with any requirement of the SEC in connection with the qualification of the
Indenture under the TIA or provide for the issuance of Additional Notes in
accordance with the Indenture.
11. Defaults and Remedies. An Event of Default will occur under the
Indenture if: (1) the Issuer fails to make the payment of any interest or
Special Interest on the Notes when the same becomes due and payable, and such
failure continues for a period of 30 days; (2) the Issuer fails to make the
payment of any principal of, or premium, if any, on, any of the Notes when the
same becomes due and payable at its Stated Maturity, upon acceleration,
redemption, optional redemption, required repurchase or otherwise; (3) the
Issuer fails to comply with Article 5; (4) the Issuer fails to comply with any
other covenant or agreement in the Notes or in the Indenture (other than a
failure that is the subject of the foregoing clause (1), (2) or (3)) and such
failure continues for 30 days after written notice is given to the Issuer as
provided provided in the Indenture; (5) upon a default under any Debt by the
Issuer or any Restricted Subsidiary that results in acceleration of the
maturity of such Debt, or the Issuer or any of its Restricted Subsidiaries
fails to pay any such Debt at maturity, in an aggregate amount greater than
$20.0 million or its foreign currency equivalent at the time; (6) any judgment
or judgments for the payment of money in an aggregate amount in excess of $20.0
million (or its foreign currency equivalent at the time) shall be rendered
against the Issuer or any Restricted Subsidiary and such judgment or judgments
shall not be waived, satisfied or discharged for any period of 30 consecutive
days during which a stay of enforcement shall not be in effect; or (7) certain
events of bankruptcy or insolvency with respect to the Issuer or the
Significant Subsidiaries occurs. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Special Interest) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event
of Default in the payment of interest or Special Interest on, or the principal
of, the Notes. The Issuer is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Issuer is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
12. Trustee Dealings with Issuer. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its
Affiliates, as if it were not the Trustee.
13. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder, of the Issuer, as such, shall have any liability
for any obligations of the Issuer under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes; such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
A-6
14. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
15. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Coventry Health Care, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
-------------------------------------------------------------------------------
Date:
----------------------
Your Signature:
-------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
--------------
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note
for an interest in another Global Note or for a Definitive Note, or exchanges
of an interest in another Global Note or a Definitive Note for an interest in
this Global Note, have been made:
Principal Amount Signature of
Amount of decrease in Amount of increase in of this Global Note authorized officer of
Principal Amount Principal Amount following such decrease Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- --------------------- --------------------- ----------------------- ---------------------
A-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Coventry Health Care, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
First Union National Bank, as Trustee
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: CMG/Corporate Trust Group (VA-3279)
Re: 8 1/8% Senior Notes due 2012
Reference is hereby made to the Indenture, dated as of
February 1, 2002 (the "Indenture"), among Coventry Health Care, Inc., as issuer
(the "Issuer"), and First Union National Bank, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
___________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Note is being transferred to a
Person that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed
in, on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
B-1
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture
and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE
DELIVERY OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the
Issuer or a Subsidiary thereof;
or
(c) [ ] such Transfer is being effected
pursuant to an effective registration statement under the Securities
Act and in compliance with the prospectus delivery requirements of the
Securities Act;
or
(d) [ ] such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from
the registration requirements of the Securities Act other than Rule
144A, Rule 144 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form
of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
B-2
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED
DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S.
(i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes or Restricted Definitive Notes and in the
Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated:
-------------------------------------
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________),
or
(iii)[ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________),
or
(iii)[ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________);
or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Coventry Health Care, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
First Union National Bank, as Trustee
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: CMG/Corporate Trust Group (VA-3279)
Re: 8 1/ 8% Senior Notes due 2012
-----------------------------
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of February 1, 2002 (the
"Indenture"), among Coventry Health Care, Inc., as issuer (the "Issuer"), and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes
to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with
the Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
C-1
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated:
-------------------------------------
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Coventry Health Care, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
First Union National Bank, as Trustee
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: CMG/Corporate Trust Group (VA-3279)
Re: 8 1/8% Senior Notes due 2012
Reference is hereby made to the Indenture, dated as of February 1, 2002 (the
"Indenture"), among Coventry Health Care, Inc., as issuer (the "Issuer"), and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Notes or any interest therein
except in compliance with, such restrictions and conditions and the United
States Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the Notes
or any interest therein, we will do so only (A) to the Issuer or any Subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Issuer a signed letter substantially in the form of this letter and, if
such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Issuer to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (E) pursuant to the provisions of
Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Issuer such certifications, legal opinions and other information as you and
the Issuer may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest
therein purchased by us for our own account or for one or more accounts (each
of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Issuer 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.
------------------------------------
[Insert Name of Accredited Investor]
By:
--------------------------------
Name:
Title:
D-2
TABLE OF CONTENTS
CROSS-REFERENCE TABLE*
Trust Indenture Act Indenture
------------------- ---------
310 (a)(1)......................................................................................... 7.10
(a)(2)............................................................................................. 7.10
(a)(3)............................................................................................. N.A.
(a)(4)............................................................................................. N.A.
(a)(5)............................................................................................. 7.10
(b)................................................................................................ 7.10
(c)................................................................................................ N.A.
311(a)............................................................................................. 7.11
(b)................................................................................................ 7.11
(c)................................................................................................ N.A.
312 (a)............................................................................................ 2.05
(b)................................................................................................ 10.03
(c)................................................................................................ 10.03
313 (a)............................................................................................ 7.06
(b)(2)............................................................................................. 7.07
(c)................................................................................................ 7.06; 10.02
314 (a)............................................................................................ 4.03; 10.02
(c)(1)............................................................................................. 10.04
(c)(2)............................................................................................. 10.04
(c)(3)............................................................................................. N.A.
(e)................................................................................................ 10.05
(f)................................................................................................ NA
315 (a)............................................................................................ 7.01
(b)................................................................................................ 7.05, 10.02
(c)................................................................................................ 7.01
(d)................................................................................................ 7.01
(e)................................................................................................ 6.11
316 (a)(last sentence)............................................................................. 2.09
(a)(1)(A).......................................................................................... 6.05
(a)(1)(B).......................................................................................... 6.04
(a)(2)............................................................................................. N.A.
(b)................................................................................................ 6.07
(c)................................................................................................ 2.12
317 (a)(1)......................................................................................... 6.08
(a)(2)............................................................................................. 6.09
(b)................................................................................................ 2.04
318 (a)............................................................................................ 10.01
(b)................................................................................................ N.A.
(c)................................................................................................ 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
i
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.........................................................1
Section 1.01. Definitions..........................................................................1
Section 1.02. Other Definitions...................................................................25
Section 1.03. Incorporation by Reference of Trust Indenture Act...................................25
Section 1.04. Rules of Construction...............................................................25
ARTICLE 2. THE NOTES.........................................................................................26
Section 2.01. Form and Dating.....................................................................26
Section 2.02. Execution and Authentication........................................................27
Section 2.03. Registrar and Paying Agent..........................................................27
Section 2.04. Paying Agent to Hold Money in Trust.................................................28
Section 2.05. Holder Lists........................................................................28
Section 2.06. Transfer and Exchange...............................................................28
Section 2.07. Replacement Notes...................................................................40
Section 2.08. Outstanding Notes...................................................................40
Section 2.09. Treasury Notes......................................................................41
Section 2.10. Temporary Notes.....................................................................41
Section 2.11. Cancellation........................................................................41
Section 2.12. Defaulted Interest..................................................................41
Section 2.13. CUSIP or ISIN Numbers...............................................................42
Section 2.14. Special Interest....................................................................42
ARTICLE 3. REDEMPTION AND PREPAYMENT.........................................................................42
Section 3.01. Notices to Trustee..................................................................42
Section 3.02. Selection of Notes to be Redeemed...................................................42
Section 3.03. Notice of Redemption................................................................43
Section 3.04. Effect of Notice of Redemption......................................................43
Section 3.05. Deposit of Redemption Price.........................................................43
Section 3.06. Notes Redeemed in Part..............................................................44
Section 3.07. Optional Redemption.................................................................44
Section 3.08. Mandatory Redemption................................................................45
ARTICLE 4. COVENANTS.........................................................................................45
Section 4.01. Payment of Notes....................................................................45
Section 4.02. Maintenance of Office or Agency.....................................................46
Section 4.03. Reports.............................................................................46
Section 4.04. Compliance Certificate..............................................................46
ii
Section 4.05. Taxes...............................................................................47
Section 4.06. Stay, Extension and Usury Laws......................................................47
Section 4.07. Corporate Existence.................................................................47
Section 4.08. Payments for Consent................................................................48
Section 4.09. Limitation on Debt..................................................................48
Section 4.10. Limitation on Restricted Payments...................................................50
Section 4.11. Limitation on Liens.................................................................52
Section 4.12. Limitation on Asset Sales...........................................................52
Section 4.13. Limitation on Restrictions on Distributions from Restricted Subsidiaries............54
Section 4.14. Limitation on Transactions with Affiliates..........................................55
Section 4.15. Limitation on Sale and Leaseback Transactions.......................................56
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.............................56
Section 4.17. Repurchase at the Option of Holders Upon a Change of Control........................57
Section 4.18. Covenant Suspension.................................................................58
ARTICLE 5. SUCCESSORS........................................................................................59
Section 5.01. Merger, Consolidation, or Sale of Property..........................................59
Section 5.02. Successor Corporation Substituted...................................................60
ARTICLE 6. DEFAULTS AND REMEDIES.............................................................................60
Section 6.01. Events of Default...................................................................60
Section 6.02. Acceleration........................................................................62
Section 6.03. Other Remedies......................................................................62
Section 6.04. Waiver of Past Defaults.............................................................62
Section 6.05. Control by Majority.................................................................62
Section 6.06. Limitation on Suits.................................................................63
Section 6.07. Rights of Holders to Receive Payment................................................63
Section 6.08. Collection Suit by Trustee..........................................................63
Section 6.09. Trustee May File Proofs of Claim....................................................63
Section 6.10. Priorities..........................................................................64
Section 6.11. Undertaking for Costs...............................................................64
ARTICLE 7. TRUSTEE...........................................................................................65
Section 7.01. Duties of Trustee...................................................................65
Section 7.02. Rights of Trustee...................................................................66
iii
Section 7.03. Individual Rights of Trustee........................................................67
Section 7.04. Trustee's Disclaimer................................................................67
Section 7.05. Notice of Defaults..................................................................67
Section 7.06. Reports by Trustee to Holders.......................................................67
Section 7.07. Compensation and Indemnity..........................................................67
Section 7.08. Replacement of Trustee..............................................................68
Section 7.09. Successor Trustee by Merger, etc....................................................69
Section 7.10. Eligibility; Disqualification.......................................................69
Section 7.11. Preferential Collection of Claims Against Company...................................69
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..........................................................70
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance............................70
Section 8.02. Legal Defeasance and Discharge......................................................70
Section 8.03. Covenant Defeasance.................................................................70
Section 8.04. Conditions to Legal or Covenant Defeasance..........................................71
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions......................................................72
Section 8.06. Repayment to Company................................................................72
Section 8.07. Reinstatement.......................................................................73
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER..................................................................73
Section 9.01. Without Consent of Holders of Notes.................................................73
Section 9.02. With Consent of Holders of Notes....................................................74
Section 9.03. Compliance with Trust Indenture Act.................................................75
Section 9.04. Revocation and Effect of Consents...................................................75
Section 9.05. Notation on or Exchange of Notes....................................................75
Section 9.06. Trustee to Sign Amendments, etc.....................................................76
ARTICLE 10. SATISFACTION AND DISCHARGE........................................................................76
Section 10.01. Satisfaction and Discharge..........................................................76
Section 10.02. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions......................................................77
Section 10.03. Repayment to Company................................................................77
ARTICLE 11. MISCELLANEOUS....................................................................................77
Section 11.01. Trust Indenture Act Controls........................................................77
iv
Section 11.02. Notices.............................................................................77
Section 11.03. Communication by Holders with Other Holders.........................................78
Section 11.04. Certificate and Opinion as to Conditions Precedent..................................78
Section 11.05. Statements Required in Certificate or Opinion.......................................79
Section 11.06. Rules by Trustee and Agents.........................................................79
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders............79
Section 11.08. Governing Law.......................................................................79
Section 11.09. No Adverse Interpretation of Other Agreements.......................................80
Section 11.10. Successors..........................................................................80
Section 11.11. Severability........................................................................80
Section 11.12. Counterpart Originals...............................................................80
Section 11.13. Table of Contents, Headings, etc....................................................80
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EXHIBITS PAGE
-------- ----
Exhibit A FORM OF NOTE...............................................................A-1
Exhibit B FORM OF CERTIFICATE OF TRANSFER............................................B-1
Exhibit C FORM OF CERTIFICATE OF EXCHANGE............................................C-1
Exhibit D FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
vi
