Exhibit 4.1
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PSYCHIATRIC SOLUTIONS, INC.
$220,000,000
7.75% SENIOR SUBORDINATED NOTES DUE 2015
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INDENTURE
Dated as of July 6, 2005
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Wachovia Bank, National Association,
as Trustee
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This INDENTURE, dated as of July 6, 2005, is by and among
Psychiatric Solutions, Inc., a Delaware corporation, each Guarantor listed on
the signature pages hereto, and Wachovia Bank, National Association, as trustee
(the "Trustee").
The Company, each Guarantor and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 7.75% Senior Subordinated Notes due 2015 (the "Notes") issued under this
Indenture:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"144A Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Interest" has the meaning set forth in a Registration
Rights Agreement relating to amounts to be paid in the event the Company fails
to satisfy certain conditions set forth herein. For all purposes of this
Indenture, the term "interest" shall include Additional Interest, if any, with
respect to the Notes.
"Additional Notes" means any Notes (other than Initial Notes,
Exchange Notes and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof)
issued under this Indenture in accordance with Sections 2.02, 2.15 and 4.09
hereof, as part of the same series as the Initial Notes or as an additional
series.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means the sale, lease, transfer, conveyance or other
disposition of any assets or rights, other than sales, leases, transfers,
conveyances or other dispositions of inventory in the ordinary course of
business consistent with past practices; provided that the sale, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by Section 4.17
hereof and/or Section 5.01 hereof and not by Section 4.12 hereof.
Notwithstanding the preceding, the following items will not be
deemed to be Asset Sales:
(a) any single transaction or series of related transactions that
involves assets having a fair market value of less than $5.0 million;
(b) a sale, lease, transfer, conveyance or other disposition of
assets between or among the Company and its Restricted Subsidiaries;
(c) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary;
(d) a sale, lease, transfer, conveyance or other disposition
effected in compliance with the provisions described in Article 5 hereof;
(e) a Restricted Payment or Permitted Investment that is permitted
by Section 4.10 hereof;
(f) a transfer of property or assets that are obsolete, damaged or
worn out equipment and that are no longer useful in the conduct of the
Company's or its Subsidiaries' business and that is disposed of in the
ordinary course of business; and
(g) a Permitted Asset Swap.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors, or the law of any other jurisdiction
relating to bankruptcy, insolvency, winding up, liquidation, reorganization or
relief of debtors.
"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" will 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" have a
corresponding meaning.
"Board of Directors" means:
(a) with respect to a corporation, the board of directors of the
corporation;
(b) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and
(c) with respect to any other Person, the board or committee of such
Person serving a similar function.
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"Board Resolution" of a Person means a copy of a resolution
certified by the secretary or an assistant secretary (or individual performing
comparable duties) of the applicable Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(d) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the
United States government (provided that the full faith and credit of the
United States is pledged in support of those securities) having maturities
of not more than six months from the date of acquisition;
(c) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the Credit Agreement or
with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of "B" or better;
(d) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (c) above;
(e) commercial paper rated at least A-1 by Standard & Poor's Rating
Services, or at least P-1 by Xxxxx'x Investors Service, Inc., and in each
case maturing within six months after the date of acquisition; and
(f) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a) through
(e) of this definition.
"Change of Control" means the occurrence of any of the following:
(a) 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 Restricted Subsidiaries, taken
as a whole, to any "person" (as
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that term is used in Section 13(d)(3) of the Exchange Act);
(b) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(c) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined in clause (a) above), becomes the Beneficial Owner,
directly or indirectly, of more than 30% of the Voting Stock of the
Company, measured by voting power rather than number of shares;
(d) the consummation by the Company of any "going private"
transaction that would constitute a "Rule 13e-3 transaction" as defined in
the Exchange Act;
(e) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(f) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is converted
into or exchanged for cash, securities or other property, other than any
such transaction where the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Company" means Psychiatric Solutions, Inc., and any successor
thereto.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus:
(a) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Subsidiaries in connection with an
Asset Sale, to the extent such losses were deducted in computing such
Consolidated Net Income; plus
(b) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net
Income; plus
(c) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts
and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments made
or received pursuant to Hedging Obligations), to the extent that any such
expense was deducted in computing such Consolidated Net Income; plus
(d) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (excluding
any such non-cash expense to the extent that it represents an accrual of
or reserve for
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expenses to be paid in cash in any future period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
(e) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business,
in each case, on a consolidated basis and determined in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(a) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends
or distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(b) the Net Income of any Restricted Subsidiary will be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders;
(c) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition will be
excluded; and
(d) the cumulative effect of a change in accounting principles will
be excluded.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting, and after deducting therefrom consolidated current
liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(a) the excess of cost over fair market value of assets or
businesses acquired;
(b) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the Company
immediately preceding the date of issuance of the notes as a result of a
change in the method of valuation in accordance with GAAP;
(c) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization or developmental expenses and
other intangible items;
(d) minority interests in consolidated subsidiaries held by Persons
other than the Company or any Restricted Subsidiary;
(e) treasury stock;
(f) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities; and
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(g) Investments in and assets of Unrestricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(a) was a member of such Board of Directors on the date of this
Indenture; or
(b) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"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 Second Amended and Restated Credit
Agreement, dated as of the date hereof, among the Company, the Guarantors party
thereto, Citicorp North America, Inc., as term loan facility administrative
agent, Bank of America, N.A., as revolving credit facility administrative agent,
collateral agent and swing line lender, Citigroup Global Markets Inc. and Banc
of America Securities LLC, as co-syndication agents, Citigroup Global Markets
Inc., as documentation agent and as sole lead arranger and sole book manager,
and the lenders from time to time party thereto, providing for up to $150.0
million of revolving credit borrowings and $325.0 million of term borrowings,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
restated, modified, renewed, refunded, replaced or refinanced (in whole or in
part) from time to time, whether or not with the same lenders or agent.
"Credit Facilities" means, one or more debt facilities or agreements
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case with banks or other institutional lenders or investors
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced (including any agreement to extend the maturity thereof
and adding additional borrowers or guarantors) in whole or in part from time to
time under the same or any other agent, lender or group of lenders and including
increasing the amount of available borrowings thereunder; provided that such
increase is permitted by Section 4.09 hereof.
"Custodian" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03(c) hereof
as Custodian with respect to the Notes, and any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 or 2.10 hereof,
in substantially the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03(b) hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Designated Senior Debt" means (a) any Indebtedness outstanding
under the Credit Agreement and (b) any other Senior Debt permitted hereunder the
principal amount of which is $25.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
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"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a Change of
Control or an Asset Sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the Section 4.10 hereof.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state or territory of
the United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any private or public sale of common stock
of the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear systems, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means notes issued in exchange for the Initial
Notes or any Additional Notes pursuant to a Registration Rights Agreement.
"Exchange Offer" has the meaning set forth in a Registration Rights
Agreement relating to an exchange of Notes registered under the Securities Act
for Notes not so registered.
"Exchange Offer Registration Statement" has the meaning set forth in
a Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness existing on the Issue
Date (other than Indebtedness under this Indenture and the Credit Agreement),
including the Existing Senior Subordinated Notes and any existing HUD
Financings.
"Existing Senior Subordinated Notes" means the $38,680,000 aggregate
principal amount of the Company's 10-5/8% Senior Subordinated Notes due 2013.
"Financing Transactions" means the Financing Transactions as
described in the Offering Memorandum.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(a) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations; plus
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(b) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(c) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or one of its Restricted Subsidiaries,
whether or not such Guarantee or Lien is called upon; plus
(d) the product of (i) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such Person or
any of its Restricted Subsidiaries, other than dividends on Equity
Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary, times
(ii) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person and its Restricted Subsidiaries for such period. In the event that the
specified Person or any of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(a) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during
the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect
(calculated in accordance with Regulation S-X) as if they had occurred on
the first day of the four-quarter reference period and Consolidated Cash
Flow for such reference period will be calculated without giving effect to
clause (c) of the proviso set forth in the definition of Consolidated Net
Income;
(b) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP (other than the
treatment of the termination and expiration of management contracts which
shall be governed by Accounting Principles Board Opinion No. 2 as in
effect before the adoption of Financial Accounting Standards No. 144), and
operations or businesses disposed of prior to the Calculation Date, will
be excluded; and
(c) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP (other than the treatment of the
termination and expiration of management contracts which shall be governed
by Accounting Principles Board Opinion No. 2 as in effect before the
adoption of Financial Accounting Standards No. 144), and operations or
businesses disposed of prior to the Calculation Date, will be excluded,
but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
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"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Note" means any global Note in the form of Exhibit A hereto
issued in accordance with Article 2 hereof.
"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, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantors" means each of:
(a) the Company's Domestic Subsidiaries (other than the HUD
Financing Subsidiaries, PSI Surety, Inc. and certain immaterial
Subsidiaries in which neither PSI nor any Restricted Subsidiary has made
an Investment in excess of $0.1 million); and
(b) any other Subsidiary that executes a Subsidiary Guarantee in
accordance with the provisions of this Indenture;
and their respective successors and assigns.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(a) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(b) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Holder" means a Person in whose name a Note is registered in the
Security Register.
"HUD Financing" means Indebtedness of HUD Financing Subsidiaries
that is insured by the Federal Housing Administration, an organizational unit of
the United States Department of Housing and Urban Development.
"HUD Financing Subsidiaries" means any Domestic Subsidiary formed
solely for the purpose of holding assets pledged as security in connection with
any HUD Financing, including Xxxxx Xxxx Real Estate, LLC, PSI Cedar Springs
Hospital Real Estate, Inc., Psychiatric Solutions of Oklahoma Real Estate, Inc.,
Neuro Rehab Real Estate, L.P., Texas Xxxxxx Xxxxx Hospital Real Estate, L.P.,
Texas Oaks Psychiatric Hospital Real Estate, L.P., Texas San Marcos Treatment
Center Real Estate, L.P., Cypress Creek Real Estate, L.P., West Oaks Real
Estate, L.P. and Riveredge Real Estate, Inc.; provided that the designation of a
Domestic Subsidiary as a HUD Financing Subsidiary shall be evidenced by an
Officers' Certificate stating that such Domestic Subsidiary shall be designated
as a HUD Financing Subsidiary and certifying that the sole purpose of such HUD
Financing Subsidiary shall be to hold assets pledged as security in connection
with HUD Financing and that the incurrence of the HUD Financing complies with
the provisions of Section 4.09 hereof.
"IAI Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold to Institutional Accredited Investors, if any, to the extent required by
the Applicable Procedures.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
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(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations;
(e) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable; or
(f) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(i) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount; and
(ii) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due,
in the case of any other Indebtedness.
"Indenture" means this instrument, as originally executed or as it
may from time to time be supplemented or amended in accordance with Article 9
hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means $220,000,000 aggregate principal amount of
Notes issued under this Indenture on the Issue Date.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Dates" shall have the meaning set forth in
paragraph 1 of any Note in the form of Exhibit A hereto issued in accordance
with Article 2 hereof.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding commission, travel and similar advances, fees
and compensation paid to officers, directors and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company will be deemed
to have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of
Section 4.10. The acquisition by the Company or any Subsidiary of the Company of
a Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such
10
Subsidiary in such third Person in an amount equal to the fair market value of
the Investment held by the acquired Person in such third Person in an amount
determined as provided in the final paragraph of Section 4.10.
"Issue Date" means July 6, 2005.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the Corporate Trust
Office of the Trustee is located or any other place of payment on the Notes are
authorized by law, regulation or executive order to remain closed.
"Letter of Transmittal" means the letter of transmittal, or its
electronic equivalent in accordance with the Applicable Procedures, to be
prepared by the Company and sent to all Holders of the Initial Notes or any
Additional Notes for use by such Holders in connection with an Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(a) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with: (i) any
Asset Sale; or (ii) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(b) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than
Senior Debt, secured by a Lien on the asset or assets that were the subject of
such Asset Sale, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-recourse Debt" means Indebtedness:
(a) as to which neither the Company nor any of its Restricted
Subsidiaries (i) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(ii) is directly or indirectly liable as a guarantor or otherwise, or
(iii) constitutes the lender;
(b) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time of both
any holder of any other Indebtedness (other than the Notes) of the Company
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and
11
(c) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum relating to the
Initial Notes dated June 30, 2005.
"Officer" means the Chief Executive Officer, the President, the
Chief Financial Officer, any Executive Vice President or the Treasurer of the
Company.
"Officers' Certificate" means a certificate, in form and substance
reasonably satisfactory to the Trustee, signed by two Officers of the Company,
at least one of whom shall be the principal executive officer or principal
financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and substance
reasonably satisfactory to the Trustee, from legal counsel who is acceptable to
the Trustee and which meets the requirements of Section 13.05 hereof. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to DTC, shall include Euroclear and
Clearstream.
"Permitted Asset Swap" means sales, transfers or other dispositions
of assets, including all of the outstanding Capital Stock of a Restricted
Subsidiary, for consideration at least equal to the fair market value of the
assets sold or disposed of, but only if the consideration received consists of
Capital Stock of a Person that becomes a Restricted Subsidiary engaged in, or
property or assets (other than cash, except to the extent used as a bona fide
means of equalizing the value of the property or assets involved in the swap
transaction) of a nature or type or that are used in, a business having property
or assets of a nature or type, or engaged in a business similar or related to
the nature or type of the property and assets of, or business of, the Company
and the Restricted Subsidiaries existing on the date of such sale or other
disposition.
"Permitted Business" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the Issue Date and the businesses
reasonably related thereto, including the ownership, operation and/or management
of a hospital, outpatient clinic or other facility or business that is used or
useful in or related to the provision of health care services in connection with
the ownership, operation and/or management of such hospital or outpatient clinic
or ancillary to the provision of health care services or information or the
investment in or management, lease or operation of a hospital or outpatient
clinic.
"Permitted Investments" means:
(a) any Investment in the Company or a Restricted Subsidiary;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary in a
Person, if as a result of such Investment:
(i) such Person becomes a Restricted Subsidiary; or
(ii) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to,
or is liquidated into, the Company or a Subsidiary;
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset
12
Sale that was made pursuant to and in compliance with Section 4.12 hereof;
(e) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(f) any Investments received in compromise of obligations of such
persons incurred in the ordinary course of trade creditors or customers
that were incurred in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of any trade creditor or customer;
(g) Hedging Obligations;
(h) Investments the payment for which is Capital Stock (other than
Disqualified Stock) of the Company;
(i) Physician Support Obligations;
(j) Investments in prepaid expenses, negotiable instruments held for
collection, utility and workers compensation, performance and similar
deposits made in the ordinary course of business;
(k) loans and advances to non-executive officers and employees of
the Company or any Restricted Subsidiary in the ordinary course of
business in accordance with the past practices of the Company or any
Restricted Subsidiary in an aggregate amount for all such loans and
advances not to exceed $1.0 million at any time outstanding;
(l) Investments in any Person to the extent such Investment
represents the non-cash portion of the consideration received in
connection with an Asset Sale consummated in compliance with Section 4.12
hereof;
(m) Investments existing on the date of this Indenture; and
(n) other Investments in any Person having an aggregate fair market
value (measured on the date each such investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (n) that are at the
time outstanding, not to exceed $30.0 million.
"Permitted Junior Securities" means:
(a) Equity Interests in the Company or any Guarantor; or
(b) debt securities that are subordinated to all Senior Debt and any
debt securities issued in exchange for Senior Debt to substantially the
same extent as, or to a greater extent than, the Notes and the Subsidiary
Guarantees are subordinated to Senior Debt under this Indenture.
"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
(other than intercompany Indebtedness); provided, however, that:
(a) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith);
(b) in the case of Indebtedness other than Senior Debt, such
Permitted Refinancing
13
Indebtedness has a final maturity date the same as or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
(c) if Subordinated Obligations are being extended, refinanced,
renewed, replaced, defeased or refunded, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date
of, and is subordinated in right of payment to, the Notes on terms at
least as favorable to the holders of Notes as those contained in the
documentation governing the Subordinated Obligations being extended,
refinanced, renewed, replaced, defeased or refunded; and
(d) such Indebtedness is incurred either by the Company or by the
Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Physician Support Obligation" means a loan to or on behalf of, or a
guarantee of indebtedness of a Qualified Physician made or given by the Company
or any of its Subsidiaries, (a) in the ordinary course of its business, and (b)
pursuant to a written agreement having a period not to exceed five years;
provided, however, that any such guarantee of Indebtedness of a Qualified
Physician shall be expressly subordinated in right of payment to the Notes or
the Subsidiary Guarantees, as the case may be.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same Debt as that evidenced by such
particular Note; and any Note authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
Debt as the lost, destroyed or stolen Note.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except
as otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Physicians" means one or more physicians or health care
professionals providing service to patients in a health care facility owned,
operated or managed by the Company or any of its Restricted Subsidiaries.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, the Guarantors and
Citigroup Global Markets Inc. on behalf of the Initial Purchasers named therein
as such agreement may be amended, modified or supplemented from time to time
and, with respect to any Additional Notes, one or more registration rights
agreements between the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes, or exchange such Additional Notes for registered
notes, under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the applicable date specified as a "Record Date" on the face
of any Note in the form of Exhibit A hereto issued in accordance with Article 2
hereof.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 904 of Regulation S.
14
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of Senior
Debt.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Office of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive Notes
bearing the Private Placement Legend.
"Restricted Global Notes" means 144A Global Notes, IAI Global Notes
and Regulation S Global Notes.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not a Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw
Hill, Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(a) all Indebtedness of the Company or any Guarantor outstanding
under Credit Facilities and all Hedging Obligations with respect thereto;
(b) all Indebtedness of the Company or any Guarantor outstanding
under HUD Financing;
(c) any other Indebtedness of the Company or any Guarantor permitted
to be incurred under the terms of this Indenture, unless the instrument
under which such Indebtedness is incurred expressly provides that it is on
a parity with or subordinated in right of payment to the Notes or any
Subsidiary Guarantee; and
(d) all Obligations with respect to the items listed in the
preceding clauses (a), (b) and (c).
Notwithstanding anything to the contrary in the preceding, Senior
Debt will not include:
(i) any liability for federal, state, local or other taxes
owed or owing by the Company;
(ii) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates;
(iii) the Existing Senior Subordinated Notes;
15
(iv) any trade payables; or
(v) the portion of any Indebtedness that is incurred in
violation of this Indenture.
"Senior Subordinated Indebtedness" means (a) with respect to the
Company, the Notes and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to have the same rank as the Notes in right
of payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company which is not Senior Debt; (b)
with respect to any Guarantor, the Subsidiary Guarantees and any other
Indebtedness of such Guarantor that specifically provides that such Indebtedness
is to have the same rank as the Subsidiary Guarantees in right of payment and is
not subordinated by its terms in right of payment to any Indebtedness or other
obligation of such Guarantor which is not Senior Debt; and (c) the Existing
Senior Subordinated Notes.
"Shelf Registration Statement" means the registration statement
relating to the registration of the Notes under Rule 415 of the Securities Act,
as may be set forth in a Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date of this Indenture.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Obligations" means any Indebtedness of the Company
(whether outstanding on the date hereof or thereafter incurred) that is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement to that effect.
"Subsidiary" means, with respect to any specified Person:
(a) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(ii) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Subsidiary Guarantee" means the Guarantee of the Notes by each of
the Guarantors pursuant to Article 10 hereof and in the form of the Guarantee
endorsed on the form of Note attached as Exhibit E hereto and any additional
Guarantee of the Notes to be executed by any Subsidiary of the Company pursuant
to Section 4.18 hereof.
"Surviving Person" means the surviving Person formed by a merger,
consolidation or amalgamation and, for purposes of Section 5.01 hereof, a Person
to whom all or substantially all of the properties or assets of the Company or
any Guarantor is sold, assigned, transferred, conveyed or otherwise disposed of.
"TIA" means the Trust Indenture Act of 1939, as amended, and the
rules and regulations thereunder.
"Treasury Rate" means, at the time of computation, the yield to
maturity of United States Treasury Securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
16
H.15(519) which has become publicly available at least two business days prior
to the redemption date or, if such Statistical Release is no longer published,
any publicly available source of similar market data) most nearly equal to the
period from the redemption date to July 15, 2010; provided, however, that if the
period from the redemption date to July 15, 2010 is not equal to the constant
maturity of a United States Treasury Security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury Securities for which such yields are given, except
that if the period from the redemption date to July 15, 2010 is less than one
year, the weekly average yield on actually traded United States Treasury
Securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive Notes
that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes that do
not and are not required to bear the Private Placement Legend and are deposited
with and registered in the name of the Depositary or its nominee.
"Unrestricted Subsidiary" means any Subsidiary of the Company or any
successor to any of them that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary:
(a) has no Indebtedness other than Non-Recourse Debt;
(b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary unless the
terms of any such agreement, contract, arrangement or understanding are no
less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of
the Company;
(c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results;
(d) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries; and
(e) has at least one director on its Board of Directors that is not
a director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a director
or executive officer of the Company or any of its Restricted Subsidiaries.
"U.S. Government Securities" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount
of each then remaining
17
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the
Indebtedness, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment; by
(b) the then outstanding principal amount of such Indebtedness.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Acceleration Notice"............................................... 6.02
"Affiliate Transaction"............................................. 4.14
"Asset Sale Offer".................................................. 4.12
"Authentication Order".............................................. 2.02
"Benefited Party"................................................... 10.01
"Change of Control Offer"........................................... 4.17
"Change of Control Purchase Price".................................. 4.17
"Covenant Defeasance"............................................... 8.03
"DTC"............................................................... 2.03
"Event of Default".................................................. 6.01
"Legal Defeasance".................................................. 8.02
"losses"............................................................ 7.07
"Offer Amount"...................................................... 3.09
"Offer Period"...................................................... 3.09
"Offer to Purchase"................................................. 3.09
"Paying Agent"...................................................... 2.03
"Payment Blockage Notice"........................................... 12.03
"Purchase Date"..................................................... 3.09
"Purchase Price..................................................... 3.09
"Registrar"......................................................... 2.03
"Security Register"................................................. 2.03
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes and the Guarantees;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
(c) All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA and not otherwise defined herein have the meanings so assigned to
them.
18
SECTION 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular;
(v) all references in this instrument to "Articles," "Sections" and
other subdivisions are to the designated Articles, Sections and
subdivisions of this instrument as originally executed;
(vi) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
(vii) "including" means "including without limitation;"
(viii) provisions apply to successive events and transactions; and
(ix) references to sections of or rules under the Securities Act, the
Exchange Act or the TIA shall be deemed to include substitute, replacement
or successor sections or rules adopted by the Commission from time to time
thereunder.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form included in Exhibit A hereto,
which is hereby incorporated in and expressly made part of this Indenture. The
Notes may have notations, legends or endorsements required by law, exchange rule
or usage in addition to those set forth on Exhibit A. Each Note shall be dated
the date of its authentication. The Notes shall be in denominations of $1,000
and integral multiples thereof. The terms and provisions contained in the Notes
shall constitute 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. To the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) FORM OF NOTES. Notes shall be issued initially in global form
and shall be substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the "Schedule of Exchanges of Interests in
the Global Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such aggregate
principal amount of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions
and transfers of interests therein. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
19
(c) BOOK-ENTRY PROVISIONS. This Section 2.01(c) shall apply only to
Global Notes deposited with the Trustee, as custodian for the Depositary.
Participants and Indirect Participants shall have no rights under this Indenture
or any Global Note with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as custodian for the Depositary, and the Depositary
shall be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants or Indirect
Participants, the Applicable Procedures or the operation of customary practices
of the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
(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
Clearstream" and "Customer Handbook" of Clearstream, or any successor
publications, shall be applicable to transfers of beneficial interests in Global
Notes that are held by Participants through Euroclear or Clearstream.
(e) CERTIFICATED SECURITIES. The Company shall exchange Global notes
for Definitive Notes if: (i) at any time the Depositary notifies the Company
that it is unwilling or unable to continue to act as Depositary for the Global
Notes or if at any time the Depositary shall no longer be eligible to act as
such because it ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Company shall not have appointed a successor
Depositary within 120 days after the Company receives such notice or becomes
aware of such ineligibility, (ii) the Company, at its option, determines that
the Global Notes shall be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) upon written request of a Holder
or the Trustee if a Default or Event of Default shall have occurred and be
continuing.
Upon the occurrence of any of the events set forth in clauses (i),
(ii) or (iii) above, the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver, Definitive Notes, in authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Notes in
exchange for such Global Notes.
Upon the exchange of a Global Note for Definitive Notes, such Global
Note shall be cancelled by the Trustee or an agent of the Company or the
Trustee. Definitive Notes issued in exchange for a Global Note pursuant to this
Section 2.01 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its Participants
or its Applicable Procedures, shall instruct the Trustee or an agent of the
Company or the Trustee in writing. The Trustee or such agent shall deliver such
Definitive Notes to or as directed by the Persons in whose names such Definitive
Notes are so registered or to the Depositary.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall execute the Notes on behalf of the Company by
manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated by the Trustee, the Note shall
nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by
an Officer (an "AUTHENTICATION ORDER"), authenticate Notes for issuance.
(e) The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless otherwise provided in such
appointment, 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
20
such agent. An authenticating agent shall have the same rights as the Trustee to
deal with Holders, the Company or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register (the "SECURITY REGISTER") of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes, and
the Trustee hereby agrees so to initially act.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest 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 funds held
by it relating to the Notes to the Trustee. The Company at any time may require
a Paying Agent to pay all funds held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for such funds. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all funds held by it as Paying Agent. Upon any Event of
Default under Sections 6.01(i) and (j) hereof relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or cause to be furnished to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders and the Company
shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. Upon the occurrence of any of the
events set forth in Section 2.01(e) above, Definitive Notes shall be issued in
denominations of $1,000 or integral multiples thereof and in such names as the
Depositary shall instruct the Trustee in writing. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Except as provided above, every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note
21
may not be exchanged for another Note other than as provided in this Section
2.06(a), and beneficial interests in a Global Note may not be transferred and
exchanged other than as provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend and any Applicable
Procedures. Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. Except as may be
required by any Applicable Procedures, no written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A)(1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (B)(1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note
to Another Restricted Global Note. A holder of a beneficial interest in a
Restricted Global Note may transfer such beneficial interest 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 2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof or, if permitted by
the Applicable Procedures, item (3) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
22
(C) if the transferee is required by the Applicable Procedures
to take delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) Transfer or Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
holder of a beneficial interest in a Restricted Global Note may exchange
such beneficial interest for a beneficial interest in an Unrestricted
Global Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with a Registration Rights Agreement
and the holder of the beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any
and all certifications required in the applicable Letter of
Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
an Exchange Offer Registration Statement in accordance with a
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 clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer complies with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall execute and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in an Unrestricted
Global Note for Beneficial Interests in a Restricted Global Note
Prohibited. Beneficial interests in an Unrestricted Global Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
23
(c) Transfer and Exchange of Beneficial Interests in Global Notes
for Definitive Notes.
(i) Transfer or Exchange of Beneficial Interests in Restricted Global
Notes to Restricted Definitive Notes. Subject to Section 2.06(a) hereof,
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, 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 (as defined in Section
902(k) of Regulation S) in accordance with Rule 903 or Rule 904, 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 clauses (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable; or
(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,
the Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver a Restricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of
such beneficial interest in the instructions delivered to the Registrar by
the Depositary and the applicable Participant or Indirect Participant on
behalf of such holder. Any Restricted Definitive Note issued in exchange
for beneficial interests in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall designate in such instructions. The Trustee shall deliver
such Restricted Definitive Notes to the Persons in whose names such Notes
are so registered. Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Transfer or Exchange of Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. Subject to Section 2.06(a) hereof,
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
24
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 a Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any
and all certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such
Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
an Exchange Offer Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer complies 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 any of the conditions of any of the clauses of
this Section 2.06(c)(ii), the Company shall execute and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of
such beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on
behalf of such holder, and the Trustee shall reduce or cause to be reduced
in a corresponding amount pursuant to Section 2.06(h), the aggregate
principal amount of the applicable Restricted Global Note.
(iii) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes. Subject to Section 2.06(a)
hereof, if any holder of a beneficial interest in an Unrestricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note,
then, upon satisfaction of the applicable conditions set forth in Section
2.06(b)(i) hereof, the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the applicable Unrestricted Global Note, and the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate principal
amount to the Person designated by the holder of such beneficial interest
in instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder.
Any Unrestricted
25
Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee
shall deliver such Unrestricted Definitive Notes to the Persons in whose
names such Notes are so registered. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in the Global Notes.
(i) Transfer or Exchange of Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any holder of a Restricted
Definitive Note proposes to exchange such Restricted Definitive 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 Restricted Definitive 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, 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 (as defined in Rule
902(k) of Regulation S) in accordance with Rule 903 or Rule 904, 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, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in clauses (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable; or
(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,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(h)
hereof, the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of clause (B)
above, a 144A Global Note, in the case of clause (C) above, a Regulation S
Global Note, and in all other cases, a IAI Global Note.
(ii) Transfer or Exchange of Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A holder of a Restricted
Definitive Note may exchange such Restricted Definitive 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:
26
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any
and all certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such
Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
an Exchange Offer Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Definitive Note proposes
to exchange such Restricted Definitive Note 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)(c) thereof; or
(2) if the holder of such Restricted Definitive Note proposes
to transfer such Restricted Definitive Note 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 clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer shall be effected in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend shall
no longer be required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the clauses in this
Section 2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note
and increase or cause to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof, the aggregate principal amount of the Unrestricted
Global Note.
(iii) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes. A holder of an
Unrestricted Definitive Note may exchange such Unrestricted Definitive
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Unrestricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of one of the
Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in
a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such exchange or
transfer of a Definitive Note for a beneficial interest in an Unrestricted
Global Note is effected pursuant to clause (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.
27
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a holder of Definitive Notes and such holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such holder. In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Transfer of 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:
(A) if the transfer will be made pursuant to Rule 144A, a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
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) Transfer or Exchange of 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 only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights Agreement
and the holder, in the case of an exchange, or the transferee, in
the case of a transfer, makes any and all certifications in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by a Registration Rights Agreement;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration Rights
Agreement;
(C) any such transfer is effected by a broker-dealer pursuant
to an Exchange Offer Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Definitive Note proposes
to exchange such Restricted Definitive 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 Restricted Definitive 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;
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and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer complies with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the clauses of this
Section 2.06(e)(ii), the Trustee shall cancel the prior Restricted Definitive
Note and the Company shall execute, and upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate aggregate principal
amount to the Person designated by the holder of such prior Restricted
Definitive Note in instructions delivered to the Registrar by such holder.
(iii) Transfer of Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A holder of Unrestricted Definitive Notes may transfer
such Unrestricted Definitive 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 a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of the
beneficial interests in the applicable Restricted Global Notes (1) tendered for
acceptance by Persons that make any and all certifications in the applicable
Letters of Transmittal (or are deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement and (2) accepted for exchange in such Exchange
Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount
equal to the aggregate principal amount of the Restricted Definitive Notes
tendered for acceptance by Persons who made the foregoing certifications and
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate principal amount of the applicable Restricted Global Notes,
and the Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
to the Persons designated by the holders of Restricted Definitive Notes so
accepted Unrestricted Definitive Notes in the appropriate aggregate principal
amount.
(g) LEGENDS. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by clause (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE 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, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT
29
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES 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 OF THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to clauses (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and
30
cancelled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the aggregate principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, the aggregate principal amount of such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 4.12, 4.17 and 9.05 hereof).
(ii) All Global Notes and Definitive Notes issued upon any registration
or transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Company, evidencing the same debt as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
(iii) Neither the Registrar nor the Company shall be required (A) to
issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at
the close of business on the date 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 (including a Regular Record Date) and the next succeeding Interest
Payment Date.
(iv) Prior to due presentment for the registration of 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, premium, if any, and
interest on such Note and for all other purposes, in each case regardless
of any notice to the contrary.
(v) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
(vi) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restriction on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including transfers between or among beneficial
owners of interests in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of,
this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate a replacement Note. If required by the Trustee or the Company, the
Holder of such Note shall provide an affidavit of loss and indemnity
31
that is sufficient, in the judgment of the Trustee or the Company, to protect
the Company, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer in connection with such replacement. If required by
the Company, such Holder shall reimburse the Company for its reasonable expenses
in connection with such replacement.
Every replacement Note issued in accordance with this Section 2.07
shall be the valid obligation of the Company, evidencing the same debt as the
destroyed, lost or stolen Note, and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time shall be the entire principal
amount of Notes represented by all of the Global Notes and Definitive Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those subject to reductions in beneficial interests
effected by the Trustee in accordance with Section 2.06 hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note shall not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; provided, however, that
Notes held by the Company or a Subsidiary of the Company shall be deemed not to
be outstanding for purposes of Section 3.07(c) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it shall
cease to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it shall cease to be outstanding and interest on it shall
cease to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date, a Purchase Date or a
maturity date, funds sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Affiliate of 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 a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee 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 Global Notes or
Definitive Notes in exchange for temporary Notes, as applicable. After
preparation of Definitive Notes, the Temporary Notes will be exchangeable for
Definitive Notes upon surrender of the Temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
Upon sole direction of the Company, the Trustee and no one else shall cancel all
Notes surrendered for
32
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirements of
the Exchange Act or other applicable laws) unless by written order, signed by an
Officer of the Company, the Company directs them to be returned to it.
Certification of the destruction of all cancelled Notes shall be delivered to
the Company from time to time upon request. The Company may not issue new Notes
to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. PAYMENT OF INTEREST; 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 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 10 days prior to the related Interest Payment
Date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related Interest
Payment Date and the amount of such interest to be paid.
SECTION 2.13. CUSIP OR ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" and/or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
and/or "ISIN" numbers in notices of redemption or Offers to Purchase as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption or notice of
an Offer to Purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or Offer to
Purchase shall not be affected by any defect in or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the "CUSIP" and/or
"ISIN" numbers.
SECTION 2.14. ADDITIONAL INTEREST.
If Additional Interest is payable by the Company pursuant to a
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such
interest is payable pursuant to Section 4.01 hereof. Unless and until a
Responsible Officer of the Trustee receives such a certificate or instruction or
direction from the Holders in accordance with the terms of this Indenture, the
Trustee may assume without inquiry that no Additional Interest is payable. The
foregoing shall not prejudice the rights of the Holders with respect to their
entitlement to Additional Interest as otherwise set forth in this Indenture or
the Notes and pursuing any action against the Company directly or otherwise
directing the Trustee to take any such action in accordance with the terms of
this Indenture and the Notes. If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the Trustee
an Officers' Certificate setting forth the details of such payment.
SECTION 2.15. ISSUANCE OF ADDITIONAL NOTES.
The Company shall be entitled, subject to its compliance with
Section 4.09 hereof, to issue Additional Notes under this Indenture which shall
have identical terms as the Initial Notes issued on the date hereof, other than
with respect to the date of issuance, issue price and rights under a related
Registration Rights Agreement, if any. The Initial Notes issued on the date
hereof, any Additional Notes and all Exchange Notes issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture,
including directions, waivers, amendments, consents, redemptions and Offers to
Purchase.
With respect to any Additional Notes, the Company shall set forth in
a Board Resolution and an Officers' Certificate, a copy of each of which shall
be delivered to the Trustee, the following information:
33
(a) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(b) the issue price, the Issue Date and the CUSIP and/or ISIN number
of such Additional Notes; provided, however, that no Additional Notes may be
issued at a price that would cause such Additional Notes to have "original issue
discount" within the meaning of Section 1273 of the Code, other than a de
minimis original issue discount within the meaning of Section 1273 of the Code;
and
(c) whether such Additional Notes shall be subject to the
restrictions on transfer set forth in Section 2.06 hereof relating to Restricted
Global Notes and Restricted Definitive Notes.
SECTION 2.16. RECORD DATE.
The record date for purposes of determining the identity of Holders
of Notes entitled to vote or consent to any action by vote or consent or
permitted under this Indenture shall be determined as provided for in TIA
Section 316(c).
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date (or such
shorter period as allowed by the Trustee), an Officers' Certificate setting
forth (a) the applicable section of this Indenture pursuant to which the
redemption shall occur, (b) the redemption date, (c) the principal amount of
Notes to be redeemed and (d) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, by lot or in accordance with any other method the Trustee deems
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.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples thereof;
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 an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days prior to 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 such
Holder's registered address appearing in the Security Register, except that
redemption notices may be mailed more than 60 days prior to a redemption date if
the notice is issued in connection with a defeasance pursuant to Article 8
hereof or a satisfaction and discharge pursuant to Article 11 hereof.
The notice shall identify the Notes to be redeemed and shall state:
34
(a) the redemption date;
(b) the appropriate method for calculation of the redemption price,
but need not include the redemption price itself; the actual redemption price
shall be set forth in an Officers' Certificate delivered to the Trustee no later
than two (2) Business Days prior to the redemption date;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, if applicable, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the applicable section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness of the
CUSIP and/or ISIN numbers, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days (or such shorter
period allowed by the Trustee), prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice (in the name and at the
expense of the Company) and setting forth the information to be stated in such
notice as provided in this Section 3.03.
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 shall become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 11:00 a.m. Eastern time on the Business Day prior to
any redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and, if applicable,
accrued and unpaid interest on all Notes to be redeemed on that date, and shall
invest such proceeds until such use to pay the redemption price as directed by
the Company in Cash Equivalents. The Trustee or the Paying Agent shall promptly,
and in any event within two (2) Business Days after the redemption date, 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 and unpaid interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for purchase or redemption in
accordance with Section 2.08(d) hereof, whether or note such Notes are presented
for payment. If a Note is redeemed on or after a Regular Record Date but on or
prior to the related Interest Payment Date, then any accrued and unpaid
interest, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such Regular 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
35
the unpaid principal from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Section 3.07,
the Notes shall not be redeemable at the option of the Company prior to July 15,
2010. Beginning on July 15, 2010, the Company may redeem all or a portion of the
Notes, at once or over time, after giving the notice required pursuant to
Section 3.03 hereof, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and
Additional Interest, if any, on the Notes redeemed, to the applicable redemption
date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period commencing on July 15 of the years indicated
below:
Year Percentage
---- ----------
2010................................................... 103.875%
2011................................................... 102.583%
2012................................................... 101.292%
2013 and thereafter.................................... 100.000%
(b) At any time and from time to time prior to July 15, 2008, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
(including Additional Notes) issued under this Indenture at a redemption price
(expressed as a percentage of principal amount) equal to 107.750% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date) with the net cash proceeds of any Equity
Offering of common stock of the Company; provided, however, that (i) at least
65% of the aggregate principal amount of the Notes initially issued under this
Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after giving effect to such redemption and (ii) any such
redemption shall be made within 120 days of such Equity Offering.
(c) At any time prior to July 15, 2010, the Company may redeem all
or any portion of the Notes, at once or over time, after giving the required
notice under the indenture at a redemption price equal to the greater of:
(i) 100% of the principal amount of the notes to be redeemed, and
(ii) the sum of the present values of (1) the redemption price of
the notes at July 15, 2010 (as set forth above) and (2) the
remaining scheduled payments of interest from the redemption
date through July 15, 2010, but excluding accrued and unpaid
interest through the redemption date, discounted to the
redemption date (assuming a 360 day year consisting of twelve
30 day months), at the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest, including Additional
Interest, if any, to but excluding the redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
(d) Any notice to holders of Notes of such a redemption shall
include the appropriate calculation of the redemption price, but need not
include the redemption price itself. The actual redemption price, calculated as
36
described above, shall be set forth in an Officers' Certificate delivered to the
Trustee no later than two business days prior to the redemption date.
(e) Any prepayment pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
Except as set forth in Sections 4.12 and 4.17 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to, or offer to purchase, the Notes.
SECTION 3.09. OFFER TO PURCHASE.
(a) In the event that, pursuant to Section 4.12 or 4.17 hereof, the
Company shall be required to commence an Asset Sale Offer or a Change of Control
Offer (each, an "OFFER TO PURCHASE"), it shall follow the procedures specified
below.
(b) The Company shall cause a notice of the Offer to Purchase to be
sent at least once to the Dow Xxxxx News Service or similar business news
service in the United States.
(c) The Company shall commence the Offer to Purchase by sending, by
first-class mail, with a copy to the Trustee, to each Holder at such Holder's
address appearing in the Security Register, a notice the terms of which shall
govern the Offer to Purchase stating:
(i) that the Offer to Purchase is being made pursuant to this Section
3.09 and Section 4.12 or Section 4.17, as the case may be, and, in the
case of a Change of Control Offer, that a Change of Control has occurred,
the circumstances and relevant facts regarding the Change of Control and
that a Change of Control Offer is being made pursuant to Section 4.17;
(ii) the principal amount of Notes required to be purchased pursuant to
Section 4.12 or Section 4.17, as the case may be (the "OFFER AMOUNT"), the
purchase price set forth in Section 4.12 or Section 4.17 hereof, as
applicable (the "PURCHASE PRICE"), the Offer Period and the Purchase Date
(each as defined below);
(iii) except as provided in clause (ix), that all Notes timely tendered
and not withdrawn shall be accepted for payment;
(iv) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(v) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to
accrue interest after the Purchase Date;
(vi) that Holders electing to have a Note purchased pursuant to an
Offer to Purchase may elect to have Notes purchased in integral multiples
of $1,000 only;
(vii) that Holders electing to have a Note purchased pursuant to any
Offer to Purchase 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, the
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice before the close of business on the third Business
Day before the Purchase Date;
(viii) 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, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note (or
37
portions thereof) the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(ix) that, in the case of an Asset Sale Offer, if the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount,
the Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000 or integral multiples thereof shall
be purchased);
(x) that Holders whose Notes were purchased 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); and
(xi) any other procedures the Holders must follow in order to tender
their Notes (or portions thereof) for payment and the procedures that
Holders must follow in order to withdraw an election to tender Notes (or
portions thereof) for payment.
(d) The Offer to Purchase shall remain open for a period of at least
30 days but no more than 60 days following its commencement, except to the
extent that a longer period is required by applicable law (the "OFFER PERIOD").
No later than five (5) Business Days (and in any event no later than the 60th
day following the Change of Control) after the termination of the Offer Period
(the "PURCHASE DATE"), the Company shall purchase the Offer Amount or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the
Offer to Purchase. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made. The Company shall publicly announce the
results of the Offer to Purchase on the Purchase Date.
(e) On or prior to the Purchase Date, the Company shall, to the
extent lawful:
(i) accept for payment (on a pro rata basis to the extent necessary in
connection with an Asset Sale Offer), the Offer Amount of Notes or
portions of Notes properly tendered and not withdrawn pursuant to the
Offer to Purchase, or if less than the Offer Amount has been tendered, all
Notes tendered;
(ii) deposit with the Paying Agent funds in an amount equal to the
Purchase Price in respect of all Notes or portions of Notes properly
tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased
by the Company and that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09.
(f) The Paying Agent shall promptly (but in the case of a Change of
Control not later than 60 days from the date of the Change of Control) execute
and issue a new Note, and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate and deliver (or cause
to be transferred by book-entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered; provided,
however, that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof.
(g) If the Purchase Date is on or after a Regular Record Date and on
or before the related Interest Payment Date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Offer to Purchase.
(h) The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with Sections 4.12 or
4.17, as applicable, this Section 3.09 or other provisions of this Indenture,
the Company shall comply with applicable securities laws and regulations and
shall not be deemed
38
to have breached its obligations under Sections 4.12 or 4.17, as applicable,
this Section 3.09 or such other provision by virtue of such compliance.
(i) Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made in accordance with the
provisions of Section 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on, the Notes on the dates and in the manner provided in
this Indenture and 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 a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available United States dollars
and designated for and sufficient to pay all principal, premium, if any, and
interest then due. Such Paying Agent shall return to the Company promptly, and
in any event, no later than five (5) Business Days following the date of
payment, any money (including accrued interest) that exceeds such amount of
principal, premium, if any, and interest paid on the Notes. The Company shall
pay Additional Interest, if any, in the same manner, on the dates and in the
amounts set forth in a Registration Rights Agreement, the Notes and this
Indenture. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on such payment for the intervening
period.
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
(without regard to any applicable grace periods), from time to time on demand at
the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan, The City
of New York, an office or agency (which may be an office or drop facility of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be presented or surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.03 hereof.
39
SECTION 4.03. REPORTS.
(a) Whether or not required by the Commission, so long as any Notes
are outstanding, the Company will furnish to the Holders, within the time
periods specified in the Commission's rules and regulations:
(i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by the
Company's certified independent accountants; and
(ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file
such reports.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and if the Company or any of its Restricted Subsidiaries has made an
Investment of at least $0.1 million in such Unrestricted Subsidiary, in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," of the financial condition and results of operations of the Company
and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
(c) In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, whether or not required by
the Commission, the Company will file a copy of all of the information and
reports referred to in clauses (a)(i) and (a)(ii) above with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors upon
request. In addition, the Company and the Guarantors have agreed that, for so
long as any Notes remain outstanding, they will furnish to the holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) The Trustee shall not be under a duty to review or evaluate any
report or information delivered to the Trustee pursuant to the provisions of
this Section 4.03 for the purposes of making such reports available to it and to
the Holders of Notes who may request such information. Delivery of such reports,
information and documents to the Trustee as may be required pursuant to this
Section 4.03 is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year commencing with the fiscal year ended December 31,
2005, an Officers' Certificate stating that a review of the activities of the
Company, the Guarantors and their respective Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company, the Guarantors and their respective
Subsidiaries have kept, observed, performed and fulfilled their obligations
under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company, the
Guarantors and their respective Subsidiaries have kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and are not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, premium, if any, or interest 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.
40
(b) The Company shall otherwise comply with TIA Section 314(a)(2).
(c) The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event that with the giving of notice and/or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies, except such as are being 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.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (a) its
corporate existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (b) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any
Restricted Subsidiary, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes, or
that such preservation is not necessary in connection with any transaction not
prohibited by this Indenture.
SECTION 4.08. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, pay or cause to be paid any consideration
to or for the benefit of 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 and is paid to all Holders
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
SECTION 4.09. INCURRENCE OF ADDITIONAL DEBT AND ISSUANCE OF CAPITAL STOCK.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, issue, assume, Guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any Restricted Subsidiary to issue any shares of preferred stock (including
Disqualified Stock) other than to the Company; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock and any of the Company's Restricted Subsidiaries that are Guarantors may
incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio
for the Company's most recently ended four full fiscal quarters for which
internal financial statements are
41
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock is issued would have been at least 2.00
to 1, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred or
the preferred stock or Disqualified Stock had been issued, as the case may be,
at the beginning of such four-quarter period.
(b) Section 4.09(a) will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company or any Guarantor of additional
Indebtedness and letters of credit under one or more Credit Facilities and
Guarantees thereof by the Guarantors; provided that the aggregate
principal amount of all Indebtedness and letters of credit of the Company
and the Guarantors incurred pursuant to this clause (1) (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and the Guarantors thereunder) does not
exceed $525.0 million, less the aggregate amount of Net Proceeds from an
Asset Sale applied by the Company and its Subsidiaries to repay
Indebtedness thereunder, pursuant to Section 4.12 hereof;
(2) the incurrence by the Company and the Restricted Subsidiaries of
the Existing Indebtedness, including any existing HUD Financings and the
Existing Senior Subordinated Notes;
(3) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Initial Notes (and the related Exchange Notes to be
issued pursuant to the Registration Rights Agreement and in exchange for
any Additional Notes) and the incurrence by the Guarantors of the
Subsidiary Guarantees of those notes and any Additional Notes;
(4) additional HUD Financings incurred after the date of this
indenture in an aggregate principal amount not to exceed $25.0 million
outstanding at any time;
(5) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the
Company or such Restricted Subsidiary, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause
(5), not to exceed $20.0 million at any time outstanding;
(6) the incurrence by the Company or any Restricted Subsidiary of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to extend, defease, renew, refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was incurred
under the first paragraph of this Section 4.09 or clauses (2), (3), (4),
(5) or this clause (6) of this paragraph (b);
(7) the incurrence by the Company or any Restricted Subsidiary of
intercompany Indebtedness between or among the Company and any Restricted
Subsidiary; provided, however, that:
(i) if the Company or a Guarantor is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the
Notes or the Subsidiary Guarantees, as the case may be; and;
(ii)(A) 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 and (B) any
subsequent sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary
shall be deemed, in each case, to constitute an incurrence of
42
such Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (7);
(8) the incurrence of any Physician Support Obligations by the
Company or any Restricted Subsidiary;
(9) the incurrence of Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities, holdbacks or obligations
in respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including without limitation, shares
of Capital Stock of Restricted Subsidiaries or contingent payment
obligations incurred in connection with the acquisition of assets which
are contingent on the performance of the assets acquired, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such assets or shares of Capital Stock of such Restricted
Subsidiary for the purpose of financing such acquisition;
(10) the incurrence of Indebtedness of the Company or any Restricted
Subsidiary represented by (i) letters of credit for the account of the
Company or any Restricted Subsidiary or (ii) other obligations to
reimburse third parties pursuant to any surety bond or other similar
arrangements, which letters of credit or other obligations, as the case
may be, are intended to provide security for workers' compensation claims,
payment obligations in connection with sales tax and insurance or other
similar requirements in the ordinary course of business;
(11) the incurrence by the Company or any Restricted Subsidiary of
Hedging Obligations that are incurred in the normal course of business and
consistent with past business practices for the purpose of fixing or
hedging currency or interest rate risk (including with respect to any
floating rate Indebtedness that is permitted by the terms of this
Indenture to be outstanding in connection with the conduct of their
respective businesses) and not for speculative purposes;
(12) the Guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary that was permitted
to be incurred by another provision of this Section 4.09;
(13) the incurrence by the Company's Unrestricted Subsidiaries of
Non-recourse Debt; provided, however, that if any such Indebtedness ceases
to be Non-recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of
the Company that was not permitted by this clause (13); and
(14) the incurrence by the Company or any Guarantor of additional
Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any one time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (14), not to exceed $35.0
million.
(c) For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (1) through (14) above or
is entitled to be incurred pursuant to Section 4.09(a), in each case, as of the
date of incurrence thereof, the Company shall, in its sole discretion, classify
(or later reclassify in whole or in part, in its sole discretion) such item of
Indebtedness in any manner that complies with this Section 4.09 and such
Indebtedness will be treated as having been incurred pursuant to such clauses or
paragraph (a) hereof, as the case may be, designated by the Company.
Indebtedness under Credit Facilities outstanding on the date on which the Notes
are first issued and authenticated under this Indenture will be deemed to have
been incurred on such date in reliance of the exception provided by clause (1)
of Section 4.09(b). Accrual of interest or dividends, the accretion of accreted
value or liquidation preference and the payment of interest or dividends in the
form of additional Indebtedness or Disqualified Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes
of this Section 4.09.
43
SECTION 4.10. RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution (A) on account of the Company's or any Restricted
Subsidiary's Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or
any Restricted Subsidiary) or (B) to the direct or indirect holders of the
Company's or any Restricted Subsidiary's Equity Interests in their
capacity as such (other than dividends or distributions (i) payable in
Equity Interests (other than Disqualified Stock) of the Company or (ii) 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);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company
or any Restricted Subsidiary (other than from the Company or any
Restricted Subsidiary);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Subordinated
Obligations, except a payment of interest or principal at the Stated
Maturity thereof; or
(4) make any Restricted Investment (all such payments and other
actions set forth in these clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted
Payment:
(i) no Default or Event of Default has occurred and is
continuing; and
(ii)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 most recently ended
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; and
(iii) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and the
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3) and (4) of
paragraph (b) hereof), is less than the sum, without duplication,
of:
(A) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) since June 30,
2003 to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds received by
the Company since June 30, 2003 as a contribution to its
common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or
from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt
securities of the Company, in either case, that have been
converted into or exchanged for such Equity Interests of the
Company (other than Equity Interests or Disqualified Stock or
debt securities) sold to a Subsidiary of the Company), plus
44
(C) to the extent that any Restricted Investment that
was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the
cash proceeds with respect to such Restricted Investment (less
the cost of disposition, if any) and (ii) the initial amount
of such Restricted Investment, plus
(D) in case, after the date hereof, any Unrestricted
Subsidiary has been redesignated as a Restricted Subsidiary
under the terms of this Indenture or has been merged,
consolidated or amalgamated with or into, or transfers or
conveys assets to, or is liquidated into the Company or a
Restricted Subsidiary, an amount equal to the lesser of (1)
the net book value at the date of the redesignation,
combination or transfer of the aggregate Investments made by
the Company and the Restricted Subsidiaries in the
Unrestricted Subsidiary (or of the assets transferred or
conveyed, as applicable), and (2) the fair market value of the
Investments owned by the Company and the Restricted
Subsidiaries in such Unrestricted Subsidiary at the time of
the redesignation, combination or transfer (or of the assets
transferred or conveyed, as applicable).
(b) So long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, the preceding provisions will not
prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the dividend
payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Obligations of the Company or any
Guarantor or of any Equity Interests of the Company in exchange for, or
out of the net cash proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary) of, Equity Interests of the Company
(other than Disqualified Stock); provided, however, that the amount of any
such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition will be excluded
from clause (iii)(B) of the preceding paragraph;
(3) the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Obligations of the Company or any
Guarantor with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness; provided, however, that the amount of any such
net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition will be excluded from clause
(iii)(B) of the preceding paragraph;
(4) the redemption, repurchase or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted
Subsidiary (i) held by any member of the Company's (or any Restricted
Subsidiary's) management pursuant to any management equity subscription
plan or agreement, stock option or stock purchase plan or agreement or
employee benefit plan as may be adopted by the Company from time to time
or pursuant to any agreement with any director or officer in existence on
the date of this Indenture or (ii) from an employee of the Company upon
the termination of such employee's employment with the Company; provided,
however, that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests in reliance on this clause (4) may
not exceed $5.0 million in any twelve-month period;
(5) repurchases, acquisitions or retirements of Capital Stock of the
Company deemed to occur upon the exercise of stock options or similar
rights under employee benefit plans of the Company or its Subsidiaries if
such Capital Stock represents all or a portion of the exercise price
thereof; and
(6) other Restricted Payments in an aggregate amount since the Issue
Date not to exceed $30.0 million.
45
(c) The amount of all Restricted Payments (other than cash) will be
the fair market value on the date of the Restricted Payment of the assets,
property 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 assets or securities that are required to
be valued by this Section 4.10 will be determined by the Board of Directors
whose resolution with respect thereto will be delivered to the Trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the fair market value exceeds $20.0 million. Not later than the date
of making any Restricted Payment, the Company will deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.10 were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture. If the Company or a Restricted Subsidiary makes a
Restricted Payment which at the time of the making of such Restricted Payment
would in the good faith determination of the Company be permitted under the
provisions of this Indenture, such Restricted Payment shall be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company financial statements affecting
Consolidated Net Income of the Company for any period.
SECTION 4.11. LIENS.
The Company will not, and will not permit any Restricted Subsidiary
to, create, incur or assume any consensual Liens of any kind against or upon any
of their respective properties or assets, or any proceeds, income or profit
therefrom that secure Senior Subordinated Indebtedness or Subordinated
Obligations; provided that:
(a) in the case of Liens securing Subordinated Obligations, the
Notes are secured by a Lien on such property, assets, proceeds, income or
profit that is senior in priority to such Liens; and
(b) in the case of Liens securing Senior Subordinated Indebtedness,
the Notes are equally and ratably secured by a Lien on such property,
assets, proceeds, income or profit.
SECTION 4.12. ASSET SALES.
The Company will not, and will not permit any Restricted Subsidiary
to, consummate an Asset Sale unless:
(a) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal to the
fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of the assets
sold, leased, transferred, conveyed or otherwise disposed of or Equity
Interests of any Restricted Subsidiary issued, sold, transferred, conveyed
or otherwise disposed of;
(b) at least 75% of the consideration received in the Asset Sale by
the Company or such Restricted Subsidiary is in the form of cash. For
purposes of this clause (b), each of the following will be deemed to be
cash:
(i) any liabilities, as shown on the Company's or such
Restricted Subsidiary's most recent 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
Subsidiary Guarantee) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability;
(ii)any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that
are converted by the Company or such Restricted Subsidiary into cash
within 90 days, to the extent of the cash received in that
conversion; and
46
(iii) with respect to any sale of Capital Stock of a
Restricted Subsidiary to one or more Qualified Physicians,
promissory notes or similar obligations from such physicians or
health care professionals; provided that the aggregate amount of
such promissory notes or other similar obligations held by the
Company and its Restricted Subsidiaries shall not exceed $5.0
million outstanding at any one time; and
(c) the Company delivers an Officers' Certificate to the Trustee
certifying that such Asset Sale complies with the foregoing clauses (a)
and (b).
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply those Net Proceeds (or any portion thereof) at its
option:
(1) to repay Senior Debt of the Company and any Guarantor (other
than Indebtedness owed to the Company, any Guarantor or any Affiliate of
the Company) and, if the Senior Debt repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto
if so required pursuant to the terms of the Credit Agreement governing
such revolving credit Indebtedness;
(2) to acquire all or substantially all of the assets of, or all of
the Voting Stock of, another Person engaged in a Permitted Business; or
(3) to acquire other long-term assets or property that are used in a
Permitted Business
Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph will constitute "EXCESS PROCEEDS." When
the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company will
make an offer to all Holders of Notes to purchase the maximum principal amount
of Notes and, if the Company is required to do so under the terms of any other
Indebtedness that is pari passu with the Notes, such other Indebtedness on a pro
rata basis with the Notes, that may be purchased out of the Excess Proceeds (an
"ASSET SALE OFFER"). The offer price in any Asset Sale Offer will be equal to
100% of principal amount plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase, and will be payable in cash. If any
Excess Proceeds remain after consummation of the purchase of all properly
tendered and not withdrawn Notes pursuant to an Asset Sale Offer, the Company
may use such remaining Excess Proceeds for any purpose not otherwise prohibited
by this Indenture. If the aggregate principal amount of Notes and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee will select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.
SECTION 4.13. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
47
(a) pay dividends or make any other distributions on its Capital
Stock to the Company or any Restricted Subsidiary, or with respect to any
other interest or participation in, or measured by, its profits, or pay
any indebtedness owed to the Company or any Restricted Subsidiary;
(b) make loans or advances to the Company or any Restricted
Subsidiary; or
(c) transfer any of its properties or assets to the Company or any
Restricted Subsidiary.
However, the preceding restrictions will not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, Credit Facilities
(including the Credit Agreement) and other agreements relating to the
Financing Transactions as in effect on the date of this Indenture and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements; provided
that the amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in those agreements on the date
of this Indenture;
(2) this Indenture, the Notes and the Subsidiary Guarantees;
(3) agreements related to HUD Financing and any amendments of those
agreements;
(4) applicable law;
(5) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any Restricted Subsidiary as in effect
at the time of such acquisition (except to the extent such Indebtedness or
Capital Stock was incurred in connection with or in contemplation of such
acquisition), 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; provided that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
(6) customary non-assignment provisions in leases and other
contracts entered into in the ordinary course of business and consistent
with industry practices;
(7) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on that property of the nature
described in clause (c) of the first paragraph of this Section 4.13;
(8) any agreement for the sale or other disposition of a Restricted
Subsidiary or the assets of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending its sale or other
disposition or the sale or other disposition of its assets;
(9) Permitted Refinancing Indebtedness; provided, however, that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced;
(10) Liens securing Indebtedness otherwise permitted to be incurred
under Section 4.11 hereof; and
48
(11)provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements entered into in the
ordinary course of business.
SECTION 4.14. AFFILIATE TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary
to, make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding, loan,
advance or Guarantee with, or for the benefit of, any Affiliate (each, an
"AFFILIATE TRANSACTION"), unless:
(a) the Affiliate Transaction (i) is evidenced in writing if it
involves transactions of $2.5 million or more and (ii) is on terms that
are no less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by
the Company or such Restricted Subsidiary with an unrelated Person; and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with this Section 4.14 and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion as to the fairness to the
Company or such Restricted Subsidiary from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing.
The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions between or among the Company and/or any Restricted
Subsidiary;
(2) sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Company;
(3) reasonable and customary directors' fees, indemnification and
similar arrangements, consulting fees, employee salaries, bonuses or
employment agreements, compensation or employee benefit arrangements and
incentive arrangements with any officer, director or employee of the
Company or a Restricted Subsidiary entered into in the ordinary course of
business;
(4) any transactions made in compliance with Section 4.10 hereof;
(5) loans and advances to non-executive officers and employees of
the Company or any Restricted Subsidiary in the ordinary course of
business in accordance with the past practices of the Company or any
Restricted Subsidiary; and
(6) any agreement as in effect as of the date of this Indenture or
any amendment thereto so long as any such amendment is not more
disadvantageous to the Holders in any material respect than the original
agreement as in effect on the date of this Indenture.
SECTION 4.15. ISSUANCES AND SALES OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company:
49
(a) 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 to the Company or to
any Restricted Subsidiary), unless:
(i) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Restricted
Subsidiary, and
(ii) the Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section
4.12 hereof;
provided, however, that this clause (a) will not apply to any pledge of
Capital Stock of any Restricted Subsidiary securing any Permitted Debt or
any exercise of remedies in connection therewith; provided that the Lien
securing such Permitted Debt is not prohibited by Section 4.11 hereof;
(b) will not permit any Restricted Subsidiary to issue any of its
Equity Interests (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than the
Company or any Restricted Subsidiary;
provided, however, that clauses (a) and (b) shall not prohibit any issuance,
sale or other disposition of Common Stock of a Restricted Subsidiary to one or
more Qualified Physicians if, immediately after giving effect thereto, such
Restricted Subsidiary would remain a Restricted Subsidiary and the Company will,
directly or indirectly, retain at least 80% of the Capital Stock of such
Restricted Subsidiary, and the Net Proceeds from such issuance, sale or other
disposition are applied in accordance with Section 4.12 hereof.
SECTION 4.16. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary properly
designated will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for (x) Restricted Payments
under the first paragraph of Section 4.10 hereof, or (y) Permitted Investments,
as determined by the Company. That designation will only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if the redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.10 hereof. If, at any time,
any Unrestricted Subsidiary would fail to meet the requirements specified in the
definition of "Unrestricted Subsidiary," it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of
such date and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09 hereof, the Company will be in default of such covenant.
The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation will only be permitted if (i) such Indebtedness is permitted under
Section 4.09 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period; and (ii) no
Default or Event of Default would be in existence following such designation.
SECTION 4.17. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall,
within 10 days of a Change of Control, make an offer in cash (the "CHANGE OF
CONTROL OFFER") pursuant to the procedures set forth in Section
50
3.09. Each Holder shall have the right to accept such offer and require the
Company to repurchase all or any portion (equal to $1,000 or an integral
multiple of $1,000) of such Holder's Notes pursuant to the Change of Control
Offer at a purchase price, in cash, equal to 101% of the aggregate principal
amount of Notes repurchased, plus accrued and unpaid interest (the "CHANGE OF
CONTROL PURCHASE PRICE") on the Notes repurchased, to the Purchase Date (subject
to the right of Holders of record on the relevant Regular Record Date) to
receive interest to, but excluding, the Purchase Date).
(b) Prior to complying with any of the provisions of this "Change of
Control" covenant, but in any event within 90 days following a Change of
Control, the Company will either repay all outstanding Senior Debt or obtain the
requisite consents, if any, under all agreements governing outstanding Senior
Debt to permit the repurchase of Notes required by this covenant. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
(c) The Company will 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 Indenture applicable to a Change of Control Offer
made by the Company and purchases all notes properly tendered and not withdrawn
under the Change of Control Offer.
SECTION 4.18. FUTURE SUBSIDIARY GUARANTORS.
If the Company or any Restricted Subsidiary acquires or creates
another Subsidiary after the date of this Indenture that (1) is formed under the
laws of the United States or any State of the United States or the District of
Columbia and in which the Company or any Restricted Subsidiary has made an
Investment of at least $0.1 million or (2) incurs, guarantees or otherwise
provides direct credit support for any Indebtedness of the Company or any of the
Company's Domestic Subsidiaries, then that newly acquired or created Subsidiary
will become a Guarantor and execute a supplemental indenture and deliver an
Opinion of Counsel satisfactory to the Trustee within 30 business days of the
later of (x) the date on which it was acquired or created and (y) the date the
Company or any Restricted Subsidiary has made an Investment of at least $0.1
million; provided, however, that the foregoing shall not apply to (i) HUD
Financing Subsidiaries, (ii) PSI Surety, Inc. and (iii) Subsidiaries that have
properly been designated as Unrestricted Subsidiaries in accordance with this
Indenture. The Subsidiary Guarantee of any such newly acquired or created
Subsidiary that becomes a Guarantor will be subordinated to all Indebtedness
under the Credit Agreement and all other Senior Debt of such Guarantor to the
same extent as the Notes are subordinated to the Senior Debt of the Company.
SECTION 4.19. BUSINESS ACTIVITIES.
The Company will not, and will not permit any Subsidiary to, engage
in any business other than Permitted Businesses, except to such extent as would
not be material to the Company and its Subsidiaries taken as a whole.
SECTION 4.20. LIMITATION ON LAYERING.
The Company will not incur, create, issue, assume, Guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of the Company and senior in any respect in
right of payment to the Notes; provided, however, that no Indebtedness of the
Company will be deemed to be contractually subordinated in right of payment
solely by virtue of being unsecured. No Guarantor will incur, create, issue,
assume, Guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to the Senior Debt of such Guarantor
and senior in any respect in right of payment to such Guarantor's Subsidiary
Guarantee; provided, however, that no Indebtedness of a Guarantor will be deemed
to be contractually subordinated in right of payment solely by virtue of being
unsecured.
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ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
(a) Neither the Company nor any Guarantor may, directly or
indirectly: (1) consolidate or merge with or into another Person (whether or not
the Company or such Guarantor, as the case may be, is the surviving corporation)
or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Company or any Guarantor,
in one or more related transactions, to another Person, unless:
(i) either
(A) the Company or such Guarantor, as the case may be, shall
be the Surviving Person; or
(B) the Person formed by or surviving any such consolidation
or merger (if other than the Company or such Guarantor, as the case
may be) or to which such sale, assignment, transfer, conveyance or
other disposition has been made shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia;
(ii)except as otherwise described with respect to the release of
Subsidiary Guarantees of Guarantors pursuant to Article 10, the Person
formed by or surviving any such consolidation or merger (if other than the
Company or such Guarantor, as the case may be) or the Person to which such
sale, assignment, transfer conveyance or other disposition has been made
assumes, by supplemental indenture in form reasonably satisfactory to the
Trustee, executed and delivered to the Trustee by such Person, the
obligations of the Company or such Guarantor, as the case may be, under
this Indenture, the Notes and the Subsidiary Guarantees;
(iii) immediately after such transaction, no Default or Event of
Default exists; and
(iv) except with respect to a consolidation or merger of the Company
with or into a Guarantor, or a Guarantor with or into another Guarantor,
the Company or such Guarantor, as the case may be, or the Person formed by
or surviving any such consolidation or merger (if other than the Company
or such Guarantor), or to which such sale, assignment, transfer,
conveyance or other disposition has been made will, on the date of such
transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in Section 4.09(a) hereof.
(b) Notwithstanding the preceding clause (iv), any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company or a Guarantor, and
notwithstanding the preceding clause (ii), any Guarantor may transfer real
property that is the subject of a HUD Financing to a HUD Financing Subsidiary in
connection with a HUD Financing permitted to be incurred pursuant to Section
4.09.
(c) The Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Except as described with respect to the release of Subsidiary
Guarantees of Guarantors pursuant to Article 10, the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
the Company or a Guarantor, as applicable, under this Indenture; provided,
however, that the predecessor entity shall
52
not be released from any of the obligations or covenants under this Indenture,
including with respect to the payment of the Notes and obligations under the
Subsidiary Guarantee, as the case may be, in the case of:
(a) a sale, transfer, assignment, conveyance or other disposition
(unless such sale, transfer, assignment, conveyance or other disposition
is of all or substantially all of the assets of the Company, taken as a
whole, or
(b) a lease.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default" with respect
to the Notes:
(a) default for 30 days in the payment when due of interest on, or
Additional Interest with respect to, the Notes (whether or not prohibited
by Article 12 hereof);
(b) default in the payment when due of the principal of, or premium,
if any, on, any of the Notes when the same becomes due and payable at its
Stated Maturity, upon acceleration, redemption, optional redemption,
required repurchase or otherwise (whether or not prohibited by Article 12
hereof);
(c) failure by the Company or any Restricted Subsidiary to comply
with Section 5.01 hereof;
(d) failure by the Company or any Restricted Subsidiary to comply
with Section 4.09, Section 4.10, Section 4.12 or Section 4.17 hereof, and
such failure continues for 30 days after written notice is given to the
Company as provided below; provided, however, that a default under the
Existing Senior Subordinated Notes arising out of a result of the failure
of the Company to comply with the provisions Section 4.09 or Section 4.10
hereof shall be a default under Section 4.09 or Section 4.10 of this
Indenture as applicable notwithstanding the 30-day grace period provided
for in this clause (d);
(e) failure by the Company or any Restricted Subsidiary to comply
with any other covenant or agreement in the Notes or in this Indenture
(other than a failure that is the subject of the foregoing clause (a),
(b), (c) or (d)), and such failure continues for 60 days after written
notice is given to the Company as provided below;
(f) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary) whether such Indebtedness or Guarantee now exists,
or is created after the date of this Indenture, if that default:
(i) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such
default (a "PAYMENT DEFAULT"); or
(ii) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $5.0 million or more, so long as the Existing
Senior Subordinated Notes remain outstanding, and $10.0 million or more
thereafter;
53
(g) failure by the Company or any Restricted Subsidiary to pay final
judgments aggregating in excess of $5.0 million, so long as the Existing
Senior Subordinated Notes remain outstanding, and $10.0 million or more
thereafter, which judgments are not paid, discharged or stayed for a
period of 60 days;
(h) except as permitted by this Indenture, any Subsidiary Guarantee
of a Guarantor shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee;
(i) the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or gives notice of intention to
make a proposal under any Bankruptcy Law;
(B) consents to the entry of an order for relief against it in
an involuntary case or consents to its dissolution or winding up;
(C) consents to the appointment of a receiver, interim
receiver, receiver and manager, liquidator, Trustee or custodian of
it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability to pay its debts as they
become due or otherwise admits its insolvency; and
(j) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary in an
involuntary case; or
(B) appoints a receiver, interim receiver, receiver and
manager, liquidator, Trustee or custodian of the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary;
and such order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than those of the type described in
Section 6.01(i) or (j)) occurs and is continuing, the Trustee may, and the
Trustee upon the request of Holders of 25% in principal amount of the the
outstanding Notes shall, or the Holders of at least 25% in principal amount of
outstanding Notes may, declare the principal of all the Notes, together with all
accrued and unpaid interest, premium, if any, to be due and payable by
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notice in writing to the Company and the Trustee specifying the respective Event
of Default and that such notice is a notice of acceleration (the "ACCELERATION
NOTICE"), and the same shall become immediately due and payable.
In the case of an Event of Default specified in Section 6.01 (i) or
(j), all outstanding Notes shall become due and payable immediately without any
further declaration or other act on the part of the Trustee or the Holders.
Holders may not enforce this Indenture or the Notes except as provided in this
Indenture.
At any time after a declaration of acceleration with respect to the
Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel such declaration
and its consequences if:
(a) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction;
(b) all existing Defaults and Events of Default have been cured or
waived except nonpayment of principal of or interest on the Notes that has
become due solely by reason of such declaration of acceleration;
(c) to the extent the payment of such interest is lawful, interest
(at the same rate specified in the Notes) on overdue installments of
interest and overdue payments of principal which has become due otherwise
than by such declaration of acceleration has been paid;
(d) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its reasonable expenses, disbursements and
advances; and
(e) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.01(i) or (j), the Trustee has received an
Officers' Certificate and Opinion of Counsel that such Event of Default
has been cured or waived.
In the case of an Event of Default with respect to the Notes
occurring by reason of any willful action or inaction taken or not taken by the
Company or on the Company's behalf with the intention of avoiding payment of the
premium that the Company would have been required to pay if the Company had then
elected to redeem the Notes pursuant to Section 3.07 hereof, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs by reason of any willful action or inaction taken or not taken by the
Company or on the Company's behalf with the intention of avoiding the premium
required upon a redemption of the Notes, then the premium specified in Section
3.07 (a) or (c), as applicable, shall also become immediately due and payable to
the extent permitted by law upon acceleration of the Notes.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies shall be
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF DEFAULTS.
The Holders of at least 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, except a continuing Default or Event of Default (i) in the payment
of the principal of,
55
premium, if any, or interest, on the Notes and (ii) in respect of a covenant or
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment.
In the event of any Event of Default specified in clause (f) of Section 6.01,
such Event of Default and all consequences of that Event of Default, including
without limitation any acceleration or resulting payment default, shall be
annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders of the Notes, if within 60 days after the Event of
Default arose:
(a) the Indebtedness that is the basis for the Event of Default has
been discharged;
(b) the holders of such Indebtedness have rescinded or waived the
acceleration, notice or action, as the case may be, giving rise to the
Event of Default; or
(c) the default that is the basis for such Event of Default has been
cured.
Upon any waiver of a Default or Event of Default, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed cured for
every purpose of this Indenture but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01, Section 7.02(f), Section 7.02(i) (including
the Trustee's receipt of the security or indemnification described therein) and
Section 7.07 hereof, in case an Event of Default shall occur and be continuing,
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes. The
Trustee shall be entitled to take any other action deemed proper by the Trustee
which is not inconsistent with such direction or this Indenture.
SECTION 6.06. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) such Holder has previously given to the Trustee written notice
of a continuing Event of Default or the Trustee receives the notice from
the Company,
(b) Holders of at least 25% in aggregate principal amount of the
Notes then outstanding have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee, and
(c) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a
written direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days.
The preceding limitations shall not apply to a suit instituted by a
Holder for enforcement of payment of principal of, and premium, if any, or
interest on, a Note on or after the respective due dates for such payments set
forth in such Note.
A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture (including
Section 6.06) other than as set forth in Article 12 hereof, the right of any
Holder to receive payment of principal, premium, if any, and interest on
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the Notes held by such Holder, on or after the respective due dates expressed in
the Notes (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 shall be authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest then due and owing
(together with interest on overdue principal and, to the extent lawful,
interest) and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee shall be authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee and 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, moneys, securities and any 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.
Subject to Article 12 hereof, if the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest 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.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.10.
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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 such suit of an undertaking to pay the costs of such suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by the
Company, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent 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:
(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) 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
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregate from other funds except
to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to TIA Section 315:
(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 any
such document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(d) 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.
(e) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee from the Company
or the Holders of 25% in aggregate principal amount of the outstanding
Notes, and such notice references the specific Default or Event of
Default, the Notes and this Indenture.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its power and duties hereunder.
(g) The Trustee shall have no duty to inquire as to the performance
of the Company's covenants herein.
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(i) The Trustee will 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 have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request
or direction.
(j) The rights, privileges, immunities and benefits given to the
Trustee hereunder, including without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed by the Trustee consistent with the terms of this Indenture
to act hereunder.
(k) Any permissive right or authority granted to the Trustee shall
not be construed as a mandatory duty.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee shall also be 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 or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting date
that complies with TIA 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) to the extent applicable. The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
shall be mailed to the Company and filed with the Commission 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 and any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee (in its capacity as Trustee)
or any predecessor Trustee (in its capacity as Trustee) against any and all
losses, claims, damages, penalties, fines, liabilities or expenses, including
incidental and out-of-pocket expenses and reasonable attorneys fees (for
purposes of this Article, "LOSSES") incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent such losses may be attributable to its
negligence, bad faith or willful misconduct. The Trustee shall notify the
Company
60
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, to the extent the Company has not been materially prejudiced thereby.
The Company shall defend the claim, and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel if the Trustee has been
reasonably advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Trustee to engage separate counsel, and the Company shall pay the reasonable
fees and expenses of such separate counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss incurred by the Trustee through the Trustee's own willful misconduct,
negligence or bad faith.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture, the resignation or removal of
the Trustee and payment in full of the Notes through the expiration of the
applicable statute of limitations.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, premium,
if any, and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(i) or (j) 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 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.
The Trustee may resign in writing at any time upon 30 days' prior
notice to the Company and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in aggregate principal amount
of the then outstanding Notes may remove the Trustee by so notifying the Trustee
and the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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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 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee; provided, however, that all sums owing to the Trustee
hereunder shall have been paid. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
In the case of an appointment hereunder of a separate or successor
Trustee with respect to the Notes, the Company, the Guarantors, any retiring
Trustee and each successor or separate Trustee with respect to the Notes shall
execute and deliver a supplemental indenture hereto (1) which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of any retiring Trustee with respect to the
Notes as to which any such retiring Trustee is not retiring shall continue to be
vested in such retiring Trustee and (2) that shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or banking association, the successor corporation or banking association without
any further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a Person
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million (or a wholly-owned subsidiary of a bank or trust company, or of a bank
holding company, the principal subsidiary of which is a bank or trust company
having a combined capital and surplus of at least $50.0 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.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 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, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE") and
each Guarantor shall be released from all of its obligations under its
Guarantee. For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all its other obligations under
the 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, and as more fully set
forth in such Section, payments in respect of the principal of, premium, if any,
or interest on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Article 2 and Sections 4.01 and
4.02, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's and the Guarantors' obligations in connection
therewith and (d) the provisions of this Article 8 relating to Legal Defeasance.
If the Company exercises under Section 8.01 the option applicable to this
Section 8.02, subject to the satisfaction of the conditions set forth in Section
8.04, payment of the Notes may not be accelerated because of an Event of
Default. Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 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, be released from its obligations
under the covenants contained in Sections 4.08 through 4.20 hereof, and the
operation of Section 5.01(a)(iv), 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 each Guarantor shall be released from
all of its obligations under its Guarantee with respect to such covenants in
connection with such outstanding Notes 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, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. If the
Company exercises under Section 8.01 the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04, payment
of the Notes may not be accelerated because of an Event of Default specified in
clause (c) (with respect to the covenants contained in Section 5.01(a)(iv)),
clause (d) (with respect to the covenants contained in Sections 4.09, 4.10, 4.12
and 4.17), clause (e) (with respect to the covenants contained in Sections 4.08
and 4.11 through 4.20), (f), (g), (h) and (i) (but in the case of (h) and (i) of
Section 6.01, with respect to Significant Subsidiaries only).
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SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 to the outstanding Notes.
Legal Defeasance or Covenant Defeasance may be exercised only if:
(a) the Company irrevocably deposits with the Trustee, in trust (the
"DEFEASANCE TRUST"), for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Securities, or a combination of cash in U.S.
dollars and non-callable U.S. Government Securities, in an amount
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, or premium, if any, and
interest on the outstanding Notes on the Stated Maturity or on the next
redemption date, as the case may be, and the Company shall specify whether
the Notes are being defeased to maturity or to such particular redemption
date;
(b) in the case of Legal Defeasance under Section 8.02 hereof, the
Company shall deliver to the Trustee an Opinion of Counsel to the Trustee
confirming that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) subsequent to
the Issue Date, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding 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;
(c) in the case of Covenant Defeasance under Section 8.03 hereof,
the Company shall deliver to the Trustee an Opinion of Counsel to the
Trustee confirming 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
or any Subsidiary is a party or by which the Company or any Subsidiary is
bound;
(f) the Company shall deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding such other
creditors; and
(g) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating
to the Legal Defeasance or the Covenant Defeasance have been complied
with.
SECTION 8.05. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06, all cash and non-callable U.S. Government
Securities (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 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
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Holders of all sums due and to become due thereon in respect of principal,
premium, if any, and interest but such cash and securities need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable U.S.
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any cash or non-callable U.S. Government Securities held by it as
provided in Section 8.04 which, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the certification delivered under
Section 8.04(a)), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
The Trustee shall promptly, and in any event, no later than five (5)
Business Days, pay to the Company after request therefor, any excess money held
with respect to the Notes at such time in excess of amounts required to pay any
of the Company's Obligations then owing with respect to the Notes.
Any cash or non-callable U.S. Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal, premium, if any, or interest on any Note and remaining
unclaimed for one year after such principal, premium, if any, or interest has
become due and payable shall be paid to the Company on its written request or
(if then held by the Company) shall be discharged from such trust; and the
Holder shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and securities, 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 cash and securities
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 cash and securities then remaining shall be repaid to
the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or
non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03,
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 until such time as the Trustee or Paying Agent is permitted
to apply all such cash and securities in accordance with Section 8.02 or 8.03,
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 to receive such payment from the cash and securities held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to:
65
(a) cure any ambiguity, defect or inconsistency;
(b) provide for uncertificated Notes in addition to or in place of
certificated Notes; provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code;
(c) provide for the assumption by a Surviving Person of the
obligations of the Company under this Indenture as contemplated by Article
5 hereof;
(d) make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
hereunder of any such Holder;
(e) provide for or confirm the issuance of Additional Notes in
accordance with this Indenture;
(f) to comply with any requirement of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(g) add additional Guarantees or additional obligors with respect to
the Notes or release Guarantors from Subsidiary Guarantees as permitted by
the terms of this Indenture; or
(h) secure the Notes.
Upon the request of the Company accompanied by a Board Resolution
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 will join with the Company and the Guarantors 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 will not be obligated to enter
into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture and the Notes
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding voting
as a single class (including, without limitation, consents obtained in
connection with a purchase of or tender offer or exchange offer for the Notes),
and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default
(except a continuing Default or Event of Default in (i) the payment of
principal, premium, if any, or interest on the Notes and (ii) in respect of a
covenant or provision which under this Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or
amendment) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes, including Additional Notes, if any, then
outstanding voting as a single class (including consents obtained in connection
with a purchase of or tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders as aforesaid and the documents described in Section 7.02
hereof, the Trustee will join with the Company and the Guarantors 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 will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
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(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of, or change the Stated Maturity of, any
Note or alter the provisions with respect to the redemption or repurchase
of the Notes relating to Section 4.17 (including the applicable
definitions);
(c) reduce the rate of, or change the time for payment of, interest,
if any, on, any Note;
(d) waive a Default or Event of Default in the payment of principal
of, or interest or premium, or Additional Interest, if any, on the Notes
(except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver
of the payment default that resulted from such acceleration);
(e) make any Note payable in currency other than that stated in the
Note;
(f) make any change in the provisions (including applicable
definitions) of this Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal of, or
interest or premium or Additional Interest, if any, on, such Holder's
Notes;
(g) waive a redemption or repurchase payment with respect to any
Note (including a payment required by the provisions of Section 4.12 and
Section 4.17 hereof);
(h) make any change in any Subsidiary Guarantees that would
adversely affect the Holders or release any Guarantor from any of its
obligations under its Subsidiary Guarantee or the Indenture, except in
accordance with the provisions of Article 10 hereof;
(i) make any change to Article 12 hereof (including applicable
definitions) that would adversely affect the Holders;
(j) make any change in this Section 9.02.
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
supplemental indenture. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holder of each Note affected
thereby to such Holder's address appearing in the Security Register 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.
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.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion thereof that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note or portion thereof if the Trustee receives written notice
of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver shall become effective in
accordance with its terms and thereafter shall bind every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
None of the Company nor any Guarantor may sign an amendment or supplemental
indenture until its board of directors (or committee serving a similar function)
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amended or supplemental
indenture is the legal, valid and binding obligations of the Company enforceable
against it in accordance with its terms, subject to customary exceptions and
that such amended or supplemental indenture complies with the provisions hereof
(including Section 9.03).
ARTICLE 10.
GUARANTEES
SECTION 10.01. GUARANTEE.
Subject to this Article 10, the Guarantors hereby unconditionally
guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns: (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, subject
to any applicable grace period, whether at Stated Maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on the overdue
principal of and premium, if any, 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 under this Indenture, the Registration Rights
Agreement or any other agreement with or for the benefit of the Holders or the
Trustee, all in accordance with the terms hereof and thereof; and (b) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall 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 pursuant to Section 6.02, redemption 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.
Each Guarantor hereby agrees that its obligations with regard to its
Guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company
68
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to:
(a) any right to require any of the Trustee, the Holders or the
Company (each a "BENEFITED PARTY"), as a condition of payment or
performance by such Guarantor, to
(1) proceed against the Company, any other guarantor
(including any other Guarantor) of the Obligations under the
Guarantees or any other Person,
(2) proceed against or exhaust any security held from the
Company, any such other guarantor or any other Person,
(3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in
favor of the Company or any other Person, or
(4) pursue any other remedy in the power of any Benefited
Party whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Company including any
defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Guarantees or any agreement
or instrument relating thereto or by reason of the cessation of the
liability of the Company from any cause other than payment in full of the
Obligations under the Guarantees;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) any defense based upon any Benefited Party's errors or omissions
in the administration of the Obligations under the Guarantees, except
behavior which amounts to bad faith;
(e) (1) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of the Guarantees
and any legal or equitable discharge of such Guarantor's obligations
hereunder,
(2) the benefit of any statute of limitations affecting such
Guarantor's liability hereunder or the enforcement hereof,
(3) any rights to set-offs, recoupments and counterclaims and
(4) promptness, diligence and any requirement that any
Benefited Party protect, secure, perfect or insure any security
interest or lien or any property subject thereto;
(f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of the Guarantees, notices of Default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension
or modification of the Obligations under the Guarantees or any agreement
related thereto, and notices of any extension of credit to the Company and
any right to consent to any thereof;
(g) to the extent permitted under applicable law, the benefits of
any "One Action" rule and
69
(h) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of the Guarantees. Except to the extent
expressly provided herein, including Sections 8.02, 8.03 and 10.05, each
Guarantor hereby covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in its
Guarantee and this Indenture.
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.
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 Section 6.02
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 Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY.
(a) 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 each Guarantor's
liability shall be that amount from time to time equal to the aggregate
liability of such Guarantor under the guarantee, but shall be limited to the
lesser of (a) the aggregate amount of the Company's obligations under the Notes
and this Indenture or (b) the amount, if any, which would not have (1) rendered
the Guarantor "insolvent" (as such term is defined in the Federal Bankruptcy
Code and in the Debtor and Creditor Law of the State of New York) or (2) left it
with unreasonably small capital at the time its guarantee with respect to the
Notes was entered into, after giving effect to the incurrence of existing Debt
immediately before such time; provided, however, it shall be a presumption in
any lawsuit or proceeding in which a Guarantor is a party that the amount
guaranteed pursuant to the guarantee with respect to the Notes is the amount
described in clause (a) above unless any creditor, or representative of
creditors of the Guarantor, or debtor in possession or Trustee in bankruptcy of
the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the
Guarantor is limited to the amount described in clause (b).
(b) In making any determination as to the solvency or sufficiency of
capital of a Guarantor in accordance with the proviso of Section 10.02(a), the
right of each Guarantor to contribution from other Guarantors and any other
rights such Guarantor may have, contractual or otherwise, shall be taken into
account.
SECTION 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Guarantee in substantially the form
included in Exhibit E attached hereto shall be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its President or one
of its Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
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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.
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.
The Company hereby agrees that it shall cause each Person that
becomes obligated to provide a Guarantee pursuant to Section 4.18 to execute a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, pursuant to which such Person provides the guarantee set forth in this
Article 10 and otherwise assumes the obligations and accepts the rights of a
Guarantor under this Indenture, in each case with the same effect and to the
same extent as if such Person had been named herein as a Guarantor. The Company
also hereby agrees to cause each such new Guarantor to evidence its guarantee by
endorsing a notation of such guarantee on each Note as provided in this Section
10.03.
SECTION 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 10.05, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
Surviving Person) another Person whether or not affiliated with such Guarantor
unless:
(a) subject to Section 10.05, the Person formed by or surviving any
such consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to
a supplemental indenture in form and substance reasonably satisfactory to
the Trustee, under this Indenture, the Guarantee and any Registration
Rights Agreements on the terms set forth herein or therein; and
(b) the Guarantor complies with the requirements of Article 5
hereof.
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 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 this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the 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 this
Indenture as the Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Guarantees had been issued at
the date of the execution hereof.
Except as set forth in Articles 4 and 5, and notwithstanding clauses
(a) and (b) above, nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
SECTION 10.05. RELEASES FOLLOWING MERGER, CONSOLIDATION OR SALE OF ASSETS, ETC.
In the event of a sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Guarantor, in each case to a Person that is not (either before or after giving
effect to such transactions) a Restricted Subsidiary of the Company, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the Capital Stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) shall
be released and relieved of any obligations under its Guarantee; provided that
the net proceeds of such sale or other disposition shall be applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section
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4.12. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary in
accordance with the provisions of Section 4.16, such Subsidiary shall be
released and relieved of any obligations under its Subsidiary Guarantee. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of this Indenture, including
without limitation Section 4.12, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.
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 10.
ARTICLE 11.
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE.
This Indenture shall be discharged and shall cease to be of further
effect, except as to surviving rights of registration of transfer or exchange of
the Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been previously authenticated and
delivered (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has previously
been deposited in trust or segregated and held in trust by the
Company and is thereafter repaid to the Company or discharged from
the trust) have been delivered to the Trustee for cancellation; or
(ii) all notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of
a notice of redemption or otherwise or will become due and payable
within one year, and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, non-callable U.S.
Government Securities, or a combination of cash in U.S. dollars and
non-callable U.S. Government Securities, 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
Additional Interest, if any, and accrued interest to the date of
maturity or redemption;
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or
any other Guarantor is a party or by which the Company or any other
Guarantor is bound;
(c) the Company has paid or caused to be paid all sums payable by it
hereunder;
(d) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at
Stated Maturity or the redemption date, as the case may be; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel stating that all conditions precedent
relating to the satisfaction and discharge of this Indenture have been
satisfied.
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SECTION 11.02. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 11.03, all cash and non-callable U.S. Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 11.02, the
"Trustee") pursuant to Section 11.01 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest but
such cash and securities need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed or assessed against the Trustee with respect to money
deposited with the Trustee pursuant to Section 11.01 hereof.
SECTION 11.03. REPAYMENT TO COMPANY.
Any cash or non-callable U.S. Government Securities 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 shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and securities, 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 cash and securities
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 cash and securities then remaining shall be repaid to
the Company.
ARTICLE 12.
SUBORDINATION
SECTION 12.01. AGREEMENT TO SUBORDINATE.
The Company and each Guarantor agrees, and each Holder by accepting
a Note agrees, that the Indebtedness evidenced by, and all "payments" on and
"distributions" on or with respect to, the Notes (including any obligation to
repurchase the Notes) and any Subsidiary Guarantees, is subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full in cash of all Senior Debt (including interest, fees and
expenses accruing on or after the commencement of any bankruptcy proceeding
whether or not post-filing interest is allowed in such proceeding at the rate as
specified in the documents evidencing the applicable Senior Debt outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed). This
Article 12 shall constitute a continuing agreement with all Persons who become
holders of, or continue to hold Senior Debt, and such provisions are made for
the benefit of the holders of Senior Debt.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution of the assets of the Company or a
Guarantor to creditors of the Company or the relevant Guarantor (1) in a
liquidation or dissolution of the Company or the relevant Guarantor, (2) in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or the relevant Guarantor or its respective property,
(3) in an assignment for the benefit of creditors of the Company or the relevant
Guarantor or (4) any marshaling of assets and liabilities of the Company or the
relevant Guarantor, the holders of Senior Debt shall be entitled to receive
payment in full in cash of all Obligations due in respect of such Senior Debt
(including interest, fees and expenses accruing on or after the commencement of
any bankruptcy
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proceeding whether or not post-filing interest is allowed in such proceeding at
the rate specified in the documents evidencing the applicable Senior Debt),
before the Holders shall be entitled to receive any payment with respect to the
Notes or Subsidiary Guarantees, and until all Obligations with respect to Senior
Debt are paid in full in cash, any payment or distribution to which the Holders
would be entitled but for this Article 12 shall be made to the holders of Senior
Debt (except that Holders may receive and retain Permitted Junior Securities and
payments made from the trust described under Article 8 or Section 11.02 if such
funds were deposited in accordance with, and to the extent permitted by, this
Article 12).
SECTION 12.03. DEFAULT ON DESIGNATED SENIOR DEBT.
(a) Neither the Company nor any Guarantor may make any payment in
respect of the Notes (except in Permitted Junior Securities or from the trust
described under Article 8 hereof) if:
(1) a payment Default on Designated Senior Debt occurs and is
continuing beyond any applicable grace period; or
(2) any other default occurs and is continuing on any series
of Designated Senior Debt that permits holders of that series of
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of such other default (a "PAYMENT BLOCKAGE
NOTICE") from the Company or (i) with respect to Designated Senior
Debt arising under the Credit Agreement, from the agent for the
lenders thereunder, or (ii) with respect to any other Designated
Senior Debt, from the holders of any such Designated Senior Debt.
(b) Payments on the Notes or the guarantees may and shall be
resumed:
(1) in the case of a payment Default on Designated Senior
Debt, upon the earlier of (i) the date on which such default is
cured or waived or (ii) the date on which such Designated Senior
Debt has been discharged and paid in full; and
(2) in the case of a nonpayment Default on Designated Senior
Debt, upon the earliest of (i) the date on which such nonpayment
Default is cured or waived, (ii) 179 days after the date on which
the applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Debt has been accelerated, (iii)
the date on which such payment blockage period shall have been
terminated by written notice to the Trustee by the party initiating
such payment blockage period or (iv) the date on which such
Designated Senior Debt has been discharged or paid in full in cash.
(c) No new Payment Blockage Notice shall be delivered unless and
until (i) 360 days have elapsed since the delivery of the immediately prior
Payment Blockage Notice and (ii) all scheduled payments of principal, interest
and premium on the Notes that have come due have been paid in full in cash. No
nonpayment default on Designated Senior Debt that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee shall be, or
can be made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been waived for a period of not less than 90 days. Following
the expiration of any period during which the Company or the Guarantors are
prohibited from making payments on the Notes pursuant to a Payment Blockage
Notice, the Company or the Guarantors shall be obligated to resume making any
and all required payments in respect of the Notes, including any missed
payments, unless a payment default on Designated Senior Debt exists or the
maturity of any Designated Senior Debt has been accelerated, and such
acceleration remains in full force and effect.
(d) The Company shall give prompt written notice to the Trustee of
any default in the payment of any Senior Debt or any acceleration under any
Senior Debt or under any agreement pursuant to which Senior Debt may have been
issued. Failure to give such notice shall not affect the subordination of the
Notes to the Senior Debt or the application of the other provisions provided in
this Article 12.
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(e) So long as any Indebtedness is outstanding under the Credit
Agreement, only the agent under such Credit Agreement shall be permitted to
deliver a Payment Blockage Notice or to otherwise act as the Representative of
the holders of Designated Senior Debt.
SECTION 12.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt (including,
without limitation, the agent under the Credit Agreement) or the Representative
of the acceleration.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives or is holding, or any Holder
receives, any payment with respect to the Notes or any Subsidiary Guarantee of
the Notes (other than in Permitted Junior Securities or from the trust described
under Article 8 hereof), when (i) such payment is prohibited by Section 12.02 or
12.03 hereof and (ii) the Trustee or the Holder has actual knowledge that the
payment is prohibited, such payment or distribution shall be held by the Trustee
or such Holder, in trust for the benefit of, and shall be paid forthwith over
and delivered to, the holders of Senior Debt as their interests may appear or
their Representative under the Credit Agreement or other agreement (if any)
pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to the Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in cash in accordance with their terms, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 12, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall mistakenly pay over or distribute to or on behalf of Holders or
the Company, any Guarantor, or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 12, unless a
Responsible Officer of the Trustee has received a Payment Blockage Notice and
such payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
SECTION 12.06. NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes or guarantees to violate this Article 12, but failure
to give such notice shall not affect the subordination of the Notes or the
guarantees to the Senior Debt as provided in Article 12.
SECTION 12.07. SUBROGATION.
After all Senior Debt is paid in full in cash and until the Notes
are paid in full, Holders shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt. A distribution made
under this Article 12 to holders of Senior Debt that otherwise would have been
made to Holders is not, as between the Company and Holders, a payment by the
Company on the Notes.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 12 shall have been
applied, pursuant to the provisions of this Article 12, to the payment of all
amounts payable under the Senior Debt, then and in such case the Holders shall
be entitled to receive from the holders of such Senior Debt at the time
outstanding any payments or distributions received by such holders of such
Senior Debt in excess of the amount sufficient to pay all amounts payable under
or in respect of such Senior Debt in full in cash; provided, however, that such
payments or distributions shall be paid first pro rata to Holders that
previously paid amounts and then pro rata to all Holders.
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SECTION 12.08. RELATIVE RIGHTS.
This Article 12 defines the relative rights of Holders and holders
of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the Obligation of
the Company, which is absolute and unconditional, to pay principal,
premium and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(c) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to
Holders.
If the Company fails because of this Article 12 to pay principal,
premium and interest on a Note on the due date, the failure is still a Default.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Debt 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 by the failure of the Company to comply with
this Indenture.
Subject to the other provisions of this Indenture, the holders of
the Senior Debt may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders, without incurring responsibility to the
Holders, and without impairing or releasing the subordination provided in this
Article 12, or the obligations hereunder of the Holders to the holders of the
Senior Debt, do any one or more of the following: (a) change in the manner,
place, or terms of payment, or extend the time of payment of, or renew or alter,
Senior Debt or any instrument evidencing the same or any agreement under which
the Senior Debt is outstanding or secured; (b) sell, exchange, release, or
otherwise deal with any property pledged, mortgaged, or otherwise securing the
Senior Debt; (c) release any Person liable in any manner for the collection of
Senior Debt; and (d) exercise or refrain from exercising any rights against the
Company, the Guarantor or any other Person; provided, however, that this
provision shall not in any way permit the Company or any Guarantor to take any
action otherwise prohibited by this Indenture.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company or any
Guarantor referred to in this Article 12, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of the Representative for the purpose of
ascertaining the Persons entitled to participate in such distribution (so long
as the existence of the subordination provisions of this Article 12 have been
brought to the attention of such court or Representative), the holders of the
Senior Debt 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 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge or
notice of the existence of any facts that would prohibit the making of any
payment to or distribution by the Trustee, and the Trustee and the Paying Agent
may continue to make payments on the Notes, unless and until the Trustee shall
have received at the Corporate Trust Office of the Trustee
76
no later than three (3) Business Days prior to the due date of such payment
written notice of facts that would cause the payment of any principal, premium
and interest with respect to the Notes to violate this Article 12 and, prior to
the receipt of any such written notice, the Trustee, shall be entitled in all
respects conclusively to presume that no such fact exists. Unless the Trustee
shall have received the notice provided for in the preceding sentence, the
Trustee shall have full power and authority to receive such payment and to apply
the same to the purpose for which it was received, and shall not be affected by
any notice to the contrary which may be received by it on or after such date.
Only the Company or a Representative may give the notice. Nothing in this
Article 12 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to acknowledge and effectuate the subordination as
provided in this Article 12, and appoints the Trustee to act as the 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, a Representative of Designated Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes and the Trustee shall have no liability therefor.
SECTION 12.13. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Securities held in trust under
Article 8 or Section 11.02 hereof by the Trustee (or other qualifying trustee)
not in violation of Section 12.03 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Debt or subject to the restrictions set forth in
this Article 12, and none of the Holders shall be obligated to pay over any such
amount to the Issuers or any Holder of Senior Debt or any other creditor of the
Company.
SECTION 12.14. PAYMENT AND DISTRIBUTION.
For purposes of this Article 12, the term "payment" and/or
"distribution" means any payment or distribution (whether direct or indirect,
whether in cash, property, securities, or otherwise, and whether obtained or
distributed by set-off, liquidation, bankruptcy distribution, settlement, or
otherwise) made by any Person (including, without limitation, any payments or
distributions made pursuant to Section 4.17 or by any court or governmental body
or agency, any trustee in bankruptcy, or any liquidating trustee) with respect
to any Note or any guarantees or otherwise under this Indenture, including,
without limitation, payment of principal, premium or interest, on the Notes or
any payments under or with respect to any note guarantees, any depositing of
funds with the Trustee or any Paying Agent (including, without limitation, a
deposit in respect of defeasance or redemption, any payment on account of any
optional or mandatory redemptions or repurchase provisions, any payment or
recovery on any claim under this Indenture, any note guarantees, any Note, or
relating to or arising out of the offer, sale, or purchase of any Note (whether
for rescission or damages and whether based on contract, tort, duty imposed by
law, or any other theory of liability); provided that, for the purposes of this
Article 12, all Obligations now or hereafter existing under any Senior Debt,
(including, without limitation, the Credit Agreement, any Hedging Obligations or
agreements with respect to the issuance of letters of credit) shall not be
deemed to have been paid in full unless the holders thereof shall have received
payment in full and all commitments thereunder and all letters of credit issued
thereunder have expired.
SECTION 12.15. NO CLAIMS.
No Holder shall have any claim to any property or assets of the
Company, any Guarantor, or any Subsidiary of the Company or any Guarantor,
unless and until the Senior Debt shall have been fully paid in cash.
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SECTION 12.16. ACKNOWLEDGEMENT OF HOLDERS.
Each Holder by accepting a Note or a guarantee acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and consideration to each holder of Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the Notes or
the guarantees, to acquire and continue to hold, or to continue to hold, such
Senior Debt, and such holder of Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Senior Debt.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the provision required by the TIA shall control.
SECTION 13.02. NOTICES.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first
class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next-day delivery, to the
other's address:
If to the Company:
Psychiatric Solutions, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxx, Esq.
Telecopier No.: (615) 244-
If to the Trustee:
Wachovia Bank, National Association
NC5780
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee
or 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 sent by
facsimile transmission; and
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the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next-day delivery. All notices and communications to
the Trustee or Holders shall be deemed duly given and effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
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 their 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.
Upon any request or application by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 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 complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
79
With respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate, certificates of public officials or reports or opinions of experts.
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 of 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 and release
may not be effective to waive or release liabilities under the federal
securities laws.
SECTION 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 13.10. SUCCESSORS.
All covenants and agreements of the Company in this Indenture and
the Notes shall bind its successors. All covenants and agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
SECTION 13.14. QUALIFICATION OF THIS INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of any Registration Rights Agreement and shall pay
all reasonable costs and expenses (including
80
attorneys' fees and expenses for the Company, the Trustee and the Holders)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
[Signatures on following page]
81
SIGNATURES
Dated as of July 6, 2005
PSYCHIATRIC SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
GUARANTORS:
PSYCHIATRIC SOLUTIONS HOSPITALS, INC.
INFOSCRIBER CORPORATION
COLLABORATIVE CARE CORPORATION
PSYCHIATRIC SOLUTIONS OF ALABAMA, INC.
PSYCHIATRIC SOLUTIONS OF TENNESSEE, INC.
SOLUTIONS CENTER OF LITTLE ROCK, INC.
PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC.
PSI COMMUNITY MENTAL HEALTH AGENCY
MANAGEMENT, INC.
PSYCHIATRIC MANAGEMENT RESOURCES, INC.
PSI-EAP, INC.
SUNSTONE BEHAVIORAL HEALTH, INC.
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
PSI CEDAR SPRINGS HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF OKLAHOMA, INC.
AERIES HEALTHCARE CORPORATION
AERIES HEALTHCARE OF ILLINOIS, INC.
PSI HOSPITALS, INC.
PSYCHIATRIC PRACTICE MANAGEMENT OF ARKANSAS,
INC.
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
HAVENWYCK HOSPITAL INC.
H.C. CORPORATION
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
RAMSAY MANAGED CARE, INC.
RAMSAY TREATMENT SERVICES, INC.
PREMIER BEHAVIORAL SOLUTIONS, INC.
PREMIER BEHAVIORAL SOLUTIONS OF ALABAMA, INC.
PREMIER BEHAVIORAL SOLUTIONS OF FLORIDA, INC.
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
PSYCHIATRIC SOLUTIONS OF SOUTH CAROLINA, INC.
RHCI SAN ANTONIO, INC.
TRANSITIONAL CARE VENTURES, INC.
TRANSITIONAL CARE VENTURES (TEXAS), INC.
BRENTWOOD ACQUISITION, INC.
BRENTWOOD ACQUISITION-SHREVEPORT, INC.
CANYON RIDGE HOSPITAL, INC.
LAURELWOOD CENTER, INC.
PEAK BEHAVIORAL HEALTH SERVICES, INC.
PSI PRIDE INSTITUTE, INC.
PSI SUMMIT HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF ARIZONA, INC.
PSYCHIATRIC SOLUTIONS OF LEESBURG, INC.
PSYCHIATRIC SOLUTIONS OF VIRGINIA, INC.
TUCSON HEALTH SYSTEMS, INC.
WHISPER RIDGE OF STAUNTON, INC.
FORT LAUDERDALE HOSPITAL, INC.
XXXXXXXXX HOLDINGS, INC.
ARDENT HEALTH SERVICES, INC.
BEHAVIORAL HEALTHCARE CORPORATION
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR CREST RTC, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC CLINICAS DEL ESTE HOSPITAL, INC.
BHC COLUMBUS HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FORT LAUDERDALE HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREMONT HOSPITAL, INC.
BHC GULF COAST MANAGEMENT GROUP, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOSPITAL HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC MANAGEMENT HOLDINGS, INC.
BHC MILLWOOD HOSPITAL, INC.
BHC MONTEVISTA HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC PACIFIC GATEWAY HOSPITAL, INC.
BHC PACIFIC SHORES HOSPITAL, INC.
BHC PACIFIC VIEW RTC, INC.
BHC PINNACLE POINTE HOSPITAL, INC.
BHC PROPERTIES, INC.
BHC XXXX HOSPITAL, INC.
BHC SAN XXXX CAPESTRANO HOSPITAL, INC.
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
BHC STREAMWOOD HOSPITAL, INC.
BHC XXXXX VISTA HOSPITAL, INC.
BHC VISTA DEL MAR HOSPITAL, INC.
BHC WINDSOR HOSPITAL, INC.
COMMUNITY PSYCHIATRIC CENTERS OF TEXAS, INC.
INDIANA PSYCHIATRIC INSTITUTES, INC.
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
THERAPEUTIC SCHOOL SERVICES, LLC
PSI TEXAS HOSPITALS, LLC
XXXXXXXXX REGIONAL HOSPITAL ACQUISITION, LLC
PSI CROSSINGS, LLC
PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C
PALMETTO LOWCOUNTRY BEHAVIORAL HEALTH, L.L.C.
PALMETTO PEE DEE BEHAVIORAL HEALTH, L.L.C.
AHS CUMBERLAND HOSPITAL, LLC
BHC CANYON RIDGE HOSPITAL, LLC
BHC MANAGEMENT SERVICES, LLC
BHC MANAGEMENT SERVICES OF INDIANA, LLC
BHC MANAGEMENT SERVICES OF KENTUCKY, LLC
BHC MANAGEMENT SERVICES OF LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF PENNSYLVANIA, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC
BHC MANAGEMENT SERVICES OF TULSA, LLC
BHC MESILLA VALLEY HOSPITAL, LLC (F/K/A BHC
NEWCO 1, LLC)
BHC NEWCO 2, LLC
BHC NEWCO 3, LLC
BHC NEWCO 4, LLC
BHC NEWCO 5, LLC
BHC NEWCO 6, LLC
BHC NEWCO 7, LLC
BHC NEWCO 8, LLC
BHC NEWCO 9, LLC
BHC NEWCO 10, LLC
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC PHYSICIAN SERVICES OF KENTUCKY, LLC
COLUMBUS HOSPITAL , LLC
LEBANON HOSPITAL, LLC
NORTHERN INDIANA HOSPITAL, LLC
XXXXX VISTA, LLC
WILLOW SPRINGS, LLC
RED ROCK SOLUTIONS, LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
H.C. PARTNERSHIP
BY: H.C. CORPORATION, AS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BY: HSA HILL CREST CORPORATION, AS GENERAL
PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
MILLWOOD HOSPITAL, L.P.
TEXAS CYPRESS CREEK HOSPITAL, L.P.
TEXAS WEST OAKS HOSPITAL, L.P.
NEURO INSTITUTE OF AUSTIN, L.P.
TEXAS XXXXXX XXXXX HOSPITAL, L.P.
TEXAS OAKS PSYCHIATRIC HOSPITAL, L.P.
TEXAS SAN MARCOS TREATMENT CENTER, L.P.
BY: PSI TEXAS HOSPITALS, LLC, AS GENERAL
PARTNER
BY: PSYCHIATRIC SOLUTIONS HOSPITAL, INC., AS
SOLE MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BHC OF INDIANA GENERAL PARTNERSHIP
BY: BHC COLUMBUS HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC XXXXX VISTA HOSPITAL, INC., ITS PARTNERS
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BLOOMINGTON XXXXXXX, X.X.
BY: BHC OF INDIANA GENERAL PARTNERSHIP, ITS
PARTNER
BY: BHC COLUMBUS HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC XXXXX VISTA HOSPITAL, INC., ITS PARTNERS
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BY: INDIANA PSYCHIATRIC INSTITUTES, INC., ITS
PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
MESILLA VALLEY GENERAL PARTNERSHIP
BY: MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH
ASSOCIATES, INC., ITS PARTNERS
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
TRUSTEE:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: AVP
EXHIBIT A
================================================================================
(Face of Note)
7.75% SENIOR SUBORDINATED NOTES DUE 2015
CUSIP _____________
NO.___ $_____________
PSYCHIATRIC SOLUTIONS, INC.
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on July 15, 2015.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Dated: ______________, 20[ ].
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officer.
PSYCHIATRIC SOLUTIONS, INC.
By:____________________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:___________________________
Authorized Signatory
Dated _____________, 20__
(Back of Note)
7.75% SENIOR SUBORDINATED NOTES DUE 2015
[Insert the Global Note Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the terms of the
Indenture]
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. PSYCHIATRIC SOLUTIONS, INC., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Note at
7.75% per annum until maturity and shall pay Additional Interest, if any, as
provided in Section 5 of the Registration Rights Agreement. The Company shall
pay interest semi-annually on January 15 and July 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from [_______], 2005; provided, however, that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be the first of January 15
or July 15 to occur after the date of issuance, unless such January 15 or July
15 occurs within one calendar month of such date of issuance, in which case the
first Interest Payment Date shall be the second of January 15 and July 15 to
occur after the date of issuance. 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 at a rate that is 1% per annum
in excess of the interest rate then in effect under the Indenture and this Note;
it shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Additional Interest,
if any (without regard to any applicable grace periods), from time to time at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the January 1 or
July 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest and Additional Interest, if any, at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the Security Register; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
interest and Additional Interest, if any, and premium, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the 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, Wachovia Bank, National
Association, 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
July 6, 2005 ("INDENTURE") among the Company, the guarantors party thereto (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 (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Paragraph 5,
the Notes will not be redeemable at the option of the Company prior to July 15,
2010. Starting on that date, the Company may redeem all or a portion of the
Notes, at once or over time, after giving the required notice under the
Indenture at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Additional
Interest, if any, on the Notes redeemed, to the applicable redemption date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period commencing on July 15 of the years indicated
below:
Year Percentage
----------
2010............................................................................................. 103.875%
2011............................................................................................. 102.583%
2012............................................................................................. 101.292%
2013 and thereafter.............................................................................. 100.000%
(b) At any time and from time to time prior to July 15, 2008, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
(including Additional Notes) issued under this Indenture at a redemption price
(expressed as a percentage of principal amount) equal to 107.750% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date) with the net cash proceeds of any Equity
Offering of common stock of the Company; provided, however, that (i) at least
65% of the aggregate principal amount of the Notes initially issued under this
Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after giving effect to such redemption and (ii) any such
redemption shall be made within 120 days of such Equity Offering.
(c) At any time prior to July 15, 2010, the Company may redeem all
or any portion of the Notes, at once or over time, after giving the required
notice under the indenture at a redemption price equal to the greater of:
(i) 100% of the principal amount of the notes to be redeemed, and
(ii) the sum of the present values of (1) the redemption price of
the notes at July 15, 2010 (as set forth above) and (2) the
remaining scheduled payments of interest from the redemption
date through July 15, 2010, but excluding accrued and unpaid
interest through the redemption date, discounted to the
redemption date (assuming a 360 day year consisting of twelve
30 day months), at the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest, including Additional
Interest, if any, to but excluding the redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
(d) Any notice to holders of Notes of such a redemption shall
include the appropriate calculation of the redemption price, but need not
include the redemption price itself. The actual redemption price, calculated as
described above, shall be set forth in an Officers' Certificate delivered to the
Trustee no later than two business days prior to the redemption date.
(e) Any prepayment pursuant to this paragraph shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and 4.17 of
the Indenture, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to, or Offer to Purchase, the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(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 of $1,000) of such Holder's Notes (a "CHANGE OF
CONTROL OFFER") at a purchase price, in cash, equal to 101% of the aggregate
principal amount of the Notes repurchased, plus accrued and unpaid interest and
Additional Interest, if any, on the Notes repurchased to the purchase date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest to, but excluding, the Purchase Date).
(b) If the Company or one of its Restricted Subsidiaries consummates
any Asset Sales, any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.12 of the Indenture will constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $7.5 million,
the Company will make an offer to all Holders of Notes to purchase the maximum
principal amount of Notes and, if the Company is required to do so under the
terms of any other Indebtedness that is pari passu with the Notes, such other
Indebtedness on a pro rata basis with the Notes, that may be purchased out of
the Excess Proceeds (an "ASSET SALE OFFER"). The offer price in any Asset Sale
Offer will be equal to 100% of principal amount plus accrued and unpaid interest
and Additional Interest, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after consummation of the purchase of all
properly tendered and not withdrawn Notes pursuant to an Asset Sale Offer, the
Company may use such remaining Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Holders
of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
This Note shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed hereon and the aggregate principal amount of Notes
represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. 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 need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption, or during the period
between a record date (including a Regular Record Date) and the next succeeding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Company, the Guarantors and the Trustee may amend or supplement the Indenture
and the Notes with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, including Additional
Notes, if any, then outstanding voting as a single class (including, without
limitation, consents obtained in connection with a purchase of or tender offer
or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 of the
Indenture, any existing Default or Event of Default (except a continuing Default
or Event of Default in (i) the payment of principal, premium, if any, or
interest on the Notes and (ii) in respect of a covenant or provision which under
the Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such
modification or amendment) or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes, including Additional Notes, if any,
then outstanding voting as a single class (including consents obtained in
connection with a purchase of or tender offer or exchange offer for the Notes).
Without the consent of any Holder, the Company, the Guarantors and
the Trustee may amend or supplement the Indenture or the Notes to (a) cure any
ambiguity, defect or inconsistency, (b) provide for uncertificated Notes in
addition to or in place of certificated Notes, provided that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code; (c) provide for the assumption by a Surviving Person
of the obligations of the Company under the Indenture as contemplated by Article
5 of the Indenture, (d) make any change that would provide any additional rights
or benefits to the Holders or that does not adversely affect the legal rights
under the Indenture of any such Holder, (e) provide for or confirm the issuance
of Additional Notes, (f) comply with any requirement of the Commission in order
to effect or maintain the qualification of the Indenture under the TIA, (g) add
additional Guarantees or additional obligors with respect to the Notes or
release Guarantors from Guarantees as permitted by the terms of the Indenture or
(h) secure the Notes.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default
under the Indenture: (a) default for 30 days in the payment when due of interest
on, or Additional Interest with respect to, the Notes; (b) default in the
payment when due of the principal of, or premium, if any, on, any of the Notes
when the same becomes due and payable at its Stated Maturity, upon acceleration,
redemption, optional redemption, required repurchase or otherwise (whether or
not prohibited by Article 12 of the Indenture); (c) failure by the Company or
any Restricted Subsidiary to comply with Section 5.01 of the Indenture; (d)
failure by the Company or any Restricted Subsidiary to comply with Section 4.09,
4.10, 4.12 or Section 4.17 of the Indenture, and such failure continues for 30
days after written notice is given to the Company as provided in the Indenture;
provided, however, that a default under the Existing Senior Subordinated Notes
arising as a result of the failure of the Company to comply with Section 4.09 or
Section 4.10 of the Indenture shall be a default under Section 4.09 or Section
4.10 of the Indenture as applicable notwithstanding the 30-day grace period
provided for in this clause (d); (e) failure by the Company or any Restricted
Subsidiary to comply with any other covenant or agreement in the Notes or in the
Indenture (other than a failure that is the subject of the foregoing clause (a),
(b), (c) or (d)), and such failure continues for 60 days after written notice is
given to the Company as provided in the Indenture; (f) a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any Restricted Subsidiary (or the payment of which is guaranteed by
the Company or any Restricted Subsidiary) whether such Indebtedness or Guarantee
now exists, or is created after the date of the Indenture, if that default (i)
is caused by a failure to pay principal of, or interest or premium, if any, on
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "PAYMENT DEFAULT"), or (ii) results
in the acceleration of such Indebtedness prior to its express maturity, and in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$5.0 million or more so long as the Existing Senior Subordinated Notes are
remain outstanding, and $10.0 million or more thereafter; (g) failure by the
Company or any Restricted Subsidiary to pay final judgments aggregating in
excess of $5.0 million, so long as the Existing Senior Subordinated Notes are
remain outstanding, and $10.0 million or more thereafter, which judgments are
not paid, discharged or stayed for a period of 60 days; (h) except as permitted
by the Indenture, any Subsidiary Guarantee of a Guarantor shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor shall deny or disaffirm its
obligations under its Subsidiary Guarantee; and (i) certain events of
bankruptcy, insolvency or reorganization affecting the Company or any of its
Significant Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency described in the Indenture, all outstanding Notes shall become due
and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest or Additional Interest) if it determines that withholding notice is in
their interest. The Holders of
a majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture,
except a continuing Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on, the Notes and (ii) in respect of
a covenant or provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or
amendment. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
13. SUBORDINATION. Payment of principal, interest and premium and
Additional Interest, if any, on the Notes is subordinated to the prior payment
of Senior Debt on the terms provided in the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations, the
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Indenture, the Notes, the Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes that are Initial Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of July 6, 2005, between the Company and
the parties named on the signature pages thereto or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall
have the rights set forth in one or more registration rights agreement, if any,
among the Company and the other parties thereto, relating to rights given by the
Company to the purchasers of any Additional Notes.
19. 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 has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Psychiatric Solutions, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
20. GOVERNING LAW. The internal law of the State of New York shall govern
and be used to construe this Note without giving effect to applicable principals
of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.12 or 4.17 of the Indenture, check the box below:
[ ] Section 4.12
[ ] Section 4.17
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, state the amount you
elect to have purchased: $_____________________
Date:____________________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:
_______________________________________________
SIGNATURE GUARANTEE:
_______________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or other tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ______________
Your Signature:________________________________
(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee:__________________________*
* Participant in a recognized Signature Guarantee Medallion Program.
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 of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- ------------------- --------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE ...................................... 1
Section 1.01. Definitions ....................................................... 1
Section 1.02. Other Definitions ................................................. 18
Section 1.03. Incorporation by Reference of Trust Indenture Act ................. 18
Section 1.04. Rules of Construction ............................................. 19
ARTICLE 2. THE NOTES ....................................................................... 19
Section 2.01. Form and Dating ................................................... 19
Section 2.02. Execution and Authentication ...................................... 20
Section 2.03. Registrar and Paying Agent ........................................ 21
Section 2.04. Paying Agent to Hold Money in Trust ............................... 21
Section 2.05. Holder Lists ...................................................... 21
Section 2.06. Transfer and Exchange ............................................. 21
Section 2.07. Replacement Notes ................................................. 31
Section 2.08. Outstanding Notes ................................................. 32
Section 2.09. Treasury Notes .................................................... 32
Section 2.10. Temporary Notes ................................................... 32
Section 2.11. Cancellation ...................................................... 32
Section 2.12. Payment of Interest; Defaulted Interest ........................... 33
Section 2.13. CUSIP or ISIN Numbers ............................................. 33
Section 2.14. Additional Interest ............................................... 33
Section 2.15. Issuance of Additional Notes ...................................... 33
Section 2.16. Record Date ....................................................... 34
ARTICLE 3. REDEMPTION AND PREPAYMENT ....................................................... 34
Section 3.01. Notices to Trustee ................................................ 34
Section 3.02. Selection of Notes to Be Redeemed ................................. 34
Section 3.03. Notice of Redemption .............................................. 34
Section 3.04. Effect of Notice of Redemption .................................... 35
Section 3.05. Deposit of Redemption Price ....................................... 35
Section 3.06. Notes Redeemed in Part ............................................ 36
Section 3.07. Optional Redemption ............................................... 36
Section 3.08. Mandatory Redemption .............................................. 37
Section 3.09. Offer To Purchase ................................................. 37
ARTICLE 4. COVENANTS ....................................................................... 39
Section 4.01. Payment of Notes .................................................. 39
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.02. Maintenance of Office or Agency ................................... 39
Section 4.03. Reports ........................................................... 40
Section 4.04. Compliance Certificate ............................................ 40
Section 4.05. Taxes ............................................................. 41
Section 4.06. Stay, Extension and Usury Laws .................................... 41
Section 4.07. Corporate Existence ............................................... 41
Section 4.08. Payments for Consent .............................................. 41
Section 4.09. Incurrence of Additional Debt and Issuance of Capital Stock ....... 41
Section 4.10. Restricted Payments ............................................... 44
Section 4.11. Liens ............................................................. 46
Section 4.12. Asset Sales ....................................................... 46
Section 4.13. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries ...................................................... 47
Section 4.14. Affiliate Transactions ............................................ 49
Section 4.15. Issuances and Sales of Capital Stock of Restricted Subsidiaries ... 49
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries ........... 50
Section 4.17. Repurchase at the Option of Holders Upon a Change of Control ...... 50
Section 4.18. Future Subsidiary Guarantors ...................................... 51
Section 4.19. Business Activities ............................................... 51
Section 4.20. Limitation on Layering ............................................ 51
ARTICLE 5. SUCCESSORS ...................................................................... 52
Section 5.01. Merger, Consolidation or Sale of Assets ........................... 52
Section 5.02. Successor Corporation Substituted ................................. 52
ARTICLE 6. DEFAULTS AND REMEDIES ........................................................... 53
Section 6.01. Events of Default ................................................. 53
Section 6.02. Acceleration ...................................................... 54
Section 6.03. Other Remedies .................................................... 55
Section 6.04. Waiver of Defaults ................................................ 55
Section 6.05. Control by Majority ............................................... 56
Section 6.06. Limitation on Suits ............................................... 56
Section 6.07. Rights of Holders to Receive Payment .............................. 56
Section 6.08. Collection Suit by Trustee ........................................ 57
Section 6.09. Trustee May File Proofs of Claim .................................. 57
Section 6.10. Priorities ........................................................ 57
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.11. Undertaking for Costs ............................................. 58
ARTICLE 7. TRUSTEE ......................................................................... 58
Section 7.01. Duties of Trustee ................................................. 58
Section 7.02. Rights of Trustee ................................................. 59
Section 7.03. Individual Rights of Trustee ...................................... 60
Section 7.04. Trustee's Disclaimer .............................................. 60
Section 7.05. Notice of Defaults ................................................ 60
Section 7.06. Reports by Trustee to Holders ..................................... 60
Section 7.07. Compensation and Indemnity ........................................ 60
Section 7.08. Replacement of Trustee ............................................ 61
Section 7.09. Successor Trustee by Merger, etc. ................................. 62
Section 7.10. Eligibility; Disqualification ..................................... 62
Section 7.11. Preferential Collection of Claims Against Company ................. 62
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE ........................................ 63
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance .......... 63
Section 8.02. Legal Defeasance and Discharge .................................... 63
Section 8.03. Covenant Defeasance ............................................... 63
Section 8.04. Conditions to Legal or Covenant Defeasance ........................ 64
Section 8.05. Deposited Cash and U.S. Government Securities to be Held in
Trust; Other Miscellaneous Provisions ............................. 64
Section 8.06. Repayment to Company .............................................. 65
Section 8.07. Reinstatement ..................................................... 65
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER ................................................ 65
Section 9.01. Without Consent of Holders of Notes ............................... 65
Section 9.02. With Consent of Holders of Notes .................................. 66
Section 9.03. Compliance with Trust Indenture Act ............................... 67
Section 9.04. Revocation and Effect of Consents ................................. 68
Section 9.05. Notation on or Exchange of Notes .................................. 68
Section 9.06. Trustee to Sign Amendments, etc ................................... 68
ARTICLE 10. GUARANTEES ...................................................................... 68
Section 10.01. Guarantee ......................................................... 68
Section 10.02. Limitation on Guarantor Liability ................................. 70
Section 10.03. Execution and Delivery of Guarantee ............................... 70
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms ................ 71
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 10.05. Releases Following Merger, Consolidation or Sale of Assets, etc. .. 71
ARTICLE 11. SATISFACTION AND DISCHARGE ...................................................... 72
Section 11.01. Satisfaction and Discharge ........................................ 72
Section 11.02. Deposited Cash and U.S. Government Securities to be Held in
Trust; Other Miscellaneous Provisions ............................ 73
Section 11.03. Repayment to Company .............................................. 73
ARTICLE 12. SUBORDINATION ................................................................... 73
Section 12.01. Agreement to Subordinate .......................................... 73
Section 12.02. Liquidation; Dissolution; Bankruptcy .............................. 73
Section 12.03. Default on Designated Senior Debt ................................. 74
Section 12.04. Acceleration of Notes ............................................. 75
Section 12.05. When Distribution Must Be Paid Over ............................... 75
Section 12.06. Notice by the Company ............................................. 75
Section 12.07. Subrogation ....................................................... 75
Section 12.08. Relative Rights ................................................... 76
Section 12.09. Subordination May Not Be Impaired by the Company .................. 76
Section 12.10. Distribution or Notice to Representative .......................... 76
Section 12.11. Rights of Trustee and Paying Agent ................................ 76
Section 12.12. Authorization to Effect Subordination ............................. 77
Section 12.13. Trust Moneys Not Subordinated ..................................... 77
Section 12.14. Payment and Distribution .......................................... 77
Section 12.15. No Claims ......................................................... 77
Section 12.16. Acknowledgement of Holders ........................................ 78
ARTICLE 13. MISCELLANEOUS ................................................................... 78
Section 13.01. Trust Indenture Act Controls ...................................... 78
Section 13.02. Notices ........................................................... 78
Section 13.03. Communication by Holders of Notes with Other Holders of Notes ..... 79
Section 13.04. Certificate and Opinion as to Conditions Precedent ................ 79
Section 13.05. Statements Required in Certificate or Opinion ..................... 79
Section 13.06. Rules by Trustee and Agents ....................................... 80
Section 13.07. No Personal Liability of Directors, Officers, Employees and
Stockholders ...................................................... 80
Section 13.08. Governing Law ..................................................... 80
Section 13.09. No Adverse Interpretation of Other Agreements ..................... 80
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 13.10. Successors ........................................................ 80
Section 13.11. Severability ...................................................... 80
Section 13.12. Counterpart Originals ............................................. 80
Section 13.13. Table of Contents, Headings, etc. ................................. 80
Section 13.14. Qualification of this Indenture ................................... 80
v
CROSS-REFERENCE TABLE
TIA SECTION REFERENCE INDENTURE
SECTION
310(a)(1)............................................................................... 7.10
(a)(2).................................................................................. 7.10
(a)(3).................................................................................. N.A.
(a)(4).................................................................................. N.A.
(a)(5).................................................................................. 7.10
(b)..................................................................................... 7.08, 7.10
(c)..................................................................................... N.A.
311(a).................................................................................. 7.11
(b)..................................................................................... 7.11
(c)..................................................................................... N.A.
312(a).................................................................................. 2.05
(b)..................................................................................... 12.03
(c)..................................................................................... 12.03
313(a).................................................................................. 7.06
(b)(1).................................................................................. N.A.
(b)(2).................................................................................. 7.06, 7.07
(c)..................................................................................... 7.06, 12.02
(d)..................................................................................... 7.06
314(a).................................................................................. 4.03, 4.04, 12.02
(b)..................................................................................... N.A.
(c)(1).................................................................................. 12.04
(c)(2).................................................................................. 12.04
(c)(3).................................................................................. N.A.
(d)..................................................................................... N.A.
(e)..................................................................................... 12.05
315(a).................................................................................. 7.01
(b)..................................................................................... 7.05, 12.02
(c)..................................................................................... 7.01
(d)..................................................................................... 7.01
(e)..................................................................................... 6.11
316(a) (last sentence).................................................................. 2.09
(a)(1)(A)............................................................................... 6.05
(a)(1)(B)............................................................................... 6.04
(a)(2).................................................................................. N.A.
(b)..................................................................................... 6.07
317(a)(1)............................................................................... 6.08
(a)(2).................................................................................. 6.09
(b)..................................................................................... 2.04
318(a).................................................................................. 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
