EXECUTION COPY
EXHIBIT 4.1
National Nephrology Associates, Incorporated, as Issuer
The Guarantors Named Herein, as Guarantors
to
Xxxxx Fargo Bank Minnesota, N.A., as Trustee
----------------------------
INDENTURE
Dated as of October 22, 2003
----------------------------
9% SENIOR SUBORDINATED NOTES DUE 2011
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1)....................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(a)(5)..................................................... 7.10
(b)........................................................ 7.10
(c)........................................................ N.A.
311(a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)........................................................ 2.06
(b)........................................................ 13.03
(c)........................................................ 13.03
313(a)........................................................ 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 13.02
(d)........................................................ 7.06
314(a)........................................................ 13.05
(b)........................................................ N.A.
(c)(1)..................................................... N.A.
(c)(2)..................................................... N.A.
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 13.05
(f)........................................................ N.A.
315(a)........................................................ N.A.
(b)........................................................ N.A.
(c)........................................................ N.A.
(d)........................................................ N.A.
(e)........................................................ N.A.
316(a)(last sentence)......................................... N.A.
(a)(1)(A).................................................. N.A.
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ N.A.
(c)........................................................ 13.13
317(a)(1)..................................................... N.A.
(a)(2)..................................................... N.A.
(b)........................................................ N.A.
318(a)........................................................ N.A.
i
(b)........................................................ N.A.
(c)........................................................ 13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
ii
TABLE OF CONTENTS
CROSS-REFERENCE TABLE............................................................................... i
ARTICLE ONE Definitions and Incorporation by Reference.............................................. 1
Section 1.01. Definitions....................................................................... 1
Section 1.02. Other Definitions................................................................. 22
Section 1.03. Incorporation by Reference of Trust Indenture Act................................. 22
Section 1.04. Rules of Construction............................................................. 23
ARTICLE TWO The Notes............................................................................... 23
Section 2.01. Form and Dating................................................................... 23
Section 2.02. Execution and Authentication...................................................... 25
Section 2.03. Methods of Receiving Payments on the Notes........................................ 25
Section 2.04. Registrar and Paying Agent........................................................ 26
Section 2.05. Paying Agent to Hold Money in Trust............................................... 26
Section 2.06. Holder Lists...................................................................... 26
Section 2.07. Transfer and Exchange............................................................. 27
Section 2.08. Replacement Notes................................................................. 41
Section 2.09. Outstanding Notes................................................................. 41
Section 2.10. Treasury Notes.................................................................... 41
Section 2.11. Temporary Notes................................................................... 42
Section 2.12. Cancellation...................................................................... 42
Section 2.13. Defaulted Interest................................................................ 42
Section 2.14. CUSIP Numbers..................................................................... 42
ARTICLE THREE Redemption and Prepayment; Satisfaction and Discharge................................. 43
Section 3.01. Notices to Trustee................................................................ 43
iii
Section 3.02. Selection of Notes to Be Redeemed................................................. 43
Section 3.03. Notice of Redemption.............................................................. 43
Section 3.04. Effect of Notice of Redemption.................................................... 44
Section 3.05. Deposit of Redemption Price....................................................... 44
Section 3.06. Notes Redeemed in Part............................................................ 45
Section 3.07. Optional Redemption............................................................... 45
Section 3.08. Mandatory Redemption.............................................................. 46
Section 3.09. Excess Proceeds Offers............................................................ 46
Section 3.10. Application of Trust Money........................................................ 48
ARTICLE FOUR Covenants.............................................................................. 48
Section 4.01. Payment of Notes.................................................................. 48
Section 4.02. Maintenance of Office or Agency................................................... 48
Section 4.03. Reports........................................................................... 49
Section 4.04. Compliance Certificate............................................................ 49
Section 4.05. Taxes............................................................................. 50
Section 4.06. Stay, Extension and Usury Laws.................................................... 50
Section 4.07. Restricted Payments............................................................... 51
Section 4.08. Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries........ 55
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified Stock..................... 56
Section 4.10. Asset Sales....................................................................... 59
Section 4.11. Transactions with Affiliates...................................................... 61
Section 4.12. Liens. ........................................................................... 62
Section 4.13. Corporate Existence............................................................... 63
iv
Section 4.14. Limitation on Layering Debt....................................................... 63
Section 4.15. Offer to Repurchase upon a Change of Control...................................... 63
Section 4.16. Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries..... 65
Section 4.17. Unrestricted Subsidiaries......................................................... 65
Section 4.18. Payments for Consent.............................................................. 66
Section 4.19. Guarantees of Indebtedness by Restricted Subsidiaries............................. 66
Section 4.20. Issuances of Guarantees by New Wholly Owned Restricted Subsidiaries............... 67
Section 4.21. Lines of Business................................................................. 67
ARTICLE FIVE Successors............................................................................. 67
Section 5.01. Merger, Consolidation or Sale of Assets........................................... 67
ARTICLE SIX Defaults and Remedies................................................................... 69
Section 6.01. Events of Default and Remedies.................................................... 69
Section 6.02. Acceleration...................................................................... 70
Section 6.03. Other Remedies.................................................................... 72
Section 6.04. Waiver of Past Defaults........................................................... 72
Section 6.05. Control by Majority............................................................... 72
Section 6.06. Limitation on Suits............................................................... 73
Section 6.07. Rights of Holders of Notes to Receive Payment..................................... 73
Section 6.08. Collection Suit by Trustee........................................................ 73
Section 6.09. Trustee May File Proofs of Claim.................................................. 74
Section 6.10. Priorities........................................................................ 74
Section 6.11. Undertaking for Costs............................................................. 75
ARTICLE SEVEN Trustee............................................................................... 75
v
Section 7.01. Duties of Trustee................................................................. 75
Section 7.02. Certain Rights of Trustee......................................................... 76
Section 7.03. Individual Rights of Trustee...................................................... 77
Section 7.04. Trustee's Disclaimer.............................................................. 77
Section 7.05. Notice of Defaults................................................................ 77
Section 7.06. Reports by Trustee to Holders of the Notes........................................ 77
Section 7.07. Compensation and Indemnity........................................................ 78
Section 7.08. Replacement of Trustee............................................................ 78
Section 7.09. Successor Trustee by Merger, Etc.................................................. 79
Section 7.10. Eligibility; Disqualification..................................................... 79
Section 7.11. Preferential Collection of Claims Against Company................................. 80
ARTICLE EIGHT Defeasance and Covenant Defeasance.................................................... 80
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.......................... 80
Section 8.02. Legal Defeasance and Discharge.................................................... 80
Section 8.03. Covenant Defeasance............................................................... 81
Section 8.04. Conditions to Legal or Covenant Defeasance........................................ 81
Section 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions............................................. 82
Section 8.06. Repayment to the Company.......................................................... 83
Section 8.07. Reinstatement..................................................................... 83
ARTICLE NINE Amendment, Supplement and Waiver....................................................... 83
Section 9.01. Without Consent of Holders of Notes............................................... 83
Section 9.02. With Consent of Holders of Notes.................................................. 85
Section 9.03. Compliance with Trust Indenture Act............................................... 86
vi
Section 9.04. Revocation and Effect of Consents................................................. 86
Section 9.05. Notation on or Exchange of Notes.................................................. 87
Section 9.06. Trustee to Sign Amendments, Etc................................................... 87
ARTICLE TEN Subordination........................................................................... 87
Section 10.01. Agreement to Subordinate......................................................... 87
Section 10.02. Liquidation; Dissolution; Bankruptcy............................................. 87
Section 10.03. Default on Designated Senior Indebtedness........................................ 88
Section 10.04. Acceleration of Notes............................................................ 88
Section 10.05. When Distribution Must Be Paid Over.............................................. 88
Section 10.06. Notice by the Company............................................................ 89
Section 10.07. Subrogation...................................................................... 89
Section 10.08. Relative Rights.................................................................. 89
Section 10.09. Subordination May Not Be Impaired by the Company................................. 90
Section 10.10. Distribution or Notice to Representative......................................... 90
Section 10.11. Rights of Trustee and Paying Agent............................................... 90
Section 10.12. Authorization to Effect Subordination............................................ 91
ARTICLE ELEVEN Guarantees........................................................................... 91
Section 11.01. Guarantee........................................................................ 91
Section 11.02. Subordination of Guarantee....................................................... 92
Section 11.03. Limitation on Guarantor Liability................................................ 92
Section 11.04. Execution and Delivery of Guarantee.............................................. 93
Section 11.05. Releases of Guarantors........................................................... 93
ARTICLE TWELVE Satisfaction and Discharge........................................................... 94
Section 12.01. Satisfaction and Discharge....................................................... 94
vii
Section 12.02. Deposited Money and U.S. Government Obligations to be held in Trust;
Other Miscellaneous Provisions............................................. 95
Section 12.03. Repayment to the Company......................................................... 95
ARTICLE THIRTEEN Miscellaneous...................................................................... 95
Section 13.01. Trust Indenture Act Controls..................................................... 95
Section 13.02. Notices.......................................................................... 95
Section 13.03. Communication by Holders of Notes with Other Holders of Notes.................... 97
Section 13.04. Certificate and Opinion as to Conditions Precedent............................... 97
Section 13.05. Statements Required in Certificate or Opinion.................................... 97
Section 13.06. Rules by Trustee and Agents...................................................... 98
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders......... 98
Section 13.08. Governing Law.................................................................... 98
Section 13.09. Consent to Jurisdiction.......................................................... 98
Section 13.10. No Adverse Interpretation of Other Agreements.................................... 99
Section 13.11. Successors....................................................................... 99
Section 13.12. Severability..................................................................... 99
Section 13.13. Counterpart Originals............................................................ 99
Section 13.14. Acts of Holders.................................................................. 99
Section 13.15. Benefit of Indenture............................................................. 100
Section 13.16. Table of Contents, Headings, Etc................................................. 101
Section 13.17. Trustee Not Fiduciary for Holders of Senior Indebtedness......................... 101
EXHIBITS
Exhibit A1 FORM OF NOTE
viii
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
ix
INDENTURE dated as of October 22, 2003 among National
Nephrology Associates, Inc., a Delaware corporation (the "Company"), the
Guarantors (as defined below) and Xxxxx Fargo Bank Minnesota, N.A., a national
banking association, as Trustee.
The Company, the Guarantors and the Trustee (as defined below)
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined below) of the 9% Senior Subordinated Notes
due 2011 (the "Initial Notes," and together with any Exchange Notes and
Additional Notes, each as defined herein, the "Notes"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note substantially in the
form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that shall be issued in a denomination equal
to the outstanding principal amount at maturity of the Notes sold in reliance on
Rule 144A.
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person is merged with or into the Company or a
Subsidiary or becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person.
"Additional Notes" means any further Notes (other than the
Initial Notes issued on the date of this Indenture) issued under this Indenture
in accordance with the terms of this Indenture, including Sections 2.02 and 4.09
hereof, as part of the same series as the Initial Notes issued on the date
hereof, ranking equally with those Initial Notes in all respects subject to
compliance with Section 4.09 herein.
"Adjusted Treasury Rate" means the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of
the principal amount) equal to the Comparable Treasury Price for the redemption
date, calculated in accordance with standard market practice.
"Affiliate" means (x) with respect to any specified person,
(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 that owns, directly or indirectly, 10% or more of such specified
person's Capital Stock or (y) any executive officer or director of any person
specified in clause (x) hereof. For the purposes of this definition, "control,"
when used with respect to any specified person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Bank" means Bank of America, N.A. and its successors
under the Credit Agreement, in its capacity as administrative agent.
"Applicable Procedures" means, with respect to any transfer 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 or exchange.
"Asset Sale" means
(a) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by
way of merger, consolidation, sale and leaseback transaction
or similar arrangement) (collectively, a "transfer") by the
Company or any Restricted Subsidiary other than in the
ordinary course of business and
(b) the issue or sale by the Company or any of
its Restricted Subsidiaries of Shares of Capital Stock of any
of the Company's Restricted Subsidiaries (which shall be
deemed to include the sale, grant or conveyance of any
interest in the income, profits or proceeds therefrom),
in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (x) that have
a fair market value in excess of $2 million or (y) for Net
Cash Proceeds in excess of $2 million.
For the purposes of this definition, the term "Asset
Sale" does not include
(1) any transfer of properties or assets (i)
that is governed by Sections 4.07, 4.16 (to the extent of
clause (a) thereof) or 5.01 hereof, (ii) between or among the
Company and its Restricted Subsidiaries pursuant to
transactions that do not violate any other provision of this
Indenture or (iii) representing obsolete or permanently
retired equipment and facilities or
(2) the sale or exchange of equipment in
connection with the purchase or other acquisition of other
equipment, in each case used or useful in a Permitted
Business.
Notwithstanding anything to the contrary set forth
above, a disposition of Receivables and Related Assets other
than pursuant to a Receivables Program contemplated under the
provisions described in Section 4.09(c)(xiii) shall be deemed
to be an Asset Sale.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Banks" means the banks and other financial institutions that
from time to time are lenders under the Credit Agreement.
- 2 -
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a
corresponding meaning.
"Board" means the Company's Board of Directors or any
committee of the Board of Directors authorized with respect to any particular
matter to exercise powers of the Company's Board of Directors.
"Board Resolution" means, with respect to a Board, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by such Board and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, membership interests, participations, rights
(in each case other than debt securities convertible into Capital Stock) in or
other equivalents (however designated) of such Person's equity interest (however
designated), whether now outstanding or issued after the Closing Date.
"Capitalized Lease Obligation" means, with respect to any
Person, any lease of any property (whether real, personal or mixed) by that
Person as lessee which, in accordance with GAAP, is required to be accounted for
as a capital lease on the balance sheet of that Person.
"Cash Equivalents" means, at any date, (a) securities issued
or directly and fully guaranteed or insured by the United States 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
twelve months from the date of acquisition, (b) U.S. dollar denominated time
deposits and certificates of deposit of (i) any lender under the Credit
Agreement, (ii) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being an
"Approved Lender"), in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the Parent Company thereof) or any variable
rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within twelve months of the date of acquisition,
(d) repurchase agreements entered into by any Person with a bank or trust
Company (including any of the lenders under the Credit Agreement) or recognized
securities
- 3 -
dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States in which such
Person shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value of
at least 100% of the amount of the repurchase obligations and (e) Investments,
classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the
following:
(ii) the consummation of any transaction
(including, without limitation, any merger or consolidation)
(a) prior to a Public Equity Offering by the Company, the
result of which is that (i) the Principals and their Related
Parties become the "beneficial owner" (as such term is defined
in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of less
than 40% of the Voting Stock of the Company (measured by
voting power rather than the number of shares), and (ii) the
Principals and their Related Parties no longer have the power
to nominate a majority of the members of the Board, or (b)
after a Public Equity Offering of the Company, any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act), other than the Principals and their Related
Parties, become the beneficial owner (as defined above),
directly or indirectly, of 35% or more of the Voting Stock of
the Company (measured by voting power rather than the number
of shares), and such person is or becomes, directly or
indirectly, the beneficial owner of a greater percentage of
the voting power of the Voting Stock of the Company,
calculated on a fully diluted basis, than the percentage
beneficially owned by the Principals and their Related
Parties;
(iii) the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the
Company and its Subsidiaries, taken as a whole, to any
"person" (as the term is defined in Section 13(d)(3) of the
Exchange Act) other than the Principals or Related Parties of
the Principals;
(iv) the first day on which a majority of the
members of the Board are not Continuing Directors; or
(v) the Company is liquidated or dissolved or
adopts a plan of liquidation or dissolution, other than in a
transaction that complies with the provisions described under
Section 5.01 hereof.
"Clearstream" means Clearstream Banking, societe anonyme,
Luxembourg.
"Closing Date" means October 22, 2003, the date on which
Initial Notes are first issued under this Indenture.
- 4 -
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person's Common Stock, whether now
outstanding or issued after the date of this Indenture, and includes, without
limitation, all series and classes of such Common Stock.
"Company" means National Nephrology Associates, Inc., a
Delaware corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Comparable Treasury Issue" means the U.S. treasury security
selected by an Independent Investment Banker that would be used, 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 the Notes to November 1, 2007.
"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 average of the
Reference Treasury Dealer Quotations for such redemption date.
"Consolidated EBITDA" means, for any period, the sum of,
without duplication, Consolidated Net Income for such period, plus (or, in the
case of clause (d) below, plus or minus) the following items to the extent
included in computing Consolidated Net Income for such period (a) Fixed Charges
for such period, plus (b) the provision for federal, state, local and foreign
income taxes of the Company and its Restricted Subsidiaries for such period,
plus (c) the aggregate depreciation and amortization expense of the Company and
its Restricted Subsidiaries for such period, plus (d) any other non-cash charges
for such period, and minus non-cash items increasing Consolidated Net Income for
such period, other than non-cash charges or items increasing Consolidated Net
Income resulting from changes in prepaid assets or accrued liabilities in the
ordinary course of business, plus (e) Minority Interest; provided that fixed
charges, income tax expense, depreciation and amortization expense and non-cash
charges of a Restricted Subsidiary will be included in Consolidated EBITDA only
to the extent (and in the same proportion) that the net income of such
Subsidiary was included in calculating Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the net
income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding (a)
any net after-tax extraordinary or nonrecurring gains or losses (less all fees
- 5 -
and expenses relating thereto), (b) any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to Asset Sales or discontinued
operations, (c) the portion of net income (or loss) of any Person (other than
the Company or a Restricted Subsidiary), including Unrestricted Subsidiaries, in
which the Company or any Restricted Subsidiary has an ownership interest, except
to the extent of the amount of dividends or other distributions actually paid to
the Company or any Restricted Subsidiary in cash during such period, (d) the net
income (or loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior to
the date of combination, (e) the net income (but not the net loss) of any
Restricted Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary is at the date of
determination restricted, directly or indirectly, except to the extent that such
net income is actually paid to the Company or a Restricted Subsidiary thereof by
loans, advances, intercompany transfers, principal repayments or otherwise and
(f) the cumulative effect of a change in accounting principles.
"Consolidated Tangible Assets" means, as of the date of
determination, the total assets, less goodwill and other intangibles, shown on
the balance sheet of the Company and its Restricted Subsidiaries as of the most
recent date for which such a balance sheet is available, determined on a
consolidated basis in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board who:
(a) was a member of the Board on the Closing Date;
(b) was nominated for election or elected to such Board
with the approval of the majority of the Continuing Directors who were
members of such Board at the time of such nomination or election; or
(c) was nominated by one or more of the Principals and
the Related Parties.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means the credit agreement, dated October
22, 2003, among the Company, the Guarantors, the lenders named therein, Bank of
America, N.A., as administrative agent, XX Xxxxxx Xxxxx Bank and Royal Bank of
Canada, as syndication agents, and Xxxxxx Trust and Savings Bank, as
documentation agent as such credit agreement (and related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith) may be amended, restated, supplemented, refinanced, replaced
(including after termination of a prior agreement), extended or otherwise
modified from time to time.
"Credit Facility" means one or more debt facilities
(including, without limitation, the Credit Agreement), commercial paper
facilities or other debt instruments, indentures, notes or other agreements,
providing for revolving credit loans, term loans, receivables financing, letters
of credit or other debt obligations, in each case, as amended, restated,
supplemented, refinanced, replaced (including after termination of a prior
agreement), extended or otherwise modified from time to time, including without
limitation any amendment, restatement,
- 6 -
supplement, refinancing, replacement, extension or modification (in each case
whether before or after termination of a prior agreement) increasing the amount
of Indebtedness incurred or available to be borrowed thereunder, extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby or
deleting, adding or substituting one or more parties thereto (whether or not
such added or substituted parties are banks or other institutions).
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or the
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 2.07 hereof,
substantially in the form of Exhibit A1 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 2.04
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 provision of this Indenture.
"Designated Noncash Consideration" means the fair market value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an officer's certificate, setting
forth the basis of such valuation, executed by the principal executive officer
or the principal financial officer of the Company, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Designated Senior Indebtedness" means (i) the obligations
under the Credit Agreement and (ii) any other Senior Indebtedness permitted
under this Indenture the principal amount of which is $25 million or more and
that has been specifically designated by the Company, in the instrument creating
or evidencing such Senior Indebtedness or in an officers' certificate delivered
to the Trustee, as "Designated Senior Indebtedness."
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board is required
to deliver a resolution of the Board, to make a finding or otherwise take action
under this Indenture, a member of the Board who does not have any material
direct or indirect financial interest in or with respect to such transaction or
series of transactions.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (i) is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes, (ii) is redeemable at the option of
the holder thereof, at any time prior to such final Stated Maturity or (iii) at
the option of the holder thereof is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity; provided that any
Capital Stock that would constitute Disqualified Stock solely
- 7 -
as a result of the provisions therein giving holders thereof the right to cause
the issuer thereof to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes will not constitute Disqualified Stock if the
"asset sale" or "change of control" provisions applicable to such Capital Stock
are no more favorable to the holders of such Capital Stock than the provisions
contained in Sections 4.10 and 4.15 hereof, and such Capital Stock specifically
provides that the issuer will not repurchase or redeem any such stock pursuant
to such provisions prior to the Company's repurchase of such Notes as are
required to be repurchased pursuant to the provisions contained in Sections 4.10
and 4.15 hereof.
"Equity Interests" means Capital Stock and all warrants,
options and other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private offering of
Capital Stock (other than Disqualified Stock) of the Company.
"Equity Sponsors" means X.X. Childs Associates, L.P., X.X.
Childs Equity Partners II, L.P., J.W.C Equity Funding II, Inc. and the Indosuez
Group.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder.
"Exchange Notes" means the Notes issued in an Exchange Offer
in accordance with Section 2.07(f) hereof.
"Exchange Offer" means the exchange offer that may be affected
pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement that may be filed pursuant to the Registration
Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Credit
Agreement) outstanding on the Closing Date until such amounts are repaid.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of Consolidated EBITDA for such period to Fixed Charges for such period.
"Fixed Charges" means, for any period, without duplication,
the sum of (a) the amount that, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption) on a consolidated
statement of operations of the Company and its Restricted Subsidiaries for such
period, including, without limitation, (i) amortization of debt discount, (ii)
the net cash payments under interest rate contracts (including, amortization of
discounts), (iii) the interest portion of any deferred payment obligation, (iv)
amortization of debt issuance costs, and (v) the interest component of
Capitalized Lease Obligations, plus (b) all dividends and distributions paid
(whether or not in cash) on Preferred Stock and Disqualified Stock by the
Company or any Restricted Subsidiary (to any Person other than the Company or
- 8 -
any of its Restricted Subsidiaries), other than dividends on Equity Interests
payable solely in Qualified Equity Interests, computed on a tax effected basis,
plus (c) all interest on any Indebtedness of any Person guaranteed by the
Company or any of its Restricted Subsidiaries or secured by a lien on the assets
of the Company or any of its Restricted Subsidiaries; provided, however, that
Fixed Charges will not include (i) any gain or loss from extinguishment of debt,
including the write-off of debt issuance costs, and (ii) the fixed charges of a
Restricted Subsidiary to the extent (and in the same proportion) that the net
income of such Subsidiary was excluded in calculating Consolidated Net Income
pursuant to clause (e) of the definition thereof for such period.
"Foreign Subsidiary" means a Restricted Subsidiary (x) that is
incorporated in a jurisdiction other than the United States or a state thereof
or the District of Columbia and that has no material operations or assets in the
United States or (y) was organized under the laws of the United States of
America or any State thereof or the District of Columbia that has no material
assets other than Capital Stock of one or more foreign entities of the type
described in clause (x) above and is not a guarantor of Indebtedness under the
Credit Agreement.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect (i) with respect to periodic reporting requirements,
from time to time, and (ii) otherwise on the Closing Date.
"Global Note Legend" means the legend set forth in Section
2.07(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes, substantially in
the form of Exhibit A1 or A2 hereto, as appropriate, issued in accordance with
Section 2.01, 2.07(b)(iv), 2.07(d)(ii) or 2.07(f) of this Indenture.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantors" means, collectively, all Wholly Owned Restricted
Subsidiaries that are incorporated in the United States or a state thereof or
the District of Columbia (other than any Unrestricted Subsidiary which is not a
Guarantor) and any other Restricted Subsidiary that becomes a Guarantor pursuant
to the terms of this Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person entered into for nonspeculative purposes under (i)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and other similar financial agreements or arrangements
designed to protect such Person against, or manage the exposure of such Person
to, fluctuations in interest rates, and (ii) forward exchange agreements,
currency swap, currency option and other similar financial agreements or
arrangements designed to protect such Person
- 9 -
against, or manage the exposure of such Person to, fluctuations in foreign
currency exchange rates.
"Holder" means the Person in whose name a Note is, at the time
of determination, registered on the Registrar's books.
"IAI Global Note" means the global Note substantially in the
form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of 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.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) the attributable value of every Capitalized Lease Obligation of such Person,
(f) all Disqualified Stock of such Person valued at its maximum fixed repurchase
price, plus accrued and unpaid dividends thereon, (g) all Preferred Stock of any
Restricted Subsidiary of such Person held by Persons other than the Company or
any of its Restricted Subsidiaries, (h) all obligations of such Person under or
in respect of Hedging Obligations, and (i) every obligation of the type referred
to in clauses (a) through (h) of another Person and all dividends of another
Person the payment of which, in either case, such Person has (x) guaranteed or
(y) secured, provided that in the case of clause (y) the amount of such
Indebtedness shall be limited to the lesser of (A) the fair market value of the
asset securing such Indebtedness or (B) the amount of such Indebtedness. For
purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price will be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness is required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock, such fair market
value will be determined in good faith by the board of directors of the issuer
of such Disqualified Stock. Notwithstanding the foregoing, trade accounts
payable and accrued liabilities arising in the ordinary course of business and
any liability for federal, state or local taxes or other taxes owed by such
Person will not be considered Indebtedness for purposes of this definition. In
no event will obligations or liabilities in respect of any Capital Stock, other
than Disqualified Stock of the Company or any of its Restricted Subsidiaries and
Preferred Stock of any Restricted Subsidiary of the Company held by a Person
other than the Company or another Restricted Subsidiary, constitute Indebtedness
hereunder.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Investment Banker" means one of the Reference
Treasury Dealers that the Company appoints.
- 10 -
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Indosuez Group" means Indosuez NNA Partners, Indosuez NNA
Partners II, SCP II Associates, SEI Associates, Suez Capital Partners II, L.P.
and Suez Equity Investors, L.P.
"Initial Notes" has the meaning stated in the first paragraph
of this Indenture and means Notes other than Exchange Notes and Additional Notes
issued under this Indenture.
"Initial Purchasers" means (i) each of Banc of America
Securities LLC, X.X. Xxxxxx Securities Inc., RBC Dominion Securities Corporation
and Xxxxxx Xxxxxxx Corp. as initial purchasers under the Purchase Agreement
dated October 16, 2003, among the Company, the Guarantors, Banc of America
Securities LLC, X.X. Xxxxxx Securities Inc., RBC Dominion Securities Corporation
and Xxxxxx Xxxxxxx Corp, and (ii) with respect to any Additional Notes issued
subsequent to October 22, 2003, any Initial Purchasers acting in connection with
the issuance and sale of such Additional Notes.
"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, who are not also QIBs.
"Investment" in any Person means, (i) directly or indirectly,
any advance, loan or other extension of credit (including, without limitation,
by way of guarantee or similar arrangement) or capital contribution to such
Person, the purchase or other acquisition of any stock, bonds, notes, debentures
or other securities issued by such Person, the acquisition (by purchase or
otherwise) of all or substantially all of the business or assets of such Person,
or the making of any investment in such Person and (ii) the fair market value of
the Capital Stock (or any other Investment), held by the Company or any of its
Restricted Subsidiaries, of (or in) any Person that has ceased to be a
Restricted Subsidiary, including the designation of any Restricted Subsidiary as
an Unrestricted Subsidiary. Investments exclude endorsements for deposit or
collection in the ordinary course of business and extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with an Exchange Offer.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or other encumbrance upon, or with respect to, any property of
any kind, real or personal, movable or immovable, now owned or hereafter
acquired. A Person will be deemed to own subject to a Lien any property that
such Person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Liquidated Damages" means all liquidated damages then owing
pursuant to an applicable Registration Rights Agreement.
- 11 -
"Minority Interest" means, with respect to any Person,
interests in income of any of such Person's Subsidiaries held by one or more
Persons other than such Person or another Subsidiary of such Person, as
reflected on such Person's consolidated financial statements.
"Moody's" means Xxxxx'x Investors Service and any successor
thereof.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (a) brokerage commissions and other fees,
transaction costs and expenses (including fees and expenses of legal counsel and
investment banks) related to such Asset Sale, (b) provisions for all taxes
payable as a result of such Asset Sale, (c) payments made to retire Indebtedness
where such Indebtedness is secured by the assets that are the subject of such
Asset Sale, (d) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
that are subject to the Asset Sale and (e) cash escrows (until released from
escrow to the Company or any of its Restricted Subsidiaries) and appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the seller after such Asset
Sale, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Non-Payment Event of Default" means any event (other than a
Payment Event of Default) the occurrence of which entitles one or more Persons
to accelerate the maturity of any Designated Senior Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness of a Person (i)
as to which neither the Company nor any of its Restricted Subsidiaries (other
than such Person), (a) provides any guarantee or credit support of any kind
(including any undertaking, guarantee, indemnity, agreement or instrument that
would constitute Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise), and (ii) the obligees of which will have recourse for
repayment of the principal of and interest on such Indebtedness and any fees,
indemnities, expense reimbursements or other amount of whatsoever nature accrued
or payable in connection with such Indebtedness and not against any of the
assets of the Company or its Restricted Subsidiaries (other than such Person).
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning stated in the first paragraph of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes" shall
include any Exchange Notes to be issued and exchanged for any Notes pursuant to
an applicable Registration Rights Agreement and this Indenture and, for purposes
of this Indenture (i) all Exchange Notes that are issued and exchanged for the
Initial Notes and (ii) all Additional Notes issued hereunder and Exchange Notes
that are issued and
- 12 -
exchanged for such Additional Notes, shall be treated as a single class for all
purposes under this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by at least two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the requirements of Section
13.05 hereof.
"Pari Passu Indebtedness" means (a) with respect to the Notes,
Indebtedness that ranks pari passu in right of payment to the Notes and (b) with
respect to any Guarantee, Indebtedness that ranks pari passu in right of payment
to such Guarantee.
"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 DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the business conducted by the
Company, its Restricted Subsidiaries and Permitted Joint Ventures as of the
Closing Date and any and all other businesses that in the good faith judgment of
the Board are reasonably related, ancillary or complementary thereto.
"Permitted Indebtedness" has the meaning set forth in Section
4.09(c) hereof.
"Permitted Investments" means any of the following:
(a) Investments in (i) United States dollars
(including such dollars as are held as overnight bank deposits
and demand deposits with banks), (ii) securities with a
maturity of one year or less issued or directly and fully
guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof);
(iii) certificates of deposit, time deposits or acceptances
with a maturity of one year or less of any financial
institution that is a member of the Federal Reserve System
having combined capital and surplus of not less than
$500,000,000; (iv) any shares of money market mutual or
similar funds having assets in excess of $500,000,000; (v)
repurchase obligations with a term not
- 13 -
exceeding seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with
any financial institution meeting the qualifications specified
in clause (iii) above; and (vi) commercial paper with a
maturity of one year or less issued by a corporation that is
not an Affiliate of the Company and is organized under the
laws of any state of the United States or the District of
Columbia and having a rating (A) from Xxxxx'x Investors
Services, Inc. of at least P-1 or (B) from Standard & Poor's
Ratings Group of at least A-1;
(b) Investments by the Company or any Restricted
Subsidiary in another Person, if as a result of such
Investment (i) such other Person becomes a Restricted
Subsidiary or (ii) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all
of its assets to, the Company or a Restricted Subsidiary;
(c) Investments by the Company or a Restricted
Subsidiary in the Company or a Restricted Subsidiary;
(d) Investments in existence on the Closing
Date;
(e) Investments in any Person to the extent such
Investment represents the non-cash portion of the
consideration received for an Asset Sale permitted under
Section 4.10 hereof;
(f) loans or advances to officers, directors and
employees of the Company or any of its Restricted Subsidiaries
(i) in the ordinary course of business for bona fide business
purposes of the Company and its Restricted Subsidiaries made
in compliance with applicable law in an amount not to exceed
$5 million in the aggregate at any one time outstanding or
(ii) in connection with the purchase by such Persons of Equity
Interests of the Company;
(g) any Investment by the Company or any
Restricted Subsidiary of the Company in Permitted Joint
Ventures made after the Closing Date, having an aggregate fair
market value, when taken together with all other Investments
made pursuant to this clause (g) that are at the time
outstanding, not exceeding the greater of (i) $20 million and
(ii) 15% of the Consolidated Tangible Assets of the Company as
of the last day of the most recent full fiscal quarter ending
immediately prior to the date of such Investment (with the
fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in
value);
(h) any Investment by the Company or any
Restricted Subsidiary in a trust, limited liability company,
special purpose entity or other similar entity in connection
with a Receivables Program; provided that (A) such Investment
is made by a Receivables Subsidiary and (B) the only assets
transferred to such trust, limited liability company, special
purpose entity or other similar entity consists of Receivables
and Related Assets of such Receivables Subsidiary;
- 14 -
(i) stock, obligations or securities received in
settlement of debts created in the ordinary course of business
and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments;
(j) Investments consisting of Hedging
Obligations otherwise permitted under Section 4.09.
(k) Investments in prepaid expenses, negotiable
instruments held for collection and lease, endorsements for
deposit or collection in the ordinary course of business,
utility or workers compensation, performance and similar
deposits entered into as a result of the operations of the
business in the ordinary course of business; and
(l) other Investments that do not exceed $10
million in the aggregate at any one time outstanding.
"Permitted Joint Venture" means any joint venture, partnership
or other Person designated by the Board, (i) at least 20% of whose Capital Stock
with voting power under ordinary circumstances to elect directors (or Persons
having similar or corresponding powers and responsibilities) is at the time
owned (beneficially or directly) by the Company and/or by one or more Restricted
Subsidiaries of the Company and if the Company and/or its Restricted
Subsidiaries owns more than 50% of the Capital Stock of the Permitted Joint
Venture, such Permitted Joint Venture is either a Restricted Subsidiary of the
Company or has been designated as an Unrestricted Subsidiary of the Company in
accordance with the provisions of Section 4.17 hereof, and (ii) which is engaged
in a Permitted Business. Any such designation (other than with respect to the
Persons identified in the preceding sentence) shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the resolution giving effect to
such designation and an officer's certificate certifying that such designation
complied with the foregoing provisions.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded plus accrued
interest plus the lesser of the amount of any premium required to be paid in
connection with such refinancings pursuant to the terms of such indebtedness or
the amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing (in each case plus the amount of reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes, such Permitted Refinancing Indebtedness has a
final maturity date not earlier than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms, taken as a whole, at
least as favorable to the Holders as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Permitted
- 15 -
Refinancing Indebtedness shall not include (A) Indebtedness of a Restricted
Subsidiary that refinances Indebtedness of the Company or (B) Indebtedness of a
Restricted Subsidiary (that is not a Guarantor) that refinances Indebtedness of
a Guarantor.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, partnership interests, participation, rights in or other
equivalents (however designated) of such Person's preferred or preference stock,
whether now outstanding or issued after the Closing Date, and including, without
limitation, all classes and series of preferred or preference stock of such
Person.
"Principals" means the Equity Sponsors and their respective
Affiliates.
"Private Placement Legend" means the legend set forth in
Section 2.07(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an offer and sale of Capital
Stock (other than Disqualified Stock) of the Company pursuant to a registration
statement that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 or otherwise
relating to equity securities issuable under any employee benefit plan of the
Company).
"Purchase Money Obligations" of any Person means any
obligations of such Person to any seller or any other Person incurred or assumed
to finance the construction and/or acquisition of real or personal property to
be used in the business of such Person or any of its Subsidiaries in an amount
that is not more than 100% of the cost of such property, and incurred within 90
days after the date of such construction or acquisition (excluding accounts
payable to trade creditors incurred in the ordinary course of business);
provided that any Lien on such Indebtedness shall not extend to any property
other than the property so acquired or constructed.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock (but excluding any
debt security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital
Stock of such Person, other than Disqualified Stock.
"Receivables and Related Assets" means accounts receivable,
instruments, chattel paper, health care insurance receivables, obligations,
general intangibles and other similar assets, including interest in merchandise
or goods, the sale or lease of which give rise to the foregoing, related
contractual rights, guarantees, insurance proceeds, collections, other related
assets and proceeds of all the foregoing.
- 16 -
"Receivables Program" means with respect to any Person, any
securitization program pursuant to which such Person pledges, sells or otherwise
transfers or encumbers its Receivables and Related Assets, including a trust,
limited liability company, special purpose entity or other similar entity.
"Receivables Subsidiary" means a Wholly Owned Subsidiary (i)
created for the purpose of financing Receivables and Related Assets created in
the ordinary course of business of the Company and its Subsidiaries and (ii) the
sole assets of which consist of Receivables and Related Assets of the Company
and its Subsidiaries and Permitted Investments.
"Reference Treasury Dealer" means each of Banc of America
Securities LLC (and its successors) and any other nationally recognized firm
that is a primary U.S. government securities dealer specified from time to time
by the Company.
"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 as of 5:00
p.m., New York time, on the third business day preceding the redemption date.
"Registration Rights Agreement" means (i) the Registration
Rights Agreement among the Company, the Guarantors and the Initial Purchasers
named therein, dated as of October 22, 2003, relating to the Initial Notes, and
(ii) with respect to any Additional Notes issued subsequent to October 22, 2003,
any registration rights agreement entered into for the benefit of the holders of
such Additional Notes, if any.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or a Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global
Note in the form of Exhibit A1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount at maturity of the Regulation S Temporary Global
Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global
Note in the form of Exhibit A2 hereto bearing the Global Note Legend, the
Private Placement Legend and the Temporary Regulation S Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount at
maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means:
(m) any controlling stockholder, partner, member, 80% (or
more) owned Subsidiary, or immediate family member (in the case of an
individual) of any Principal; or
- 17 -
(n) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which
consist of any one or more Principals and/or such other Persons
referred to in the immediately preceding clause.
"Representative" means the trustee, agent or representative
for any Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers 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 a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Restricted Subsidiary" means any Subsidiary 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 the Securities Act.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which the Company or a Restricted
Subsidiary sells or transfers any property or asset in connection with the
leasing, or the resale against installment payments, of such property or asset
to the seller or transferor.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) the obligations under the
Credit Agreement and any Hedging Obligations owing by the Company or any
Guarantor to any lender which is a party to the Credit Agreement (or to any
Affiliate of any such lender) and (ii) any other Indebtedness permitted to be
incurred by the Company or any Restricted Subsidiary under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides
- 18 -
that it is subordinated in right of payment to any Indebtedness for money
borrowed. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness will not include (i) Indebtedness evidenced by the Notes or the
Guarantees, (ii) Indebtedness of the Company or any Guarantor that is expressly
subordinated in right of payment to any Senior Indebtedness of the Company or
such Guarantor or the Notes or such Guarantor's Guarantee, (iii) Indebtedness of
the Company or any Guarantor that by operation of law is subordinate to any
general unsecured obligations of the Company or any Guarantor, (iv) Indebtedness
of the Company or any Guarantor to the extent incurred in violation of this
Indenture (but as to any such Indebtedness, no such violation shall be deemed to
exist for purposes of this clause (iv) if the Holder(s) of such Indebtedness or
their representative shall have in good faith received a certificate from an
officer of the Company or such Restricted Subsidiary to the effect that the
incurrence of such Indebtedness does not and would not violate such provisions
of this Indenture), (v) any liability for foreign, federal, state or local taxes
or other taxes, owed or owing by the Company or any Guarantor, (vi) trade
account payables owed or owing by the Company or any Guarantor to the extent
constituting Indebtedness, (vii) amounts owed by the Company or any Guarantor
for compensation to employees or for services rendered to the Company or such
Guarantor, (viii) Indebtedness of the Company or any Guarantor to any Restricted
Subsidiary or any other Affiliate of the Company, (ix) Disqualified Stock of the
Company or any Guarantor, and (x) Indebtedness which when incurred and without
respect to any election under Section 1111(b) of Title 11 of the United States
Code is without recourse to the Company or any Restricted Subsidiary.
"Shelf Registration Statement" means the Shelf Registration
Statement that may be filed pursuant to the Registration Rights Agreement.
"Significant Subsidiary" means, at any time, any Restricted
Subsidiary that qualifies at such time as a "significant subsidiary" within the
meaning of Rule 1-02 of Regulation S-X promulgated by the Commission (as in
effect on the Closing Date).
"S&P" means Standard & Poor's Ratings Group and any successor
thereof.
"Stated Maturity" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness or any installment of interest
thereon is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Guarantor that is subordinated in right of payment to the Notes or the
Guarantee issued by such Guarantor, as the case may be.
"Subsidiary" means any Person a majority of the total voting
power of the Voting Stock of which is at the time owned, directly or indirectly,
by the Company and/or one or more other Subsidiaries of the Company.
- 19 -
"Temporary Regulation S Legend" means the legend set forth in
Section 2.07(h) hereof, which is required to be placed on the Regulation S
Temporary Global Note.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended (15 U.S.C. Sections 77aaa - 77bbbb), as in effect on the
date on which this Indenture is qualified under the TIA.
"Trustee" means Xxxxx Fargo Bank Minnesota, N.A., until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note
substantially in the form of Exhibit A1 attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do
not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board as an Unrestricted Subsidiary in accordance with Section
4.17 hereof and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means (i) securities that are
(a) direct obligations of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (i) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depositary receipt.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes has, or might have, voting power by reason
of the happening of any contingency).
- 20 -
"Weighted Average Life to Maturity" means, as of the date of
determination with respect to any Indebtedness or Disqualified Stock, the
quotient obtained by dividing (a) the sum of the products of (i) the number of
years from the date of determination to the date or dates of each successive
scheduled principal or liquidation value payment of such Indebtedness or
Disqualified Stock, respectively, multiplied by (ii) the amount of each such
principal or liquidation value payment by (b) the sum of all such principal or
liquidation value payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding Voting Stock (other than directors'
qualifying shares or shares of foreign Restricted Subsidiaries required to be
owned by foreign nationals pursuant to applicable law) of which is owned,
directly or indirectly, by the Company.
"Wholly Owned Subsidiary" means any Subsidiary, all of the
outstanding Voting Stock (other than directors' qualifying shares or shares of
foreign Subsidiaries required to be owned by foreign nationals pursuant to
applicable law) of which is owned, directly or indirectly, by the Company.
- 21 -
Section 1.02. Other Definitions.
DEFINED IN
TERM SECTION
"Authentication Order"................................ 2.02
"Change of Control Offer"............................. 4.15
"Change of Control Payment"........................... 4.15
"Change of Control Payment Date"...................... 4.15
"Covenant Defeasance"................................. 8.03
"DTC"................................................. 2.01
"Event of Default".................................... 6.01
"Excess Proceeds"..................................... 4.10
"Excess Proceeds Offer"............................... 4.10
"Incur"............................................... 4.09
"Legal Defeasance" ................................... 8.02
"Offer Amount" ....................................... 3.09
"Offer Period" ....................................... 3.09
"Paying Agent" ....................................... 2.04
"Payment Default" .................................... 6.01
"Purchase Date" ...................................... 3.09
"Registrar" .......................................... 2.04
"Related Judgment" ................................... 13.09
"Related Proceedings" ................................ 13.09
"Repurchase Offer" ................................... 3.09
"Resale Restriction Termination Date" ................ 2.07
"Restricted Payments" ................................ 4.07
"Specified Courts" ................................... 13.09
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
- 22 -
All terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(iii) words in the singular include the plural,
and in the plural include the singular;
(iv) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the
Commission from time to time; and
(v) all references herein to "interest" include
the Liquidated Damages.
ARTICLE TWO
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 A1 or A2 hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued in registered, global form without interest coupons
and only shall be in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors 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) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A1 or A2 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 A1 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
- 23 -
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 in accordance with instructions given by
the Holder thereof as required by Section 2.07 hereof.
(c) Temporary Global Notes. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, as custodian for The Depository
Trust Company ("DTC") in New York, New York, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The Restricted
Period shall be terminated upon the receipt by the Trustee of (i) a written
certificate from Euroclear and Clearstream certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount at maturity of the Regulation S Temporary Global Note (except
to the extent of any Beneficial Owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration
under the Securities Act and who shall take delivery of a beneficial ownership
interest in a 144A Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.07(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Cedel Bank" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Clearstream.
(e) Additional Notes. Notwithstanding anything else
herein, with respect to any Additional Notes issued subsequent to the date of
this Indenture, (1) all references in Article Two herein and elsewhere in this
Indenture to a Registration Rights Agreement shall be to the registration rights
agreement entered into with respect to such Additional Notes, (2) any references
in this Indenture to the Exchange Offer, Exchange Offer Registration Statement,
Shelf Registration Statement, Initial Purchasers, and any other term related
thereto shall be to such terms as they are defined in such registration rights
agreement entered into with respect to such Additional Notes, (3) all time
periods described in the Notes with respect to the registration of such
Additional Notes shall be as provided in such Registration Rights Agreement
entered into with respect to such Additional Notes, (4) any Liquidated Damages
or penalty interest, if set
- 24 -
forth in such Registration Rights Agreement, may be paid to the holders of the
Additional Notes immediately prior to the making or the consummation of the
Exchange Offer regardless of any other provisions regarding record dates herein
and (5) all provisions of this Indenture shall be construed and interpreted to
permit the issuance of such Additional Notes and to allow such Additional Notes
to become fungible and interchangeable with the Initial Notes originally issued
under this Indenture.
Section 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the
Company by manual or facsimile signature.
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.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company (an "Authentication Order") delivered to the
Trustee from time to time, authenticate Notes for original issue without limit
as to the aggregate principal amount thereof, subject to compliance with Section
4.09, of which $160 million will be issued on the date of this Indenture. Upon
receipt of an Authentication Order, the Trustee shall authenticate for original
issue (i) Exchange Notes in exchange for Initial Notes in an aggregate principal
amount not to exceed $160,000,000 or (ii) Exchange Notes in exchange for
Additional Notes; provided that such Exchange Notes shall be issuable only upon
the valid surrender for cancellation of Initial Notes issued on the date hereof
or Additional Notes, as the case may be, of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to an applicable Registration Rights
Agreement.
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.
Section 2.03. Methods of Receiving Payments on the Notes.
If a Holder of Notes has given wire transfer instructions to
the Company at least 10 Business Days before payment is due, the Company shall
pay all principal, interest and premium, if any, on that Holder's Notes in
accordance with those instructions. All other payments on Notes shall be made at
the office or agency of the Paying Agent and Registrar within the City and State
of New York unless the Company elects to make interest payments by check mailed
to the Holders at their addresses set forth in the register of Holders. Payments
of
- 25 -
interest to the Trustee as Paying Agent, if the Trustee then acts as Paying
Agent, with respect to any Interest Payment Date (as defined in the Notes) shall
be made by the Company in immediately available funds for receipt by the Trustee
one Business Day prior to the such Interest Payment Date (or in no event later
than 12:30 p.m. Eastern Time on such Interest Payment Date).
Section 2.04. 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 prior 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 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 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 2.05. 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 the Holders or the Trustee all money held by the Paying Agent for the
payment of principal or premium, if any, or interest 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 one of its
Subsidiaries) shall have no further liability for the money. If the Company or
any of its Subsidiaries 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 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 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
- 26 -
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.07. 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
shall be exchanged by the Company for Definitive Notes if (i) 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 90 days after the date of such
notice from the Depositary; (ii) the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee;
provided that in no event shall the Regulation S Temporary Global Note be
exchanged by the Company for Definitive Notes prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or (iii)
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes. Upon the occurrence of any of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued 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 2.08 and 2.11 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.07 or Section 2.08 or
2.11 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.07(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.07(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 subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, 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 Restricted Period, transfers of
beneficial interests in the Regulation S Temporary 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
- 27 -
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 2.07(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 2.07(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 (1) above; provided that
in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.07(f) hereof, the
requirements of this Section 2.07(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 at maturity of the relevant Global Notes
pursuant to Section 2.07(i) hereof.
(iii) Transfer of Beneficial Interests 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 interest in
another Restricted Global Note if the transfer complies with
the requirements of Section 2.07(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall 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; and
(B) if the transferee shall take
delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or
- 28 -
Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in
item (2) thereof.
(iv) Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests
in the 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
2.07(b)(ii) above and:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in accordance
with an applicable 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 a Shelf Registration Statement in accordance with
an applicable Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with an
applicable 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 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 subparagraph
(D), if the Registrar 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
- 29 -
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 subparagraph (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
subparagraph (B) or (D) above.
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;
(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
- 30 -
subparagraphs (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) thereof, if 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 2.07(i) 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 2.07(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 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 2.07(c)(i) shall bear the
Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S
Temporary Global Note to Definitive Notes. Notwithstanding
Sections 2.07(c)(i)(A) and (C) hereof, a beneficial interest
in the Regulation S Temporary Global Note may not be exchanged
for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x)
the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(iii) 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 an Exchange Offer in accordance
with an applicable Registration Rights Agreement and
the Holder of such beneficial interest, in the case
of an
- 31 -
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 a Shelf Registration Statement in accordance with
an applicable Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with an
applicable 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 Definitive Note that does not
bear the Private Placement Legend, 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 a Definitive Note
that does not bear the Private Placement
Legend, 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 subparagraph
(D), if the Registrar 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.
(iv) 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
2.07(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.07(i) 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
- 32 -
appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.07(c)(iv) 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 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 2.07(c)(iv) 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 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 subparagraphs (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) thereof, if applicable;
- 33 -
(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, and 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 an Exchange Offer in accordance
with an applicable 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 a Shelf Registration Statement in accordance with
an applicable Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with an
applicable 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
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
- 34 -
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 subparagraph
(D), if the Registrar 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.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.07(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 Definitive Notes 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.
If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs
(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 2.07(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 2.07(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
- 35 -
(A) if the transfer shall 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 shall 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 shall 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, if 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 an Exchange Offer in accordance
with an applicable 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 a Shelf Registration Statement in
accordance with an applicable Registration Rights
Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with an
applicable 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;
- 36 -
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to 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) 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 an Exchange
Offer in accordance with an applicable 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 such Exchange Offer and (ii) Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in such 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 deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount. Any
Notes that remain outstanding after the consummation of an Exchange Offer, and
Exchange Notes issued in connection with an Exchange Offer, shall be treated as
a single class of securities under this Indenture.
(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. Except as
permitted 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 NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, 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
- 37 -
TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS
ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE 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 NOTE AND THE GUARANTEES ENDORSED HEREON (OR
ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON) (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT
THAT THE NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON
ARE ELIGIBLE FOR RESALE PURSUANT TO 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
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1)
PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraph (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
of this Section 2.07 (and all Notes issued in exchange
therefor or substitution thereof) (and any note not required
by law to have such a legend), shall not bear the Private
Placement Legend.
- 38 -
In addition, the foregoing legend may be adjusted for
future issuances in accordance with applicable law.
(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 (1) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
(h) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially the
following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
(i) 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 canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.12 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 shall 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 shall 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.
- 39 -
(j) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and 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 2.11, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes
or Definitive Notes shall be the valid and legally binding
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.
(v) The Company shall not 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.
(vi) 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.
(vii) The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
(viii) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.07 to effect a registration of
transfer or exchange may be submitted by facsimile with the
original to follow by first class mail.
- 40 -
Section 2.08. Replacement Notes.
(a) 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.
(b) 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 2.09. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled 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 as not outstanding. Except as set forth in Section 2.10 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 the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.08
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a protected 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 of the foregoing) 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 2.10. 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.
- 41 -
Section 2.11. Temporary Notes.
(a) 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. Temporary Notes shall
be substantially in the form of Definitive 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.
(b) Holders of temporary Notes shall be entitled to all
of the benefits of this Indenture.
Section 2.12. 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 and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled 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 2.13. Defaulted Interest.
If the Company defaults in a payment of interest 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 the record date for the interest payment or 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 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 5 days prior to the related payment date for such defaulted interest. At
least 5 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 2.14. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided 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
- 42 -
numbers. The Company shall promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE THREE
REDEMPTION AND PREPAYMENT;
SATISFACTION AND DISCHARGE
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 30 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.
(a) If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased among the Holders of the Notes not more than
90 days prior to the redemption date, or otherwise 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 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.
(b) 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 at maturity thereof to be
redeemed. No Notes in amounts of $1,000 or less shall be redeemed in part. 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.
(a) Subject to the provisions of Section 3.09 hereof, 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:
(i) the redemption date;
(ii) the redemption price;
- 43 -
(iii) if any Note is being redeemed in part, the
portion of the principal amount at maturity 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 of the original Note shall be issued in
the name of the Holder thereof upon cancellation of the
original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price and become due on the date fixed for redemption;
(vi) that, unless the Company defaults in making
such redemption payment, interest, if any, on Notes called for
redemption ceases to accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(viii) 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.
(b) 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
prior to the redemption date (or such shorter period of time as the Trustee may
allow), an Officers' Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice, if mailed in the manner provided herein shall
be presumed to have been given, whether or not the Holder receives such notice.
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 except for in the case of a Change of Control Offer pursuant to
Section 4.15 herein.
Section 3.05. Deposit of Redemption Price.
(a) On or prior to 12:00 p.m. Eastern Time on the
redemption date, the Company shall deposit in immediately available funds with
the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest 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 on, all
Notes to be redeemed.
(b) If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of
- 44 -
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 Holder 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 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 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. No Notes in denominations of $1,000 or less shall be
redeemed in part.
Section 3.07. Optional Redemption.
(a) At any time on or prior to November 1, 2007, the
Company may, on any one or more occasions, redeem all or a portion of the Notes,
on not less than 30 nor more than 60 days' prior notice, in amounts of $1,000 or
an integral multiple thereof, at a price equal to the greater of:
(i) 100% of the aggregate principal amount of
the Notes to be redeemed, together with accrued and unpaid
interest, if any, to the date of redemption, and
(ii) as determined by an Independent Investment
Banker, the sum of the present values of 104.500% of the
principal of the Notes being redeemed plus scheduled payments
of interest (not including any portion of such payments of
interest accrued as of the date of redemption) from the date
of redemption to November 1, 2007 discounted for each such
amount to the redemption date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 50 basis points, together with
accrued and unpaid interest, if any, to the date of
redemption.
(b) After November 1, 2007, the Notes will be redeemable,
at the option of the Company, as a whole or from time to time in part, on not
less than 30 nor more than 60 days' prior notice to the Holders at the following
redemption prices (expressed as percentages of principal amount), together with
accrued interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on an
interest payment date), if redeemed during the 12-month period beginning on
November 1 of the years indicated below.
- 45 -
YEAR REDEMPTION PRICE
---- ----------------
2007 104.500%
2008 102.250%
2009 and thereafter 100.000%
(c) Notwithstanding the foregoing, at any time or from
time to time prior to November 1, 2006, the Company may redeem on one or more
occasions, up to 35% of the aggregate principal amount of the Notes issued
hereunder with the net proceeds of one or more Public Equity Offerings at a
redemption price equal to 109% of the principal amount thereof, plus accrued
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an interest
payment date); provided that, immediately after giving effect to such
redemption, at least 65% of the aggregate principal amount of the Notes issued
under this Indenture remains outstanding; provided further that such redemptions
shall occur within 90 days of the date of the closing of each such Public Equity
Offering.
(d) Any redemption 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.
Except as set forth in Sections 4.10 and 4.15 hereof, the
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Notes.
Section 3.09. Excess Proceeds Offers.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an Excess Proceeds Offer, as defined
therein, it shall follow the procedures specified below.
The Excess Proceeds Offer shall remain open for a period of
not less than 30 and not more than 60 Business Days following its commencement
and no longer, except to the extent that a longer period is required by
applicable law (the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
Sections 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Excess Proceeds Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
Upon the commencement of an Excess Proceeds Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Excess Proceeds Offer. The Excess Proceeds Offer shall be made to all Holders.
The notice, which shall govern the terms of the Excess Proceeds Offer, shall
state:
(a) that the Excess Proceeds Offer is being made pursuant
to Section 4.10 hereof and the length of time the Excess Proceeds Offer shall
remain open;
- 46 -
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note (or portion thereof) accepted for payment pursuant to the
Excess Proceeds Offer shall cease to accrete or accrue interest after the
Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to a Excess Proceeds Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased
pursuant to any Excess Proceeds Offer shall be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing its election to have such Note purchased;
(h) that, if the aggregate amount of Notes surrendered by
Holders exceeds the Offer Amount, the Trustee shall select the Notes to be
purchased pursuant to the terms of Section 3.02 hereof (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful,
accept for payment on a pro rata basis to the extent necessary, the Offer Amount
of Notes (or portions thereof) tendered pursuant to the Excess Proceeds Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes
(or portions thereof) were accepted for payment by the Company in accordance
with the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of Notes tendered by such Holder, as the case may
be, and accepted by the Company for purchase, and the Company shall promptly
issue a new Note. The Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount at maturity equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
respective Holder thereof. The Company shall publicly announce the results of
the Excess Proceeds Offer on the Purchase Date.
- 47 -
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
Section 3.10. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 12.02
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or one of its Subsidiaries, holds as of 12:00 p.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 then due. The
Company shall pay all Liquidated Damages, if any, on the date of its choosing
and in the amounts set forth in the Registration Rights Agreement. If a payment
date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day, and no interest shall accrue on such payment for the
intervening period.
(b) The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per annum in excess of the then applicable
interest rate on the Notes to the extent lawful; 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 period)
at the same rate to the extent lawful.
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 of
the Trustee or an agent of the Trustee, Registrar or co-registrar) where Notes
may be 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.
- 48 -
(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; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. 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 Corporate Trust
Office of the Trustee as one such office or agency of the Company in accordance
with Section 2.04 of this Indenture.
Section 4.03. Reports.
(a) Whether or not the Company is required to file
reports with the Commission, the Company will file with the Commission all such
annual reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13(a) or 15(d) under the Exchange
Act. The Company will also be required (i) to supply to the Trustee and each
Holder, or supply to the Trustee for forwarding to each such Holder, without
cost to such Holder, copies of such reports and other documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required and (ii) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective Holder promptly upon written
request.
(b) If any Guarantor's or secured party's financial
statements would be required to be included in the financial statements filed or
delivered pursuant to this Indenture if the Company were subject to Section
13(a) or 15(d) of the Exchange Act, the Company shall include such Guarantor's
or secured party's financial statements in any filing or delivery pursuant to
this Indenture.
(c) So long as any of the Notes remain outstanding, the
Company will, upon request, make available to any prospective purchaser of Notes
or beneficial owner of Notes in connection with any sale thereof the information
required by Rule 144A(d)(4) under the Securities Act, until such time as the
Company has either exchanged the Notes for securities identical in all material
respects which have been registered under the Securities Act or until such time
as the holders thereof have disposed of such Notes pursuant to an effective
registration statement under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company and each Guarantor (to the extent that
such Guarantor is so required under the TIA) 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
- 49 -
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 is not in default in the performance or observance of any of the
material terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred and be continuing, 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) If required under Section 314(a) of the Trust
Indenture Act, the year-end financial statements delivered pursuant to Section
4.03(a) above shall be accompanied by a written statement of the Company's
independent public accountants (which shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article Four or
Article Five 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, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, any 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 and each of the Guarantors covenant (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 and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they 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.
- 50 -
Section 4.07. Restricted Payments.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, take any of the following
actions:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Capital Stock of
the Company or any Restricted Subsidiary, other than (i)
dividends or distributions payable solely in Qualified Equity
Interests or (ii) dividends or distributions by a Restricted
Subsidiary payable to the Company or a Wholly Owned Restricted
Subsidiary or to all holders of Capital Stock of such
Restricted Subsidiary on a pro rata basis, taking into account
the relative preferences, if any, of the various classes of
equity interests in such Restricted Subsidiary;
(ii) purchase, redeem or otherwise acquire or
retire for value, directly or indirectly, any shares of
Capital Stock, or any options, warrants or other rights to
acquire such shares of Capital Stock, of the Company, any
direct or indirect parent of the Company or any Unrestricted
Subsidiary of the Company;
(iii) make any principal payment on, or
repurchase, redeem, defease or otherwise acquire or retire for
value, prior to any scheduled principal payment, sinking fund
payment or maturity, any Subordinated Indebtedness (other than
repurchases, redemptions, defeasances or other acquisitions of
any Subordinated Indebtedness purchased in anticipation of
satisfying a scheduled maturity, sinking fund or amortization
or other installment obligation or mandatory redemption, in
each case due within one year of the date of acquisition and
other than any Subordinated Indebtedness owed to the Company
or any Restricted Subsidiary); and
(iv) make any Investment (other than a Permitted
Investment) in any Person
(such payments or other actions described in (but not excluded
from) clauses (i) through (iv) being referred to as
"Restricted Payments"), unless at the time of, and immediately
after giving effect to, the proposed Restricted Payment:
(A) no Default or Event of Default has
occurred and is continuing;
(B) the Company would, at the time of
such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section
4.09(a); and
(C) the aggregate amount of all
Restricted Payments made after the Closing Date does
not exceed the sum of:
- 51 -
(1) 50% of the aggregate
Consolidated Net Income of the Company
during the period (taken as one accounting
period) from the first day of the Company's
first fiscal quarter commencing after the
Closing Date to the last day of the
Company's most recently ended fiscal quarter
for which internal financial statements are
available at the time of such proposed
Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income is a
loss, minus 100% of such amount); plus
(2) 100% of the aggregate net
cash proceeds received by the Company after
the Closing Date as a capital contribution
or from the issuance or sale (other than to
a Subsidiary) of either (1) Qualified Equity
Interests of the Company (except to the
extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock or
Subordinated Indebtedness as set forth below
in clause (b) (ii) or (iii) below) or (2)
debt securities or Disqualified Stock that
have been converted into or exchanged for
Qualified Stock of the Company, together
with the aggregate net cash proceeds
received by the Company at the time of such
conversion or exchange (and in the case of
clauses (1) and (2), excluding the net cash
proceeds from the issuance of Qualified
Equity Interests or the issuance of
converted or exchanged debt or Disqualified
Stock if and to the extent such net proceeds
were directly or indirectly proceeds of
funds borrowed from the Company or any
Subsidiary, until and to the extent such
borrowing is repaid); plus
(3) any amount which
previously qualified as a Restricted Payment
on account of any Guarantee entered into by
the Company or any Restricted Subsidiary;
provided that such Guarantee has not been
called upon and the obligation arising under
such Guarantee no longer exists.
(b) Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries may take the following actions, so long as no Default or
Event of Default has occurred and is continuing or would occur:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at the declaration
date such payment would not have been prohibited by the
foregoing provisions;
(ii) the repurchase, redemption or other
acquisition or retirement for value of any shares of Capital
Stock of the Company, in exchange for (including any such
exchange pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu of the
issuance of fractional shares or scrip), or out of the net
cash proceeds of a substantially concurrent issuance and sale
(other than to a Subsidiary) of, Qualified Equity Interests of
the Company;
- 52 -
provided that the net cash proceeds from the issuance of such
shares of Qualified Equity Interests are excluded from clause
(C)(2) of the preceding paragraph;
(iii) the purchase, redemption, defeasance or
other acquisition or retirement for value of any Subordinated
Indebtedness in exchange for, or out of the net cash proceeds
of a substantially concurrent issuance and sale (other than to
a Subsidiary) of, shares of Qualified Equity Interests of the
Company; provided that the net cash proceeds from the issuance
of such shares of Qualified Equity Interests are excluded from
clause (C)(2) of the preceding paragraph;
(iv) the purchase, redemption, defeasance or
other acquisition or retirement for value of Subordinated
Indebtedness in exchange for, or out of the net cash proceeds
of a substantially concurrent issuance or sale (other than to
a Restricted Subsidiary) of, Subordinated Indebtedness, so
long as the Company or a Restricted Subsidiary would be
permitted to refinance such original Subordinated Indebtedness
with such new Subordinated Indebtedness pursuant to clause
(iv) of the definition of Permitted Indebtedness set forth in
Section 4.09(c);
(v) the repurchase of any Subordinated
Indebtedness at a purchase price not greater than 101% of the
principal amount of such Subordinated Indebtedness in the
event of a Change of Control in accordance with provisions
similar to Section 4.15 hereof; provided that, prior to or
simultaneously with such repurchase, the Company has made the
Change of Control Offer as provided in Section 4.15 hereof
with respect to the Notes and has repurchased all Notes
validly tendered for payment in connection with such Change of
Control Offer;
(vi) the purchase, redemption, acquisition,
cancellation or other retirement for value of shares of
Capital Stock of the Company, options on any such shares or
related stock appreciation rights or similar securities, in
each case held by officers, directors or employees or former
officers, directors or employees (or their spouses,
descendants (natural or adopted), any trust established and
maintained for the benefit of such Person, his spouse or
descendants, or their estates or beneficiaries under their
estates) of the Company or any Restricted Subsidiary of the
Company, as applicable, or by any employee benefit plan of the
Company or any Restricted Subsidiary of the Company, as
applicable, upon death, disability, retirement or termination
of employment or pursuant to the terms of any employee benefit
plan or any other agreement under which such shares of stock
or related rights were issued; provided that the aggregate
amount of cash applied by the Company for such purchase,
redemption, acquisition, cancellation or other retirement of
such shares of Capital Stock of the Company after the Closing
Date does not exceed (i) $2.5 million in any given year,
provided however, that any unused amount in any given year
pursuant to this clause (i) may be carried forward to increase
the amount available pursuant to this clause (i) in the next
succeeding year (including successive carryforwards), and (ii)
$7.5 million in the aggregate during the term of the Notes
(excluding for purposes of calculating such amount the
aggregate amount received by any Person in connection with
such purchase, redemption, acquisition, cancellation or other
- 53 -
retirement of such shares that is concurrently used to repay
loans made to such Person by the Company pursuant to clause
(f) of the definition of "Permitted Investment");
(vii) payment to the Equity Sponsors in an annual
amount not to exceed $500,000 as consideration for management
consulting or financial advisory services provided to the
Company or any of the Subsidiaries;
(viii) the repurchase of Capital Stock deemed to
occur upon the exercise of stock options to the extent such
Capital Stock represents a portion of the exercise price of
those stock options;
(ix) the declaration and payment of regularly
scheduled or accrued dividends to holders of any class or
series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company or to holders of any class of
preferred stock of any Restricted Subsidiary, in each case
issued on or after the Closing Date in accordance with the
covenant described in Section 4.09; and
(x) other Restricted Payments not to exceed $5
million during the life of this Indenture.
The actions described in clauses (v) and (vi) of Section
4.07(b) will be Restricted Payments that will be permitted to be taken in
accordance with this Section 4.07 but will reduce the amount that would
otherwise be available for Restricted Payments under clause (iv)(C) of Section
4.07(a) hereof and the actions described in clauses (i), (ii), (iii), (iv),
(vii), (viii), (ix) and (x) of Section 4.07(b) will be Restricted Payments that
will be permitted to be taken in accordance with this Section 4.07 and will not
reduce the amount that would otherwise be available for Restricted Payments
under clause (iv)(C) of Section 4.07(a) hereof.
For the purpose of making any calculations under this
Indenture (i) if a Restricted Subsidiary is designated an Unrestricted
Subsidiary, the Company will be deemed to have made an Investment in an amount
equal to the greater of the fair market value or net book value of the net
assets of such Restricted Subsidiary at the time of such designation as
determined by the Board, and (ii) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, as determined by the Board. The amount of all Restricted Payments
(other than cash) shall be the fair market value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred or issued by
the Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any noncash Restricted Payment
shall be determined by the Board whose resolution with respect thereto shall be
delivered to the Trustee, such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $10 million. Not later than
the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required under
this Section 4.07 were computed, together with a copy of any fairness opinion or
appraisal required by this Indenture.
- 54 -
If the aggregate amount of all Restricted Payments calculated
under the foregoing provision includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the foregoing
provision will be reduced by the lesser of (x) the greater of the fair market
value or net book value of such Subsidiary at the time it becomes a Restricted
Subsidiary and (y) the initial amount of such Investment.
If an Investment resulted in the making of a Restricted
Payment, the aggregate amount of all Restricted Payments calculated under the
foregoing provision will be reduced by the amount of any net reduction in such
Investment (resulting from the payment of interest or dividends, loan repayment,
transfer of assets or otherwise), to the extent such net reduction is not
included in the Company's Consolidated Net Income; provided that the total
amount by which the aggregate amount of all Restricted Payments may be reduced
may not exceed the lesser of (x) the cash proceeds received by the Company and
its Restricted Subsidiaries in connection with such net reduction and (y) the
initial amount of such Investment.
In computing the Consolidated Net Income of the Company for
purposes of Section 4.07(a)(iv)(C)(1) hereof, (i) the Company may use audited
financial statements for the portions of the relevant period for which audited
financial statements are available on the date of determination and unaudited
financial statements and other current financial data based on the books and
records of the Company for the remaining portion of such period and (ii) the
Company will be permitted to rely in good faith on the financial statements and
other financial data derived from its books and records that are available on
the date of determination. If the Company makes a Restricted Payment that, at
the time of the making of such Restricted Payment, would in the good faith
determination of the Company be permitted under the requirements of this
Indenture, such Restricted Payment will be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated Net
Income of the Company for any period.
Section 4.08. Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Restricted Subsidiary to (i) pay dividends, in
cash or otherwise, or make any other distributions on or in respect of its
Capital Stock to the Company or any of its Restricted Subsidiaries; (ii) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary; (iii) make
loans or advances to, or any Investment in, the Company or any other Restricted
Subsidiary; or (iv) transfer any of its properties or assets to the Company or
any other Restricted Subsidiary.
(b) However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(i) any agreement (including the Credit
Agreement) in effect on the Closing Date;
- 55 -
(ii) customary non-assignment provisions of any
lease, license or other contract entered into in the ordinary
course of business by the Company or any Restricted
Subsidiary;
(iii) the refinancing or successive refinancing of
Indebtedness incurred under any of the agreements in effect on
the Closing Date (including the Credit Agreement), so long as
such encumbrances or restrictions are no more restrictive,
taken as a whole, than those contained in such original
agreement;
(iv) any agreement or other instrument of a
Person acquired by the Company or any Restricted Subsidiary in
existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets
of the Person, so acquired;
(v) Capitalized Lease Obligations and purchase
money obligations for acquired property permitted under
Section 4.09 hereof that impose restrictions of the nature
described in clause (iv) of Section 4.08(a) hereof on the
property so acquired;
(vi) any agreement for the sale of a Restricted
Subsidiary or an asset that restricts distributions by that
Restricted Subsidiary or transfers of such asset pending its
sale;
(vii) secured Indebtedness otherwise permitted to
be incurred pursuant to Section 4.12 hereof that limits the
right of the debtor to dispose of the assets securing such
Indebtedness;
(viii) restrictions on cash or other deposits or
net worth imposed by leases or supply contracts entered into
in the ordinary course of business;
(ix) Non-Recourse Indebtedness of any Permitted
Joint Venture permitted to be incurred under this Indenture;
(x) applicable law or regulation;
(xi) a Receivables Program with respect to a
Receivables Subsidiary; and
(xii) customary provisions in joint venture,
limited liability company, operating, partnership, shareholder
and other similar agreements entered into in the ordinary
course of business by the Company or any Restricted
Subsidiary.
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified Stock.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, create, issue, assume, guarantee or in any manner
become directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including Acquired
- 56 -
Indebtedness and the issuance of Disqualified Stock), except that the Company
and any Guarantors may incur Indebtedness if, at the time of such event, the
Fixed Charge Coverage Ratio for the immediately preceding four full fiscal
quarters for which internal financial statements are available, taken as one
accounting period, would have been equal to at least 2.0 to 1.0.
(b) In making the foregoing calculation, pro forma effect
will be given to: (i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred and the application of such
proceeds occurred at the beginning of such four-quarter period; (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company or
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was incurred, repaid or retired at the beginning of such
four-quarter period; and (iii) the acquisition (whether by purchase, merger or
otherwise) or disposition (whether by sale, merger or otherwise) of any company,
entity or business acquired or disposed of by the Company or its Restricted
Subsidiaries, as the case may be, since the first day of such four-quarter
period, as if such acquisition or disposition occurred at the beginning of such
four-quarter period; provided that, in the case of clause (iii), such
adjustments in connection with any acquisition of any company, entity or
business will be based on the financial statements or other information of the
company, business or entity acquired, if available, as adjusted in the good
faith judgment of the chief financial or accounting officer of the Company and
set forth in an officers' certificate delivered to the Trustee to reflect the
revenue per patient, cost and operating structure of the Company for similar
assets or businesses consistent with past practice. In making a computation
under the foregoing clause (i) or (ii), (A) the amount of Indebtedness under a
revolving credit facility will be computed based on the average daily balance of
such Indebtedness during such four-quarter period, (B) if such Indebtedness
bears, at the option of the Company, a fixed or floating rate of interest,
interest thereon will be computed by applying, at the option of the Company,
either the fixed or floating rate, and (C) the amount of any Indebtedness that
bears interest at a floating rate will be calculated as if the rate in effect on
the date of determination had been the applicable rate for the entire period
(taking into account any Hedging Obligations applicable to such Indebtedness if
such Hedging Obligations have a remaining term at the date of determination in
excess of 12 months).
(c) Notwithstanding the foregoing, the Company may, and
may permit its Restricted Subsidiaries to, incur the following Indebtedness
("Permitted Indebtedness"):
(i) Indebtedness of the Company or any Guarantor
under a Credit Facility (and the incurrence by any Guarantor
of guarantees thereof) in an aggregate principal amount at any
one time outstanding not to exceed $125 million;
(ii) Indebtedness represented by the Initial
Notes (other than the Additional Notes) and the Guarantees and
the Exchange Notes and related guarantees issued in respect of
the Initial Notes;
(iii) Existing Indebtedness not otherwise referred
to in this definition of "Permitted Indebtedness";
- 57 -
(iv) the incurrence by the Company of Permitted
Refinancing Indebtedness in exchange for, or the net cash
proceeds of which are used to refund, refinance or replace,
any Indebtedness that is permitted to be incurred under clause
(ii) or (iii) above;
(v) Indebtedness owed by the Company to any
Restricted Subsidiary or owed by any Restricted Subsidiary to
the Company or a Restricted Subsidiary (provided that such
Indebtedness is held by the Company or such Restricted
Subsidiary); provided, however, that:
(A) any Indebtedness of the Company or
any Guarantor owing to any such Restricted Subsidiary
is unsecured and subordinated in right of payment
from and after such time as the Notes shall become
due and payable (whether at Stated Maturity,
acceleration, or otherwise) to the payment and
performance of the Company's obligations under the
Notes or the Guarantor's obligations under its
Guarantee, as the case may be; and
(B) (x) any subsequent issuance or
transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary thereof and (y)
any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a
Restricted Subsidiary thereof, shall be deemed, in
each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not
permitted by this clause (v);
(vi) Indebtedness of the Company or any
Restricted Subsidiary under Hedging Obligations incurred not
for speculative purposes;
(vii) Indebtedness of the Company or any
Restricted Subsidiary consisting of guarantees, earn-outs,
indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition
of assets, including, without limitation, shares of Capital
Stock;
(viii) Guarantees by any Restricted Subsidiary made
in accordance with the provisions of Sections 4.19 or 4.20
hereof;
(ix) Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the
ordinary course of business; provided, however, that such
Indebtedness is extinguished within five business days of
incurrence;
(x) Indebtedness of the Company or any of its
Restricted Subsidiaries represented by letters of credit for
the account of the Company or such Restricted Subsidiary, as
the case may be, in order to provide security for workers'
compensation claims, payment obligations in connection with
self-insurance or
- 58 -
similar requirements in the ordinary course of business;
provided that, in each case contemplated by this clause (x),
upon the drawing of such letters of credit or other
instrument, such obligations are reimbursed within 30 days
following such drawing;
(xi) the incurrence of Non-Recourse Indebtedness
by Permitted Joint Ventures that are Restricted Subsidiaries;
(xii) obligations in respect of performance, bid
and surety bonds and completion guarantees provided by the
Company or any Restricted Subsidiary in the ordinary course of
business; and
(xiii) Indebtedness of the Company or any
Restricted Subsidiary not permitted by any other clause of
this definition, in an aggregate principal amount in each case
calculated as of the time such Indebtedness is incurred, not
to exceed at any one time outstanding the Consolidated EBITDA
for the immediately preceding four full fiscal quarters for
which internal financial statements are available, taken as
one accounting period.
(d) For purposes of determining compliance with this
Section 4.09, in the event that any proposed Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness described in clauses
(i) through (xiii) above, or is entitled to be incurred pursuant to Section
4.09(a) hereof, the Company will be permitted to classify all or a portion of
such item of Indebtedness on the date of its incurrence, or later reclassify all
or a portion of such item of Indebtedness, in any manner that complies with this
Section 4.09. Indebtedness under the Credit Agreement incurred on the Closing
Date shall be deemed to have been incurred on the Closing Date in reliance on
the exception provided by clause (i) of the definition of Permitted
Indebtedness.
Accrual of interest, accrual of dividends, accretion or
amortization of original issue discount or other value and the payment of
interest on any Indebtedness in the form of additional Indebtedness, and the
payment of dividends on any Disqualified Stock or Preferred Stock in the form of
additional shares of Disqualified Stock or Preferred Stock will not be deemed to
be an incurrence of Indebtedness for purposes of this covenant; provided, in
each such case, that the amount thereof as accrued is included in the Fixed
Charge Coverage Ratio.
The amount of Indebtedness issued at a price less than the
amount of the liability thereof shall be determined in accordance with GAAP.
Section 4.10. Asset Sales.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, engage in any Asset Sale unless (i) the consideration
received by the Company or such Restricted Subsidiary for such Asset Sale is not
less than the fair market value of the assets sold as evidenced by a resolution
of the board of directors of such entity set forth in an Officers' Certificate
delivered to the Trustee; and (ii) the consideration received by the Company or
the relevant Restricted Subsidiary in respect of such Asset Sale consists of at
least 75% cash or Cash Equivalents. For purposes of this clause (ii), cash and
Cash Equivalents includes (1) any
- 59 -
liabilities (as reflected in the Company's consolidated balance sheet) of the
Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by any transferee of any such assets or other
property in such Asset Sale, and where the Company or the relevant Restricted
Subsidiary is released from any further liability in connection therewith with
respect to such liabilities, (2) any securities, notes or other similar
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted within 180 days of the related Asset Sale by the
Company or such Restricted Subsidiary into cash or Cash Equivalents (to the
extent of the net cash proceeds or the Cash Equivalents (net of related costs)
received upon such conversion); and (3) any Designated Noncash Consideration
received by the Company or any such Restricted Subsidiary in the Asset Sale
having an aggregate fair market value, as determined by the Board, taken
together with all other Designated Noncash Consideration received pursuant to
this clause that is at that time outstanding, not to exceed the greater of:
(A) $7.5 million; and
(B) 10% of Consolidated Tangible Assets at the
time of the receipt of such Designated Noncash Consideration
(with the fair market value of each item of such Designated
Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value).
(b) If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company may, at its option, within 12 months after such
Asset Sale, (i) apply all or a portion of the Net Cash Proceeds to the permanent
reduction of amounts outstanding under the Credit Agreement (and to
correspondingly reduce the commitments, if any, with respect thereto) or to the
repayment of other Senior Indebtedness of the Company or a Restricted
Subsidiary, provided that the repayment of any Indebtedness incurred under the
Credit Agreement with the proceeds of any Sale and Leaseback Transaction shall
not be required to result in the permanent reduction of the amounts outstanding
under the Credit Agreement or correspondingly permanently reduce the commitments
thereunder so long as the Company would at such time after giving effect thereto
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Test set forth in Section 4.09(a) hereof, or (ii) invest
(or enter into a legally binding agreement to invest) all or a portion of such
Net Cash Proceeds in properties and assets to replace the properties and assets
that were the subject of the Asset Sale or in properties and assets that will be
used in the businesses of the Company or its Restricted Subsidiaries, as the
case may be, existing on the Closing Date or in businesses the same, similar or
reasonably related thereto. If any such legally binding agreement to invest such
Net Cash Proceeds is terminated, the Company may, within 90 days of such
termination or within 12 months of such Asset Sale, whichever is later, invest
such Net Cash Proceeds as provided in clause (i) or (ii) (without regard to the
parenthetical contained in such clause (ii)) above. Pending the final
application of any such Net Cash Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest such Net Cash Proceeds in a
manner that is not prohibited by this Indenture. The amount of such Net Cash
Proceeds not so used as set forth above in this paragraph shall constitute
"Excess Proceeds".
(c) When the aggregate amount of Excess Proceeds exceeds
$10 million, the Company will, within 30 days thereafter, make an offer to
purchase (an "Excess Proceeds
- 60 -
Offer") from all Holders of Notes and any other Pari Passu Indebtedness of the
Company (to the extent the terms of such Pari Passu Indebtedness so require) on
a pro rata basis, in accordance with applicable procedures set forth in Section
3.09 of this Indenture, the maximum principal amount (expressed as a multiple of
$1,000) of Notes and Pari Passu Indebtedness that may be purchased with the
Excess Proceeds, at a purchase price in cash equal to 100% of the principal
amount thereof, plus accrued interest, if any, to the date such offer to
purchase is consummated. To the extent that the aggregate principal amount of
Notes and Pari Passu Indebtedness tendered pursuant to such offer to purchase is
less than the Excess Proceeds, the Company may use such deficiency for general
corporate purposes not prohibited under this Indenture. If the aggregate
principal amount of Notes and Pari Passu Indebtedness validly tendered and not
withdrawn by Holders thereof exceeds the Excess Proceeds, the Notes and Pari
Passu Indebtedness to be purchased will be selected on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds will be
reset to zero.
(d) The Company shall comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with an Excess Proceeds
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the "Asset Sales" provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under the "Asset Sales" provisions of
this Indenture by virtue thereof.
Section 4.11. Transactions with Affiliates.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist
any transaction with, or for the benefit of, any Affiliate of the Company
("Interested Persons"), unless (i) such transaction is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in an arm's-length transaction with third
parties who are not Interested Persons and (ii) the Company delivers to the
Trustee (x) with respect to any transaction or series of related transactions
entered into after the Closing Date involving aggregate payments in excess of $5
million, a resolution of the Board set forth in an officers' certificate
certifying that such transaction or transactions complies with clause (i) above
and that such transaction or transactions have been approved by the Board
(including a majority of the Disinterested Directors) and (y) with respect to a
transaction or series of related transactions involving aggregate payments equal
to or greater than $15 million, a written opinion as to the fairness to the
Company or such Restricted Subsidiary of such transaction or series of
transactions from a financial point of view issued by an accounting, appraisal
or investment banking firm, in each case of national standing.
(b) The foregoing Section 4.11(a) will not restrict:
(i) transactions among the Company and/or its
Restricted Subsidiaries;
(ii) the Company from paying reasonable and
customary regular compensation, including under any stock
option or stock incentive plans,
- 61 -
indemnification, reimbursement and fees to officers of the
Company or any Restricted Subsidiary and to directors of the
Company or any Restricted Subsidiary who are not employees of
the Company or any Restricted Subsidiary;
(iii) transactions permitted by Section 4.07
hereof;
(iv) advances to employees for moving,
entertainment and travel expenses and similar expenditures in
the ordinary course of business and consistent with past
practice;
(v) any Receivables Program of the Company or a
Restricted Subsidiary;
(vi) the agreements as in effect as of the
Closing Date or any amendment thereto (so long as the amended
agreement, taken as a whole, is not more disadvantageous to
the Holders in any material respect than such agreement
immediately prior to such amendment) or any transaction
contemplated thereby; and
(vii) sales of Equity Interests; and
(viii) loans and advances permitted by clause
(f)(ii) of the definition of "Permitted Investments".
Section 4.12. Liens.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien securing Pari Passu Indebtedness or Subordinated
Indebtedness of the Company on or with respect to any of its property or assets,
including any shares of stock or Indebtedness of any Restricted Subsidiary,
whether owned at the Closing Date or thereafter acquired, or any income, profits
or proceeds therefrom, or assign or otherwise convey any right to receive income
thereon, unless:
(i) in the case of any Lien securing
Subordinated Indebtedness, the Notes are secured by a Lien on
such property, assets or proceeds that is senior in priority
to such Lien; and
(ii) in the case of any Lien securing Pari Passu
Indebtedness, the Notes are secured by a Lien on such
property, assets or proceeds that is senior in priority to or
ranks equally with such Lien.
(b) The Company will not permit any Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
securing Pari Passu Indebtedness or Subordinated Indebtedness of such Guarantor
on or with respect to such Guarantor's properties or assets, including any
shares of stock or Indebtedness of any other Restricted Subsidiary owned by such
Guarantor, whether owned at the Closing Date or thereafter acquired, or any
income, profits or proceeds therefrom, or assign or otherwise convey any right
to receive income thereon, unless:
- 62 -
(i) in the case of any Lien securing Pari Passu
Indebtedness of such Guarantor, each Guarantee of such
Guarantor is secured by a Lien on such property, assets or
proceeds that is senior in priority to or ranks equally with
such Lien; and
(ii) in the case of any Lien securing
Subordinated Indebtedness of such Guarantor, each Guarantee of
such Guarantor is secured by a Lien on such property, assets
or proceeds that is senior in priority to such Lien.
(c) Notwithstanding the foregoing, any Lien securing the
Notes required to be granted pursuant to this covenant shall be automatically
and unconditionally released and discharged upon the release by the holders of
the applicable Pari Passu Indebtedness or Subordinated Indebtedness of their
Lien on the property or assets of the Company or any Restricted Subsidiary or
Guarantor (including any deemed release upon payment in full of all obligations
under such Indebtedness), at such time as the holders of such Pari Passu
Indebtedness or Subordinated Indebtedness also release their Lien on the
property or assets of the Company or such Restricted Subsidiary or such
Guarantor, or upon any sale, exchange or transfer to any Person not an Affiliate
of the Company of the property or assets secured by such Lien, or of all of the
Capital Stock held by the Company or any Restricted Subsidiary or any Guarantor
in, or all or substantially all the assets of, any Restricted Subsidiary
creating such Lien.
Section 4.13. Corporate Existence.
Subject to Article Five, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary; provided that the Company shall not be
required to preserve any such right or franchise if the Board shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries as a whole and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 4.14. Limitation on Layering Debt.
Neither the Company nor any Guarantor will incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness or
guarantee, as applicable, that is subordinate or junior in right of payment to
any Senior Indebtedness and senior in any respect in right of payment to the
Notes or such Guarantor's Guarantee, respectively.
Section 4.15. Offer to Repurchase upon a Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of purchase (the
"Change of Control Payment").
- 63 -
(b) Within 30 days following any Change of Control, or at
the Company's option, prior to such Change of Control but after it is publicly
announced, the Company shall notify the Trustee thereof and give written notice
of such Change of Control to each Holder of Notes by first-class mail, postage
prepaid, at its address appearing in the security register stating:
(i) that the Change of Control Offer is being
made pursuant to this Section 4.15 and that all Notes tendered
will be accepted for payment;
(ii) the purchase price and the purchase date,
which will be a Business Day (i) no earlier than the later of
(a) 30 days from the date such notice is mailed and (b) the
date of the Change of Control, and (ii) no later than 60 days
from the date such notice is mailed or such later date as is
necessary to comply with the requirements under the Exchange
Act (the "Change of Control Payment Date");
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted
for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment
Date;
(v) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be
required to surrender the Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Notes completed or transfer by book entry transfer, to the
Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the
Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing its election to have
the Notes purchased; and;
(vii) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
(c) By 2:00 p.m. Eastern Time on the Change of Control
Payment Date, the Company shall, to the extent lawful, (i) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Notes or portions thereof so tendered and
(iii) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee shall promptly
- 64 -
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each such new Note shall be in a principal
amount of $1,000 or an integral multiple thereof.
(d) Notwithstanding anything to the contrary in this
Section 4.15, the Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and all other provisions of this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(e) The Company shall comply with the applicable tender
offer rules including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws and regulations in connection with a Change of
Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the "Change of Control" provisions of this Indenture,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the "Change of
Control" provisions of this Indenture by virtue thereof.
Section 4.16. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries.
The Company (a) will not permit any Restricted Subsidiary to
issue any Capital Stock unless after giving effect thereto the Company's
percentage interest (direct and indirect) in the Capital Stock of such
Restricted Subsidiary is at least equal to its percentage interest prior
thereto, and (b) will not, and will not permit any Restricted Subsidiary to,
transfer, convey, sell, lease or otherwise dispose of any Capital Stock of any
Restricted Subsidiary to any Person (other than the Company or a Wholly Owned
Restricted Subsidiary); provided, however, that this covenant will not prohibit
(i) the sale or other disposition of all, but not less than all, of the issued
and outstanding Capital Stock of a Restricted Subsidiary owned by the Company
and its Restricted Subsidiaries in compliance with the other provisions of this
Indenture, (ii) the sale or other disposition of a portion of the issued and
outstanding Capital Stock of a Restricted Subsidiary, whether or not as a result
of such sale or disposition such Restricted Subsidiary continues or ceases to be
a Restricted Subsidiary, if (A) such sale or disposition is of a portion of the
issued and outstanding Capital Stock of a Guarantor, such Guarantor continues to
guarantee the Notes, and (B) such sale or disposition is permitted under, and
the Company or such Restricted Subsidiary applies the Net Cash Proceeds of any
such sale in accordance with, Section 4.10 hereof, or (iii) the ownership by
directors of director's qualifying shares or the ownership by foreign nationals
of Capital Stock of any Restricted Subsidiary, to the extent mandated by
applicable law.
Section 4.17. Unrestricted Subsidiaries.
(a) The Board may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) such Subsidiary has no Indebtedness other than Non-Recourse
Indebtedness, except that such Subsidiary may Guarantee the Notes, (ii) no
default with respect to any Indebtedness of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any
- 65 -
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity,
(iii) any Investment in such Subsidiary made as a result of designating such
Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section
4.07 hereof, (iv) neither the Company nor any Restricted Subsidiary has a
contract, agreement, arrangement, understanding or obligation of any kind,
whether written or oral, with such Subsidiary other than those that might be
obtained at the time from Persons who are not Affiliates of the Company, and (v)
neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other equity interests in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results.
(b) The Board may designate any Unrestricted Subsidiary
as a Restricted Subsidiary; provided that (i) no Default or Event of Default has
occurred and is continuing following such designation and (ii) the Company
would, at the time of making such designation and giving such pro forma effect
as if such designation had been made at the beginning of the applicable four
quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) hereof (treating any Indebtedness of such Unrestricted
Subsidiary as the incurrence of Indebtedness by a Restricted Subsidiary).
Section 4.18. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries
will, 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 4.19. Guarantees of Indebtedness by Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary
that is not a Guarantor, directly or indirectly, to guarantee, assume or in any
other manner become liable for the payment of any Indebtedness of the Company or
any Indebtedness of any Guarantor or secure the payment of any Indebtedness of
the Company, including pledging any intercompany notes, unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture providing for a guarantee of payment of the Notes by such Restricted
Subsidiary on a senior subordinated basis on the same terms as set forth in this
Indenture and (ii) with respect to any guarantee of Subordinated Indebtedness by
a Restricted Subsidiary, any such guarantee is subordinated to such Restricted
Subsidiary's guarantee with respect to the Notes at least to the same extent as
such Subordinated Indebtedness is subordinated to the Notes, provided that the
foregoing provision will not be applicable to any guarantee by any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary.
(b) Any guarantee by a Restricted Subsidiary of the Notes
pursuant to the preceding paragraph may provide by its terms that it will
automatically and unconditionally be
- 66 -
released and discharged upon (i) any sale, exchange or transfer to any Person
not an Affiliate of the Company of all of the Company's and the Restricted
Subsidiaries' Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary, or the designation of such Restricted Subsidiary as an
Unrestricted Subsidiary (in any such case which transaction is not prohibited by
this Indenture) or (ii) the release by the holders of the Indebtedness described
in the prior paragraph of their security interest or their guarantee by such
Restricted Subsidiary, at such time as (A) no other Indebtedness described in
the prior paragraph has been secured or guaranteed by such Restricted
Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is secured or guaranteed by such Restricted Subsidiary also
release their security interest in or guarantee by such Restricted Subsidiary,
except a discharge or release by or as a result of payment under such guarantee.
Section 4.20. Issuances of Guarantees by New Wholly Owned Restricted
Subsidiaries.
The Company will provide to the Trustee, within 30 days after
the date that any Person (other than a Foreign Subsidiary) becomes a Wholly
Owned Restricted Subsidiary, a supplemental indenture to this Indenture,
executed by such new Wholly Owned Restricted Subsidiary, providing for a full
and unconditional guarantee on a senior subordinated basis by such new Wholly
Owned Restricted Subsidiary of the Company's obligations under the Notes and
this Indenture to the same extent as that set forth in this Indenture.
Section 4.21. Lines of Business
Neither the Company nor any of its Restricted Subsidiaries
will directly or indirectly engage in any line or lines of business activity
other than that which is a Permitted Business.
ARTICLE FIVE
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
(a) The Company will not, in a single transaction or
series of related transactions, consolidate or merge with or into, or directly
and/or indirectly through its Subsidiaries, sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets (determined on a consolidated basis for the Company and its Subsidiaries,
taken as a whole) in one or more related transactions to, another corporation,
Person or entity unless:
(i) either (x) the Company is the surviving
corporation or (y) the entity or the Person formed by or
surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (the
"Surviving Entity") is a corporation organized or existing
under the laws of the United States, any state thereof or the
District of Columbia and assumes all the obligations of the
Company under the Notes and this Indenture and the
Registration Rights Agreement, as the case may be, pursuant to
a supplemental indenture in a form
- 67 -
reasonably satisfactory to the Trustee, and the Notes and this
Indenture and the Registration Rights Agreement will remain in
full force and effect as so supplemented (and any Guarantees
will be confirmed as applying to such Surviving Entity's
obligations);
(ii) immediately after giving effect to such
transaction and treating any obligation of the Company in
connection with or as a result of such transaction as having
been incurred as of the time of such transaction, no Default
or Event of Default has occurred and is continuing;
(iii) the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture)
could, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant Section 4.09(a) hereof;
(iv) each Guarantor, unless it is the other party
to the transaction described above or the Company is the
continuing obligor under this Indenture, has by supplemental
indenture confirmed that its Guarantee applies to the
Surviving Entity's obligations under this Indenture and the
Notes;
(v) if any of the property or assets of the
Company or any of its Restricted Subsidiaries would thereupon
become subject to any Lien, the provisions of Section 4.12
hereof are complied with; and
(vi) the Company delivers or causes 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
complies with the requirements of this Indenture.
(b) This Indenture will provide that no Guarantor may
consolidate with or merge with or into any other Person or convey, sell, assign,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any other Person (other than the Company or another Guarantor)
unless:
(i) subject to the provisions of the following
paragraph, the Person formed by or surviving such
consolidation or merger or to which such properties and assets
are transferred assumes all of the obligations of such
Guarantor under this Indenture and its Guarantee and the
Registration Rights Agreement, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, and such Guarantee, Indenture and Registration Rights
Agreement will remain in full force and effect;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default has occurred and
is continuing; and
(iii) the Guarantor delivers, or causes to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate
- 68 -
and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture and that all
conditions precedent therein provided for relating to such
transaction have been complied with.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(c) In the event of any transaction described in and
complying with the provisions of Section 5.01(a) hereof in which the Company is
not the continuing obligor under this Indenture, the Surviving Entity will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, the Notes and the Registration Rights
Agreement, and thereafter the Company will, except in the case of a lease, be
discharged from all of its obligations and covenants under this Indenture, the
Notes and the Registration Rights Agreement.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Remedies.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest on any Note
when it becomes due and payable, and continuance of such default for a period of
30 days (whether or not prohibited by Article Ten of this Indenture);
(b) default in the payment of the principal of (or
premium, if any, on) the Notes when due whether at maturity, upon redemption, by
acceleration or otherwise (whether or not prohibited by Article Ten of this
Indenture);
(c) failure to perform or comply with the provisions of
Sections 4.10, 4.15 and 5.01 hereof;
(d) default in the performance, or breach, of any
covenant or agreement of the Company or any Guarantor contained in this
Indenture or in any Guarantee (other than a default in the performance, or
breach, of a covenant or agreement that is specifically dealt with elsewhere
herein), and continuance of such default or breach for a period of 60 days (or
30 days in the case of the failure to perform or comply with Sections 4.07 and
4.09 hereof) after written notice has been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
- 69 -
(e) (x) an event of default has occurred under any
mortgage, bond, indenture, loan agreement or other document evidencing an issue
of Indebtedness of the Company or any Significant Subsidiary, which issue
individually or in the aggregate has an aggregate outstanding principal amount
of not less than $10 million, and such default has resulted in such Indebtedness
becoming, whether by declaration or otherwise, due and payable prior to the date
on which it would otherwise become due and payable or (y) a default in any
payment when due at final maturity of any such Indebtedness;
(f) failure by the Company or any of its Significant
Subsidiaries to pay one or more final judgments the uninsured portion of which
exceeds in the aggregate $10 million, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days;
(g) any Guarantee ceases to be in full force and effect
or is declared null and void or any such Guarantor denies that it has any
further liability under any Guarantee, or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of any such
Guarantee in accordance with this Indenture); or
(h) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect of the
Company or any Significant Subsidiary under any Bankruptcy Law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(i) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any Bankruptcy Law, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company, or
any Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due.
Section 6.02. Acceleration.
(a) If an Event of Default (other than as specified in
Sections 6.01(h) or (i) hereof) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding may, and the Trustee at the request of such Holders will, declare
the principal of, and accrued interest on, all of the outstanding Notes
immediately due and payable and, upon any such declaration, such principal and
such interest will become due and payable immediately. The Trustee shall
promptly notify the Company of any such acceleration of the Notes pursuant to
this Section 6.02(a).
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by or on behalf of the Company
with the intention of
- 70 -
avoiding payment of the premium that the Company would have had to pay if the
Company had then elected to redeem the Notes pursuant to Article Three of this
Indenture, an equivalent premium shall also become immediately due and payable
to the extent permitted by law upon the acceleration of the Notes. If an Event
of Default occurs during any time that the Notes are outstanding, by reason of
any willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding the limitation on redemptions of Notes specified
in this Indenture, then the premium specified in paragraphs (a) or (b) of
Section 3.07 hereof, as applicable, shall also become immediately due and
payable to the extent permitted by law upon the acceleration of the Notes.
If an Event of Default specified in Sections 6.01(h) or (i)
hereof occurs and is continuing, then the principal of and accrued interest on
all of the outstanding Notes will ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
(b) At any time after a declaration of acceleration under
this Indenture, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to the Company and the
Trustee, may rescind such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Notes, (B) all unpaid principal of (and premium, if any, on) any
outstanding Notes that has become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes, (C) to the
extent that payment of such interest is lawful, interest upon overdue interest
and overdue principal at the rate borne by the Notes and (D) all sums paid or
advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
(ii) all Events of Default, other than the non-payment of amounts of principal
of (or premium, if any, on), interest on the Notes that have become due solely
by such declaration of acceleration, have been cured or waived. No such
rescission will affect any subsequent default or impair any right consequent
thereon.
(c) Notwithstanding the preceding paragraph, in the event
of a declaration of acceleration in respect of the Notes because an Event of
Default specified in Section 6.01(e) shall have occurred and be continuing and
provided no judgment or decree for payment of the money due has been obtained by
the Trustee, such declaration of acceleration shall be automatically annulled if
the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness, and written notice of such
discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Indebtedness or
a trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Notes, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
- 71 -
Section 6.03. Other Remedies.
(a) 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, or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
(b) 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 of a Note in exercising any
right or remedy accruing upon and during the continuance of an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 6.04. Waiver of Past Defaults.
Holders of a majority in 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) a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes (which may only be waived with the
consent of each Holder of Notes effected), or (b) a Default or Event of Default
in respect of a covenant or a provision hereof which under this Indenture cannot
be modified or amended without the consent of the Holder of each Note affected
by such modification or amendment (provided, however, that the Holders of a
majority in principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture
and the Notes, as permitted by the TIA. 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.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest.
- 72 -
Section 6.06. Limitation on Suits.
(a) A Holder may pursue a remedy with respect to this
Indenture, or the Notes or the Guarantees only if:
(i) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(ii) the Holders of at least 25% in principal
amount of the then outstanding Notes make a written request to
the Trustee to pursue the remedy;
(iii) such Holder of a Note or Holders of Notes
offer and, if requested, provide to the Trustee security and
indemnity satisfactory to the Trustee against any loss,
liability or expense that might be incurred by it in
connection with the request or direction;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and,
if requested, the provision of indemnity; and
(v) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes do
not give the Trustee a direction inconsistent with the
request.
(b) A Holder of a Note may not use this Indenture to
prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
interest 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 Section 6.01(a) or (b)
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, interest remaining unpaid on the Notes
and interest on overdue principal and premium, if any, 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.
- 73 -
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 of the Notes allowed in any judicial proceedings relative to the
Company or any Guarantor (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 securities or 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.
(a) If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date
for any payment to Holders of Notes pursuant to this Section 6.10.
- 74 -
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 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, and is actually known to the Trustee, 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 person would exercise or
use under the circumstances in the conduct of such person's 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 on their
face to the requirements of this Indenture.
(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;
(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.
- 75 -
(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 7.01.
(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 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 security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(f) Money held in trust by the Trustee need not be
segregated from other funds and need not be held in an interest-bearing account,
in each case except to the extent required by law or by any other provision of
this Indenture.
Section 7.02. Certain 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 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 reasonably 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 security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) 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
- 76 -
written notice of such event is sent to the Trustee in accordance with Section
13.02 hereof, and such notice references the Notes.
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 become a creditor of, or otherwise deal
with, the Company or any of its Affiliates with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest as described in the Trust Indenture Act, it must eliminate
such conflict within 90 days, apply to the Commission 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 Sections 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, 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 of Notes 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
or interest 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 of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the
May 15 following the date hereof, and for so long as Notes remain outstanding,
the Trustee shall mail to the Holders of the Notes a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to
the Holders of Notes 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 Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or any delisting thereof.
- 77 -
Section 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee (in its capacity
as Trustee, and, to the extent it has been appointed as such, as Paying Agent
and Registrar) from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder in accordance with a written schedule
provided by the Trustee to the Company. 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 and
customary disbursements, advances and reasonable out-of-pocket expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable and customary compensation, disbursements and
expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any
and all losses, liabilities or reasonable out-of-pocket expenses 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 either of 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 loss,
liability or expense may be attributable to its 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 and customary 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.
(c) The obligations of the Company under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
(d) 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 and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(h) or (i) 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.
Section 7.08. Replacement of Trustee.
(a) 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 7.08.
(b) 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
- 78 -
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:
(i) the Trustee fails to comply with Section
7.10 hereof;
(ii) 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;
(iii) a custodian or public officer takes charge
of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) 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.
(d) 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 Notes of at least 10% in principal amount of the then
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) 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.
(f) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. 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
Person, the successor Person 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
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is
- 79 -
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has (or
its corporate Parent shall have) a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The Trustee hereby waives any right to set-off any claim that it may
have against the Company in any capacity (other than as Trustee and Paying
Agent) against any of the assets of the Company held by the Trustee; provided,
however, that if the Trustee is or becomes a lender of any other Indebtedness
permitted hereunder to be pari passu with the Notes, then such waiver shall not
apply to the extent of such Indebtedness.
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of the Board evidenced by a
resolution set forth in an Officers' Certificate, 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 Eight.
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
and all obligations of the Guarantors shall be deemed to have been discharged
with respect to their obligations under the Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "legal defeasance"). For
this purpose, Legal Defeasance means that the Company and the Guarantors shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and Guarantees, respectively, 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 on such Notes when
such payments are due, (b) the Company's obligations with respect to such Notes
under Article Two and Section 4.02 hereof,
- 80 -
(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.
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 4.03, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19, 4.20 and 5.01 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 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. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through (g) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
(a) The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(i) the Company must irrevocably deposit or
cause to be deposited with the Trustee, as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders, money in an amount, or
U.S. Government Obligations that through the scheduled payment
of principal and interest thereon will provide money in an
amount, or a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public
accountants, investment bank or appraisal firm, to pay and
discharge the principal of (and premium, if any, on) and
interest on the outstanding Notes at maturity (or upon
redemption, if applicable) of such principal or installment of
interest;
(ii) no Default or Event of Default has occurred
and is continuing on the date of such deposit or, insofar as
an event of bankruptcy under Section 6.01(h) is concerned, at
any time during the period ending on the 91st day after the
date of such deposit;
- 81 -
(iii) such Legal Defeasance or Covenant Defeasance
may not result in a breach or violation of, or constitute a
default under, this Indenture, the Credit Agreement or any
material agreement or instrument to which the Company or any
Guarantor is a party or by which it is bound;
(iv) in the case of Legal Defeasance, the Company
must deliver to the Trustee an Opinion of Counsel stating that
the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or, since the Closing
Date, there has been a change in applicable federal income tax
law, to the effect, and based thereon such opinion must
confirm, that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal
Defeasance had not occurred;
(v) in the case of Covenant Defeasance, the
Company must have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the outstanding
Notes 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
(vi) the Company must have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for
relating to either the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
(a) Subject to Section 8.06 hereof, all money and
non-callable 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 such
Notes of all sums due and to become due thereon in respect of principal, premium
and interest, but such money need not be segregated from other funds except to
the extent required by law.
(b) The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable 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.
- 82 -
(c) Anything in this Article Eight 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 non-callable 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 public accountants, investment
bank, or appraisal firm expressed in a written certification thereof delivered
to the Trustee (which may be the opinion delivered under Section 8.04(a)
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 the 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 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 of such Note 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 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 non-callable 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
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02 of this Indenture, the
Company, the Guarantors, and the Trustee may amend or supplement this Indenture
or the Notes without the consent of any Holder of a Note:
- 83 -
(i) to evidence the succession of another Person
to the Company and the assumption by any such successor of the
covenants of the Company in this Indenture and in the Notes;
or
(ii) to add to the covenants of the Company for
the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company; or
(iii) to add additional Events of Defaults; or
(iv) to provide for uncertificated Notes in
addition to or in place of certificated Notes; or
(v) to evidence and provide for the acceptance
of appointment under this Indenture by a successor Trustee; or
(vi) to secure the Notes; or
(vii) to cure any ambiguity, to correct or
supplement any provision in this Indenture that may be
defective or inconsistent with any other provision in this
Indenture, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided
that such actions pursuant to this clause do not adversely
affect the interests of the Holders in any material respect;
or
(viii) to comply with any requirements of the
Commission in order to effect and maintain the qualification
of this Indenture under the Trust Indenture Act; or
(ix) to provide for the issuance of Additional
Notes in accordance with the limitations set forth in this
Indenture as of its date; or
(x) to allow any Guarantor to execute a
supplemental Indenture and a Guarantee with respect to the
Notes; or (xi) to provide for the issuance of the Exchange
Notes pursuant to the terms of this Indenture.
Notwithstanding the foregoing, and so long as the Credit
Agreement is outstanding, neither the Company nor the Trustee may amend any
provisions of this Indenture or the Notes concerning the subordination of the
Notes and the Guarantees without the prior written consent of the Agent Bank,
acting on behalf of the Banks under the Credit Agreement.
(b) Upon the request of the Company accompanied by a
resolution of its Board 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
- 84 -
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.
(a) Except as provided below in this Section 9.02, the
Company the Guarantors and the Trustee may amend or supplement this Indenture or
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
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default 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) (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes).
(b) 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 its 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.
(c) Upon the request of the Company accompanied by a
resolution of its Board authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Holders of Notes 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.
(d) It shall not be necessary for the consent of the
Holders of Notes 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.
(e) After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, 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 then outstanding
Notes (including Additional Notes, if any) may waive compliance in a particular
instance by the Company with any provision of this Indenture, or the Notes.
However, without the consent of each Holder
- 85 -
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(i) change the Stated Maturity of the principal
of, or any installment of interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change the
coin or currency in which any Note or any premium or the
interest thereon are payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after
the redemption date);
(ii) amend, change or modify (A) Section 4.18
hereof or (B) the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change
of Control in accordance with Section 4.15 hereof, including,
amending, changing or modifying any definition relating
thereto;
(iii) reduce the percentage in principal amount of
outstanding Notes, the consent of whose Holders is required
for any waiver of compliance with certain provisions of, or
certain defaults and their consequences provided for under,
this Indenture;
(iv) waive a Default or Event of Default in the
payment of principal of, or premium, if any, or interest on
the Notes;
(v) modify the subordination provisions of the
Notes or the Guarantee of any Guarantor;
(vi) release any Guarantor from any of its
obligations under its Guarantee or this Indenture other than
in accordance with the terms of this Indenture; or
(vii) make any change in the preceding amendment
and waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an 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 of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note 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 of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective.
- 86 -
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.
(a) 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.
(b) 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
or Note authorized pursuant to this Article Nine 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 or Note
until its Board approves it. In executing any amended or supplemental indenture
or Note, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE TEN
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by the Notes and any other payment
obligations on or with respect to the Notes (including any obligation to
repurchase the Notes) is subordinated in right of payment, to the extent and in
the manner provided in this Article Ten, to the prior payment in full of all
Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Indebtedness.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
The holders of Senior Indebtedness of the Company will be
entitled to receive payment in full of all Obligations due in respect of Senior
Indebtedness of the Company (including interest after the commencement of any
bankruptcy proceeding at the rate specified in the applicable Senior
Indebtedness of the Company) before the Holders will be entitled to receive any
payment with respect to the Notes (except that Holders may receive and retain
equity securities of the Company or debt securities of the Company or a
Guarantor that are subordinated at least to the same extent as the Notes and
Guarantees are subordinated to Senior Indebtedness and any debt securities
issued in exchange for Senior Indebtedness ("Permitted Junior Securities") and
payments made from the trust pursuant to Article Eight hereunder), in the event
- 87 -
of any distribution to creditors of the Company: (i) in a liquidation or
dissolution of the Company; (ii) in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property;
(iii) in an assignment for the benefit of creditors; or (iv) in any marshaling
of the Company's assets and liabilities.
Section 10.03. Default on Designated Senior Indebtedness.
(a) The Company may not make any payment in respect of
the Notes (except in Permitted Junior Securities or from the trust pursuant to
Article Eight hereof):
(i) in the event any default in the payment of
principal of, interest or premium, if any, on Designated
Senior Indebtedness occurs (a "Payment Event of Default"); or
(ii) any Non-Payment Event of Default occurs and
is continuing with respect to Designated Senior Indebtedness
which permits holders of the Designated Senior Indebtedness as
to which such default relates to accelerate its maturity and
the Trustee receives a notice of such default (a "Payment
Blockage Notice") from (A) with respect to the Designated
Senior Indebtedness arising under the Credit Agreement, the
Agent Bank, or (B) with respect to any other Designated Senior
Indebtedness, the holders or the representative of the holders
of any such Designated Senior Indebtedness.
(iii) Payments on the Notes may and shall be
resumed (x) in the case of a Payment Event of Default, upon
the date on which such default is cured or waived and (y) in
case of a Non-Payment Event of Default, upon the earlier of
the date on which such Non-Payment Event of Default is cured
or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received unless the maturity of any
Designated Senior Indebtedness has been accelerated. No new
period of payment blockage may be commenced by a Payment
Blockage Notice unless and until (i) 360 days have elapsed
since the first day of the effectiveness of the immediately
prior Payment Blockage Notice and (ii) all scheduled payments
of principal, premium, if any, and interest on the Notes that
have come due have been paid in full in cash. No Non-Payment
Event of Default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage
Notice, unless such default has been cured or waived for a
period of not less than 90 days.
Section 10.04. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
Section 10.05. When Distribution Must Be Paid Over.
(a) In the event that the Trustee or any Holder receives
any payment of any Obligations with respect to the Notes (except in Permitted
Junior Securities or from the trust
- 88 -
pursuant to Article Eight hereof) at a time when such payment is prohibited by
Article Ten hereof and the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by Article Ten hereof, such payment
shall be held by the Trustee or such Holder, as applicable, in trust for the
benefit of the holders of Senior Indebtedness of the Company. Upon proper
written request of the holders of Senior Indebtedness of the Company, the
Trustee or such Holder, as the case may be, shall deliver the amounts in trust
to the holders of Senior Indebtedness or their proper Representative under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all Obligations with respect to Senior Indebtedness remaining
unpaid to the extent necessary to pay such Obligations in full in accordance
with their terms, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
(b) With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Article Ten, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Company or any other Person money
or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Ten, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
Section 10.06. Notice by the Company.
The Company shall promptly notify the Trustee and the Paying
Agent in writing of any facts known to the Company that would cause a payment of
any Obligations with respect to the Notes to violate this Article Ten, but
failure to give such notice shall not affect the subordination of the Notes to
the Senior Indebtedness as provided in this Article Ten.
Section 10.07. Subrogation.
After all Senior Indebtedness is paid in full and until the
Notes are paid in full, Holders shall be subrogated (equally and ratably with
the holders of all Indebtedness of the Company which by its express terms is
subordinated to Senior Indebtedness of the Company to the same extent as the
Notes are subordinated and which is entitled to like rights of subrogation) to
the rights of holders of Senior Indebtedness to receive distributions applicable
to Senior Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Indebtedness. A distribution
made under this Article Ten to holders of Senior Indebtedness that otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company on the Notes.
Section 10.08. Relative Rights.
(a) This Article Ten defines the relative rights of
Holders and holders of Senior Indebtedness. Nothing in this Indenture shall:
- 89 -
(i) impair, as between the Company and Holders,
the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes
in accordance with their terms;
(ii) affect the relative rights of Holders of
Notes and creditors of the Company other than their rights in
relation to holders of Senior Indebtedness; or
(iii) prevent the Trustee or any Holder of Notes
from exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners of
Senior Indebtedness to receive distributions and payments
otherwise payable to Holders.
(b) If the Company fails because of this Article Ten to
pay principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
Section 10.09. Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
(a) Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness, the distribution may be made and the
notice given to their Representative.
(b) Upon any payment or distribution of assets of the
Company referred to in this Article Ten, the Trustee and the Holders of Notes
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Ten.
Section 10.11. Rights of Trustee and Paying Agent.
(a) Notwithstanding the provisions of this Article Ten or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee shall have received
at its Corporate Trust Office at least five Business Days prior to the date of
such payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this Article Ten. Only the
Company or a Representative may give the notice. Nothing in this Article Ten
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
- 90 -
(b) The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder, by the Holder's acceptance thereof, agrees and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Ten, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the lenders under the Credit Agreement are hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes.
ARTICLE ELEVEN
GUARANTEES
Section 11.01. Guarantee.
(a) Subject to this Article Eleven each of the Guarantors
hereby absolutely, jointly and severally, fully and unconditionally and
irrevocably guarantees to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Notes or the obligations
of the Company hereunder or thereunder, that: (i) the principal of, premium, if
any, and interest, on the Notes will be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful (subject in
all cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Subject to Section 6.06 hereof, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenant
- 91 -
that this Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(d) Each Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. Each Guarantor that makes a payment or distribution under its
Guarantee shall have the right to seek contribution from any non-paying
Guarantor in a pro rata amount based on the net assets of each Guarantor, so
long as the exercise of such right does not impair the rights of the Holders
under the Guarantee.
Section 11.02. Subordination of Guarantee.
The Obligations of each Guarantor under its Guarantee pursuant
to this Article Eleven shall be junior and subordinated to the prior payment in
full of all Senior Indebtedness of such Guarantor (including Senior Indebtedness
of the Guarantor incurred after the date hereof) on the same basis as the Notes
are junior and subordinated to the prior payment in full all Senior Indebtedness
of the Company, as described in Article Ten hereof. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by any of the Guarantors only at such times as they may
receive and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article Ten hereof.
Section 11.03. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article Eleven,
result in the
- 92 -
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance.
Until such time as the Notes are paid in full, each Guarantor
hereby waives all rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any such right
arising under federal bankruptcy law) or otherwise by reason of any payment by
it pursuant to the provisions of this Article Eleven.
Section 11.04. Execution and Delivery of Guarantee.
(a) To evidence its Guarantee set forth in Section 11.01,
each Guarantor hereby agrees that a notation of such Guarantee substantially in
the form included in Exhibit E shall be endorsed by an Officer of such Guarantor
by manual or facsimile signature on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Guarantor by
any of its executive officers by manual or facsimile signature.
(b) Each Guarantor hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
(c) If an Officer whose signature is on this Indenture or
on the Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Guarantee is endorsed, the Guarantee shall be
valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.
(e) In the event that the Company creates or acquires any
new Wholly Owned Restricted Subsidiaries subsequent to the date of this
Indenture, if required by Section 4.20 hereof, the Company shall cause such
Subsidiaries to execute supplemental indentures to this Indenture and Guarantees
in accordance with Section 4.20 hereof and this Article Eleven, to the extent
applicable.
Section 11.05. Releases of Guarantors.
(a) A Guarantor will be deemed automatically and
unconditionally released and discharged from all of its obligations under its
Guarantee without any further action on the part of the Trustee or any Holder of
the Notes in accordance with Section 4.19(b) hereof; provided that any such
termination shall occur only if the Trustee is furnished with written notice of
such release together with an Officers' Certificate from such Guarantor to the
effect that all of the conditions to release in Section 4.19(b) have been
satisfied.
(b) Any Guarantor not released from its obligations under
its Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article Eleven.
- 93 -
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge.
(a) This Indenture shall be discharged and shall cease to
be of further effect as to all Notes issued thereunder, when:
(i) either:
(A) 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
(B) 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 or any
Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S.
dollars, non-callable 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 and
accrued interest to the date of maturity or
redemption;
(ii) 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 breach or violation of, or constitute a
default under, any other instrument to which the Company or
any Guarantor is a party or by which the Company or any
Guarantor is bound;
(iii) the Company or any Guarantor has paid or
caused to be paid all sums payable by it hereunder; and
(iv) the Company has delivered irrevocable
instructions to the Trustee hereunder to apply the deposited
money toward the payment of the Notes at maturity or the
redemption date, as the case may be.
(b) In addition, the Company must deliver an Officers'
Certificate and an Opinion of Counsel (which opinion may be subject to customary
assumptions and exclusions) to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
(c) Notwithstanding the above, the Trustee shall pay to
the Company from time to time upon its request any cash or U.S. Government
Obligations held by it as provided in this section which, in the opinion of a
nationally recognized firm of independent public
- 94 -
accountants expressed in a written certification delivered to the Trustee, are
in excess of the amount thereof that would then be required to be deposited to
effect a satisfaction and discharge under this Article Twelve.
Section 12.02. Deposited Money and U.S. Government Obligations to be held in
Trust; Other Miscellaneous Provisions.
Subject to Section 12.03 hereof, all money and non-callable
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
12.02, the "trustee") pursuant to Section 12.01 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 and
interest, but such money need not be segregated from other funds except to the
extent required by law.
Section 12.03. Repayment to the 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
or interest 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 of such Note 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 or 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.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA Section 318(c),
the imposed duties shall control.
Section 13.02. Notices.
(a) Any notice or communication by the Company or any
Guarantor, on the one hand, or the Trustee on the other hand, to the other is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), facsimile or overnight air
courier guaranteeing next day delivery, to the others' address:
- 95 -
If to the Company or any Guarantor:
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Chief Financial Officer
with copies to:
X.X. Childs Associates, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: 617-753-1101
Attention: Xxxxxx X. Xxx
and to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxx, Esq.
If to the Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx XX 00000
Facsimile: 000-000-0000
Attention: Corporate Trust Department
(b) The Company, the Guarantors or the Trustee, by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
(c) 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.
(d) 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 register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the
- 96 -
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.
(e) 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.
(f) 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 13.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to its rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(i) an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 13.05 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 satisfied;
and
(ii) to the extent required under Section 314 of
the Trust Indenture Act, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 13.05 hereof)
stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 13.05. Statements Required in Certificate or Opinion.
(a) 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 Section 314(a)(4)) shall comply with
the provisions of TIA Section 314(e) and shall include:
(i) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such
Person, he or she has made such examination or investigation
as is necessary to enable him to express an
- 97 -
informed opinion as to whether or not such covenant or
condition has been satisfied; and
(iv) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been
satisfied.
Section 13.06. 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 13.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Guarantees or the Registration Rights Agreement, as
applicable, or 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.
Section 13.08. Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES 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 13.09. Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or based
upon this Indenture or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the "Specified
Courts"), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of
any such court (a "Related Judgment"), as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that a Related
Proceeding has been brought in an inconvenient forum.
- 98 -
Section 13.10. 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 any of its Subsidiaries or
of any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
Section 13.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Guarantor in this Indenture shall
bind its successors, except as otherwise provided in Section 5.01.
Section 13.12. Severability.
In case any provision in this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.13. 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 13.14. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by the Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing, and may be given or obtained in connection
with a purchase of, or tender offer or exchange offer for, outstanding Notes;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "ACT" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section 13.14.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such witness,
notary or officer the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
- 99 -
(c) Notwithstanding anything to the contrary contained in
this Section 13.14, the principal amount and serial numbers of Notes held by any
Holder, and the date of holding the same, shall be proved by the register of the
Notes maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Company shall solicit from the Holders of the
Notes any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a resolution of its
Board, fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in connection
therewith or the date of the most recent list of Holders forwarded to the
Trustee prior to such solicitation pursuant to Section 2.06 hereof and not later
than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the then outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so itself with regard to all or any part of the principal amount of such Note or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
(g) For purposes of this Indenture, any action by the
Holders which may be taken in writing may be taken by electronic means or as
otherwise reasonably acceptable to the Trustee.
Section 13.15. Benefit of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Registrar and its successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
- 100 -
Section 13.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 13.17. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders or the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Agreement or
otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 101 -
SIGNATURES
NATIONAL NEPHROLOGY ASSOCIATES, INC., a
Delaware corporation
By:__________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
NNA OF OKLAHOMA, INC., a Nevada corporation
NNA OF GEORGIA, INC., a Delaware corporation
NNA OF ALABAMA, INC., an Alabama corporation
NNA MANAGEMENT COMPANY OF KENTUCKY, INC., a
Kentucky corporation
NATIONAL NEPHROLOGY ASSOCIATES MANAGEMENT
COMPANY OF TEXAS, INC., a Texas corporation
NNA OF NEVADA, INC., a Nevada corporation
NATIONAL NEPHROLOGY ASSOCIATES CREDIT
CORPORATION, a Tennessee corporation
NNA OF TOLEDO, INC., an Ohio corporation
NNA OF RHODE ISLAND, INC., a Rhode Island
corporation
NNA TRANSPORTATION SERVICES CORPORATION, a
Tennessee corporation
NNA PROPERTIES OF TENNESSEE, INC., a
Tennessee corporation
NNA PROPERTIES OF KENTUCKY, INC., a Kentucky
corporation
NNA PROPERTIES OF NEW JERSEY, INC., a New
Jersey corporation
NNA MANAGEMENT COMPANY OF LOUISIANA, INC., a
Louisiana corporation
RENEX CORP., a Florida corporation
RENEX MANAGEMENT SERVICES, INC., a Florida
corporation
DIALYSIS SERVICES OF ATLANTA, INC., a Georgia
corporation
RENEX DIALYSIS CLINIC OF PENN HILLS, INC., a
Pennsylvania corporation
- 102 -
RENEX DIALYSIS CLINIC OF SHALER, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF DOYLESTOWN, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF AMESBURY, INC., a
Massachusetts corporation
RENEX DIALYSIS CLINIC OF NORTH ANDOVER, INC.,
a Massachusetts corporation
RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC.,
a Georgia corporation
RENEX DIALYSIS CLINIC OF CREVE COUER, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF ST. LOUIS, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF BRIDGETON, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF UNION, INC., a
Missouri corporation
RENEX DIALYSIS HOMECARE OF GREATER ST. LOUIS,
INC., a Missouri corporation
RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF UNIVERSITY CITY,
INC., a Missouri corporation
RENEX DIALYSIS FACILITIES, INC., a
Mississippi corporation
RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC., a
New Jersey corporation
RENEX DIALYSIS CLINIC OF ORANGE, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF PHILADELPHIA, INC.,
a Pennsylvania corporation
RENEX DIALYSIS CLINIC OF PITTSBURGH, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF WOODBURY, INC., a
New Jersey corporation
RENEX DIALYSIS CLINIC OF TAMPA, INC., a
Florida corporation
DIALYSIS ASSOCIATES, LLC, a Tennessee limited
liability company
By: National Nephrology Associates, Inc., a
Delaware corporation, as sole member
DIALYSIS ASSOCIATES MEDICAL SUPPLY, LLC, a
Tennessee limited liability company
- 103 -
By: National Nephrology Associates, Inc., a
Delaware corporation, as sole member
NNA-SAINT BARNABAS, L.L.C., a New Jersey
limited liability company
By: Renex Dialysis Clinic of Woodbury Inc., a
Delaware corporation, as sole member
NNA SAINT BARNABAS - NEWARK, L.L.C., a New
Jersey limited liability company
By:, NNA - Saint Barnabas, LLC a New Jersey
limited liability company, as sole member
NNA OF OKLAHOMA, L.L.C., an Oklahoma limited
liability company
By: NNA of Oklahoma, Inc., a Nevada
corporation, as sole member
NNA OF LOUISIANA, LLC, a Louisiana limited
liability company
By: NNA Management Company of Louisiana,
Inc., as sole member
DOYLESTOWN ACUTE RENAL SERVICES, L.L.C., a
Pennsylvania limited liability company
By: Renex Dialysis Clinic of Doylestown,
Inc., a Pennsylvania corporation, as sole
member
NNA OF NEWARK, L.L.C., a New Jersey limited
liability company
By: Renex Dialysis Clinic of Woodbury, Inc.,
a New Jersey corporation, as sole member
NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS,
L.P., a Texas limited partnership
By: National Nephrology Associates Management
Company of Texas, Inc., a Texas
corporation, as its general partner
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive
Officer
- 104 -
XXXXX FARGO BANK MINNESOTA, N.A., as Trustee
By: ___________________________________
Name:
Title:
- 105 -
EXHIBIT A1
[Face of Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, 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 THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE 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 NOTE AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT THAT THE
NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES
A1-1
ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO 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 ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
A1-2
CUSIP [ ]
No. ______ $_____
NATIONAL NEPHROLOGY ASSOCIATES, INC.
9% Senior Subordinated Notes due 2011
National Nephrology Associates, Inc., a Delaware corporation
(the "Company", which term includes any successor under this Indenture
hereinafter referred to), for value received, promises to pay to CEDE & CO., or
its registered assigns, the principal sum of [Amount of Note] ($[ ]) on November
1, 2011.
Interest Payment Dates: May 1 and November 1 of each
year commencing May 1, 2004.
Regular Record Dates: April 15 and October 15 of each
year.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Issue Date: _____________
A1-3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NATIONAL NEPHROLOGY ASSOCIATES, INC.
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
A1-4
(Form of Trustee's Certificate of Authentication)
This is one of the 9% Senior Subordinated Notes due 2011 described in
the within-mentioned Indenture.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: _______________________________
Authorized Signatory
A1-5
[Reverse Side of Note]
NATIONAL NEPHROLOGY ASSOCIATES, INC.
9% Senior Subordinated Notes due 2011
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at 9% per annum from the date hereof until
maturity [and shall pay the Liquidated Damages]**, if any, payable pursuant to
the Registration Rights Agreement, dated October 22, 2003* referred to below].
The Company shall pay interest [and Liquidated Damages],** if any, semi-annually
in arrears on May 1 and November 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further that
the first Interest Payment Date shall be May 1, 2004. 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 Liquidated Damages]**
(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. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest [and Liquidated Damages],** if any), to the
Persons who are registered Holders of Notes at the close of business on the 15th
day of the month next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Company shall pay all Liquidated Damages, if any, on the date of
its choosing and in the amounts set forth in the Registration Rights Agreement.
The Notes shall be payable as to principal, premium [and Liquidated Damages],**
if any, and interest at the office or agency of the Company maintained for such
purpose in The City of New York, or, at the option of the Company, payment of
interest [and Liquidated Damages],** if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of and interest, premium [and Liquidated Damages],**
if any, on, all Global
------------------------------
* For Additional Notes, insert the date of the Registration Rights Agreement for
those Additional Notes.
** Not to be included for Exchange Notes.
A1-6
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Xxxxx Fargo Bank
Minnesota, N.A., the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of October 22, 2003 (the "Indenture") among the Company, the Guarantors
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. 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
Indenture pursuant to which this Note is issued provides that an unlimited
amount of Additional Notes may be issued thereunder, subject to compliance with
the covenants therein.
5. Optional Redemption. (a) At any time on or prior to
November 1, 2007, the Company may, on any one or more occasions, redeem all or a
portion of the Notes, on not less than 30 nor more than 60 days' prior notice,
in amounts of $1,000 or an integral multiple thereof, at a price equal to the
greater of:
(i) 100% of the aggregate principal amount of
the Notes to be redeemed, together with accrued and unpaid
interest, if any, to the date of redemption, and
(ii) as determined by an Independent Investment
Banker, the sum of the present values of 104.500% of the
principal of the Notes being redeemed plus scheduled payments
of interest (not including any portion of such payments of
interest accrued as of the date of redemption) from the date
of redemption to November 1, 2007 discounted for each such
amount to the redemption date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 50 basis points, together with
accrued and unpaid interest, if any, to the date of
redemption.
(b) After November 1, 2007, the Notes will be redeemable,
at the option of the Company, as a whole or from time to time in part, on not
less than 30 nor more than 60 days' prior notice to the Holders at the following
redemption prices (expressed as percentages of principal amount), together with
accrued interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on an
interest payment date), if redeemed during the 12-month period beginning on
November 1 of the years indicated below.
A1-7
YEAR REDEMPTION PRICE
---- ----------------
2007 104.500%
2008 102.250%
2009 and thereafter 100.000%
(c) Notwithstanding the foregoing, at any time or from
time to time prior to November 1, 2006, the Company may redeem on one or more
occasions, up to 35% of the aggregate principal amount of the Notes issued
hereunder with the net proceeds of one or more Public Equity Offerings at a
redemption price equal to 109% of the principal amount thereof, plus accrued
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an interest
payment date); provided that, immediately after giving effect to such
redemption, at least 65% of the aggregate principal amount of the Notes issued
under this Indenture remains outstanding; provided further that such redemptions
shall occur within 90 days of the date of the closing of each such Public Equity
Offering.
6. Mandatory Redemption. Except as set forth in paragraph 7
below, the Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. Repurchase at Option of Holders. (a) Upon the occurrence of
a Change of Control, each Holder of Notes will have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes pursuant to the procedures set forth in the
Indenture at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest [and Liquidated Damages]**
thereon, if any, to the date of purchase.
(b) Upon Asset Sales, the Company may be obligated to make
offers, in accordance with the procedures set forth in the Indenture, to
purchase Notes with a portion of the Net Cash Proceeds of such Asset Sales at a
redemption price of 100% of the principal amount thereof plus accrued and unpaid
interest [and Liquidated Damages],** if any, to the date of purchase.
8. Selection and Notice of Redemption. If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the
Trustee shall select the Notes to be redeemed or purchased among the Holders of
the Notes not more than 90 days prior to the redemption date, or otherwise 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 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.
-----------------------------------
** Not to be included for Exchange Notes.
A1-8
Notices of redemption may not be conditional. If any Note is to be redeemed in
part only, the notice of redemption that relates to that Note will state the
portion of the principal amount thereof to be redeemed. A new Note in principal
amount equal to the unredeemed portion of the original Note will be issued in
the name of the Holder thereof upon cancellation of the original Note. Notes
called for redemption become due on the date fixed for redemption. On and after
the redemption date, interest [and Liquidated Damages],** if any, cease to
accrue on Notes or portions of them called for redemption.
9. 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 Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company is not required
to transfer or exchange any Note selected for redemption. Also, the Company is
not required to transfer or exchange any Note for a period of 15 days before a
selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note
will be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. The Indenture or the
Notes may be amended or supplemented only as provided in the Indenture.
12. Defaults and Remedies. In the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company or any Restricted Subsidiary that is a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further action
or notice. If any other 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 immediately by notice in writing
to the Company specifying the respective Event of Default. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest [or Liquidated Damages],** if any) 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 Liquidated Damages],** if any,
on, or the principal of, the Notes.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, shall have any
---------------------------------
** Not to be included for Exchange Notes.
A1-9
liability for any obligations of the Company or the Guarantors under the Notes,
the Indenture, the Guarantees or the Registration Rights Agreement, as
applicable, or 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.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Additional Rights of Holders of Restricted Global Notes
and Restricted Definitive Notes. [In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of October 22, 2003,* between the Company, the Guarantors and
the parties named on the signature pages thereof.]**
17. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
--------------------------------
* For Additional Notes, insert the date of the Registration Rights Agreement for
those Additional Notes
** Not to be included for Exchange Notes.
A1-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _______________________________
_________________________________________________________
(Insert assignee's legal name)
________________________________________________________________________(Insert
assignee's soc. sec. or tax I.D. no.)
____________________________________________________________________________
____________________________________________________________________________
________________________________________________________________________(Print
or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _____________
Your Signature:_______________________________
(Sign exactly as your name
appears on the face of this
Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate
box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased:
$ __________________
Date:_____________
Your Signature:__________________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:__________________________
Signature Guarantee*:______
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of Decrease Amount of Increase in Maturity of this
in Principal Amount Principal Amount at Global Following
at Maturity of this Maturity of this such Decrease (or
Date of Exchange Global Note Global Note Increase)
---------------- ------------------- --------------------- -----------------
A1-13
EXHIBIT A2
[Face of Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, 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 THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
A2-1
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT THAT THE
NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON
ARE ELIGIBLE FOR RESALE PURSUANT TO 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 ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
A2-2
CUSIP [ ]
No. ______ $_____
NATIONAL NEPHROLOGY ASSOCIATES, INC.
9% Senior Subordinated Notes due 2011
National Nephrology Associates, Inc., a Delaware corporation
(the "Company", which term includes any successor under this Indenture
hereinafter referred to), for value received, promises to pay to CEDE & CO., or
its registered assigns, the principal sum of [Amount of Note] ($[ ]) on November
1, 2011.
Interest Payment Dates: May 1 and November 1 of each year
commencing May, 2004.
Regular Record Dates: April 15 and October 15 of each
year.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Issue Date: _____________
A2-3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NATIONAL NEPHROLOGY ASSOCIATES, INC.
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
A2-4
(Form of Trustee's Certificate of Authentication)
This is one of the 9% Senior Subordinated Notes due 2011 described in
the within-mentioned Indenture.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: _________________________________
Authorized Signatory
A2-5
[Reverse Side of Note]
NATIONAL NEPHROLOGY ASSOCIATES, INC.
9% Senior Subordinated Notes due 2011
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at 9% per annum from the date hereof until
maturity [and shall pay the Liquidated Damages],** if any, payable pursuant to
the Registration Rights Agreement, dated October 22, 2003* referred to below].
The Company shall pay interest [and Liquidated Damages],** if any, semi-annually
in arrears on May 1 and November 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further that
the first Interest Payment Date shall be May 1, 2004. 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 Liquidated Damages]**
(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. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest [and Liquidated Damages],** if any), to the
Persons who are registered Holders of Notes at the close of business on the 15th
day of the month next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Company shall pay all Liquidated Damages, if any, on the date of
its choosing and in the amounts set forth in the Registration Rights Agreement.
The Notes shall be payable as to principal, premium [and Liquidated Damages],**
if any, and interest at the office or agency of the Company maintained for such
purpose in The City of New York, or, at the option of the Company, payment of
interest [and Liquidated Damages],** if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of and interest, premium [and Liquidated Damages]**,
if any, on, all Global
---------------------------
* For Additional Notes, insert the date of the Registration Rights Agreement for
those Additional Notes
** Not to be included for Exchange Notes.
A2-6
Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Xxxxx Fargo Bank
Minnesota, N.A., the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of October 22, 2003 (the "Indenture") among the Company, the Guarantors
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. 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
Indenture pursuant to which this Note is issued provides that an unlimited
amount of Additional Notes may be issued thereunder, subject to compliance with
the covenants therein.
5. Optional Redemption. (a) At any time on or prior to
November 1, 2007, the Company may, on any one or more occasions, redeem all or a
portion of the Notes, on not less than 30 nor more than 60 days' prior notice,
in amounts of $1,000 or an integral multiple thereof, at a price equal to the
greater of:
(i) 100% of the aggregate principal amount of
the Notes to be redeemed, together with accrued and unpaid
interest, if any, to the date of redemption, and
(ii) as determined by an Independent Investment
Banker, the sum of the present values of 104.500% of the
principal of the Notes being redeemed plus scheduled payments
of interest (not including any portion of such payments of
interest accrued as of the date of redemption) from the date
of redemption to November 1, 2007 discounted for each such
amount to the redemption date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 50 basis points, together with
accrued and unpaid interest, if any, to the date of
redemption.
(d) After November 1, 2007, the Notes will be redeemable,
at the option of the Company, as a whole or from time to time in part, on not
less than 30 nor more than 60 days' prior notice to the Holders at the following
redemption prices (expressed as percentages of principal amount), together with
accrued interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on an
interest payment date), if redeemed during the 12-month period beginning on
November 1 of the years indicated below.
A2-7
YEAR REDEMPTION PRICE
---- ----------------
2007 104.500%
2008 102.250%
2009 and thereafter 100.000%
(e) Notwithstanding the foregoing, at any time or from
time to time prior to November 1, 2006, the Company may redeem on one or more
occasions, up to 35% of the aggregate principal amount of the Notes issued
hereunder with the net proceeds of one or more Public Equity Offerings at a
redemption price equal to 109% of the principal amount thereof, plus accrued
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an interest
payment date); provided that, immediately after giving effect to such
redemption, at least 65% of the aggregate principal amount of the Notes issued
under this Indenture remains outstanding; provided further that such redemptions
shall occur within 90 days of the date of the closing of each such Public Equity
Offering.
6. Mandatory Redemption. Except as set forth in paragraph 7
below, the Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. Repurchase at Option of Holders. (a) Upon the occurrence of
a Change of Control, each Holder of Notes will have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes pursuant to the procedures set forth in the
Indenture at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest [and Liquidated Damages]**
thereon, if any, to the date of purchase.
(b) Upon Asset Sales, the Company may be obligated to
make offers, in accordance with the procedures set forth in the Indenture, to
purchase Notes with a portion of the Net Cash Proceeds of such Asset Sales at a
redemption price of 100% of the principal amount thereof plus accrued and unpaid
interest [and Liquidated Damages],** if any, to the date of purchase.
8. Selection and Notice of Redemption. If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the
Trustee shall select the Notes to be redeemed or purchased among the Holders of
the Notes not more than 90 days prior to the redemption date, or otherwise 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 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.
---------------------------
** Not to be included for Exchange Notes.
A2-8
Notices of redemption may not be conditional. If any Note is to be redeemed in
part only, the notice of redemption that relates to that Note will state the
portion of the principal amount thereof to be redeemed. A new Note in principal
amount equal to the unredeemed portion of the original Note will be issued in
the name of the Holder thereof upon cancellation of the original Note. Notes
called for redemption become due on the date fixed for redemption. On and after
the redemption date, interest [and Liquidated Damages],** if any, cease to
accrue on Notes or portions of them called for redemption.
9. 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 Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company is not required
to transfer or exchange any Note selected for redemption. Also, the Company is
not required to transfer or exchange any Note for a period of 15 days before a
selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note
will be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. The Indenture or the
Notes may be amended or supplemented only as provided in the Indenture.
12. Defaults and Remedies. In the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company or any Restricted Subsidiary that is a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further action
or notice. If any other 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 immediately by notice in writing
to the Company specifying the respective Event of Default. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest [or Liquidated Damages],** if any) 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 Liquidated Damages],** if any,
on, or the principal of, the Notes.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, shall have any
---------------------------
** Not to be included for Exchange Notes.
A2-9
liability for any obligations of the Company or the Guarantors under the Notes,
the Indenture, the Guarantees or the Registration Rights Agreement, as
applicable, or 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.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Additional Rights of Holders of Restricted Global Notes
and Restricted Definitive Notes. [In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of October 22, 2003,* between the Company, the Guarantors and
the parties named on the signature pages thereof.]**
17. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
---------------------------
* For Additional Notes, insert the date of the Registration Rights Agreement for
those Additional Notes
** Not to be included for Exchange Notes.
A2-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _______________________________
_________________________________________________________
(Insert assignee's legal name)
________________________________________________________________________(Insert
assignee's soc. sec. or tax I.D. no.)
____________________________________________________________________________
____________________________________________________________________________
________________________________________________________________________(Print
or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _____________
Your Signature:_______________________________
(Sign exactly as your name
appears on the face of this
Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate
box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased:
$ _________________
Date:_____________
Your Signature:_______________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:_________________________
Signature Guarantee*:______
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of Decrease Amount of Increase in Maturity of this
in Principal Amount Principal Amount at Global Following
at Maturity of this Maturity of this such Decrease (or
Date of Exchange Global Note Global Note Increase)
---------------- ------------------- --------------------- -----------------
A2-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxx Fargo Bank Minnesota, N.A.,
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Facsimile (000) 000-0000
Attention: Corporate Trust Department
Re: 9% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of October
22, 2003 (the "Indenture"), among National Nephrology Associates, Inc., a
Delaware corporation (the "Company"), the Guarantors, and Xxxxx Fargo Bank
Minnesota, N.A., 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 at maturity 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.
B-1
2. Check if Transferee will take delivery of a
beneficial interest in the Regulation S Temporary Global Note, the Regulation S
Permanent 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 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 Restricted
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 Permanent Global Note, the Regulation S Temporary 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):
(f) such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(g) such Transfer is being effected to the Company or a
subsidiary thereof;
or
(h) 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
(i) 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
B-2
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) 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.
4. Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(j) 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.
(k) 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.
(l) 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 Company.
B-3
____________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated:______________
B-4
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:
(ii) 144A Global Note (CUSIP __________); or
(iii) Regulation S Global Note (CUSIP __________);
or
(iv) 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:
(v) 144A Global Note (CUSIP __________); or
(vi) Regulation S Global Note (CUSIP __________);
or
(vii) IAI Global Note (CUSIP________); or
(viii) 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-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Xxxxx Fargo Bank Minnesota, N.A.,
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Facsimile (000) 000-0000
Attention: Corporate Trust Department
Re: 9% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of October
22, 2003 (the "Indenture"), among National Nephrology Associates, Inc., a
Delaware corporation (the "Company"), the Guarantors, and Xxxxx Fargo Bank
Minnesota, N.A., 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 at maturity 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
(m) 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 at maturity, 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.
C-1
(n) 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.
(o) 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 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.
(p) 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
(q) 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 at maturity, 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.
(r) 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
C-2
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 at maturity, 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.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
___________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated:______________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[ ]
Re: 9% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of October
22, 2003 (the "Indenture"), among National Nephrology Associates, Inc., a
Delaware corporation (the "Company"), the Guarantors, and Xxxxx Fargo Bank
Minnesota, N.A., 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 at maturity of:
(s) beneficial interest in a Global Note, or
(t) 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 Company 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
Company a signed letter substantially in the form of this letter and an Opinion
of Counsel in form reasonably acceptable to the Company 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 Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) 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 Company 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:
Dated:______________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture) has absolutely, jointly and severally,
fully and unconditionally and irrevocably guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture dated as of October
22, 2003 (the "Indenture") among National Nephrology Associates, Inc. (the
"Company"), the Guarantors (as defined in the Indenture), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), (a) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise, the
due and punctual payment of interest on overdue principal and premium, and, to
the extent permitted by law, interest, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article Eleven of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. Each Holder of a
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee as
attorney-in-fact of such Holder for such purpose; provided that the Indebtedness
evidenced by this Guarantee shall cease to be so subordinated and subject in
right of payment upon any defeasance of this Note in accordance with the
provisions of the Indenture. This Guarantee shall be governed by and construed
in accordance with the laws of the State of New York.
[Name of Guarantor]
By: ____________________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated
as of _____________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of National Nephrology Associates, Inc. (or its permitted successor),
a Delaware corporation (the "Company"), the Guarantors (as defined in the
Indenture referred to herein) and Xxxxx Fargo Bank Minnesota, N.A., as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of October 22, 2003
providing for the issuance of 9% Senior Subordinated Notes due 2011 (the
"Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the
"Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(u) Along with all other Guarantors, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes
will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or
F-1
thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, the
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(v) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance that
might otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(w) The following are hereby waived: diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever.
(x) This Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
(y) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by
either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
(z) The Guaranteeing Subsidiary shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(aa) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article
Six of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such obligations
as provided in Article Six of the Indenture, such obligations (whether
or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee.
(bb) Pursuant to Section 10.02 of the Indenture, after
giving effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections
F-2
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
Article Ten of the Indenture shall result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent transfer or conveyance.
3. Subordination. The Obligations of the Guaranteeing
Subsidiary under its Guarantee pursuant to this Supplemental Indenture shall be
junior and subordinated to the Senior Indebtedness of the Guaranteeing
Subsidiary on the same basis as the Notes are junior and subordinated to the
Senior Indebtedness of the Company. For the purposes of the foregoing sentence,
the Trustee and the Holders shall have the right to receive and/or retain
payments by the Guaranteeing Subsidiary only at such time as they may receive
and/or retain payments in respect of the Notes pursuant to the Indenture,
including Article Ten thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc., on Certain
Terms.
Except as otherwise provided in Section 11.05 of the
Indenture, a Guarantor may not consolidate with or merge with or into any other
Person or convey, sell, assign, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any other Person (other
than the Company or another Guarantor) unless:
(cc) subject to the provisions of the following paragraph,
the Person formed by or surviving such consolidation or merger (if other than
such Guarantor) or to which such properties and assets are transferred assumes
all of the obligations of such Guarantor under this Indenture and its Guarantee,
pursuant to a supplemental indenture in form and substance satisfactory to the
Trustee;
(dd) immediately after giving effect to such transaction,
no Default or Event of Default has occurred and is continuing; and
(ee) the Guarantor delivers, or causes 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 complies with the requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and reasonably satisfactory in form to the
Trustee, of the Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be
performed by a Guarantor, such successor Person shall succeed to and be
F-3
substituted for a Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as though all of
such Guarantees had been issued at the date of the execution hereof.
6. Releases.
(a) A Guarantor will be deemed automatically and
unconditionally released and discharged from all of its obligations under its
Guarantee without any further action on the part of the Trustee or any Holder of
the Notes upon a sale or other disposition to a Person not an Affiliate of the
Company of all of the Capital Stock of, or all or substantially all of the
assets of, such Guarantor, by way of merger, consolidation or otherwise, which
transaction is carried out in accordance with Section 4.10 hereof; provided that
any such termination shall occur (x) only to the extent that all obligations of
such Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure any Indebtedness of the Company
shall also terminate upon such sale, disposition or release and (y) only if the
Trustee is furnished with written notice of such release together with an
Officers' Certificate from such Guarantor to the effect that all of the
conditions to release in this Section 6 have been satisfied.
(b) Any Guarantor not released from its obligations under
its Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under the
Indenture as provided in Article Eleven of the Indenture.
7. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
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.
9. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
F-4
11. Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
F-5
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: _______________, ____
[Guaranteeing Subsidiary]
By: ______________________________________
Name:
Title:
NATIONAL NEPHROLOGY ASSOCIATES, INC.
By: ______________________________________
Name:
Title:
[Guarantors]
By: ______________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A., AS
TRUSTEE
By: ______________________________________
Name:
Title:
