Exhibit 4.1
MANOR CARE, INC.,
THE SUBSIDIARY GUARANTORS PARTIES HERETO,
AND
NATIONAL CITY BANK,
AS TRUSTEE
2.125% Convertible Senior Notes due 2023
INDENTURE
Dated as of April 15, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions..................................................................... 1
SECTION 1.2. Other Definitions............................................................... 11
SECTION 1.3. Incorporation by Reference of Trust Indenture Act............................... 12
SECTION 1.4. Rules of Construction........................................................... 12
ARTICLE II
THE SECURITIES
SECTION 2.1. Title and Terms................................................................. 13
SECTION 2.2. Form of Securities.............................................................. 14
SECTION 2.3. Legends......................................................................... 15
SECTION 2.4. Execution and Authentication.................................................... 19
SECTION 2.5. Registrar and Paying Agent...................................................... 20
SECTION 2.6. Paying Agent To Hold Money in Trust............................................. 21
SECTION 2.7. Securityholder Lists............................................................ 22
SECTION 2.8. General Provisions Relating to Transfer and Exchange............................ 22
SECTION 2.9. Book-Entry Provisions for the Global Securities................................. 23
SECTION 2.10. Special Transfer Provisions..................................................... 24
SECTION 2.11. Mutilated, Destroyed, Lost or Stolen Securities................................. 26
SECTION 2.12. Outstanding Securities.......................................................... 27
SECTION 2.13. Temporary Securities............................................................ 27
SECTION 2.14. Cancellation.................................................................... 28
SECTION 2.15. Payment of Interest; Defaulted Interest......................................... 28
SECTION 2.16. Computation of Interest......................................................... 29
SECTION 2.17. CUSIP and ISIN Numbers.......................................................... 29
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Securities........................................................... 30
SECTION 3.2. Financial Statements............................................................ 30
SECTION 3.3. Future Subsidiary Guarantors; Release of Guarantees............................. 31
SECTION 3.4. Maintenance of Office or Agency................................................. 32
SECTION 3.5. Corporate Existence............................................................. 32
SECTION 3.6. Payment of Taxes and Other Claims............................................... 33
SECTION 3.7. Payments for Consent............................................................ 33
SECTION 3.8. Compliance Certificate.......................................................... 33
SECTION 3.9. Further Instruments and Acts.................................................... 33
SECTION 3.10. Statement by Officers as to Default............................................. 33
SECTION 3.11. Tax Treatment................................................................... 33
SECTION 3.12. Additional Amounts.............................................................. 34
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ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1. Consolidation, Merger and Sale of Assets........................................ 34
ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Optional Redemption............................................................. 35
SECTION 5.2. Applicability of Article........................................................ 35
SECTION 5.3. Election to Redeem; Notice to Trustee........................................... 35
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed............................... 35
SECTION 5.5. Notice of Redemption............................................................ 36
SECTION 5.6. Deposit of Redemption Price..................................................... 37
SECTION 5.7. Securities Payable on Redemption Date........................................... 37
SECTION 5.8. Securities Redeemed in Part..................................................... 38
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default............................................................... 38
SECTION 6.2. Acceleration.................................................................... 40
SECTION 6.3. Other Remedies.................................................................. 40
SECTION 6.4. Waiver of Past Defaults......................................................... 40
SECTION 6.5. Control by Majority............................................................. 41
SECTION 6.6. Limitation on Suits............................................................. 41
SECTION 6.7. Rights of Holders to Receive Payment............................................ 42
SECTION 6.8. Collection Suit by Trustee...................................................... 42
SECTION 6.9. Trustee May File Proofs of Claim................................................ 42
SECTION 6.10. Priorities...................................................................... 42
SECTION 6.11. Undertaking for Costs........................................................... 42
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee............................................................... 43
SECTION 7.2. Rights of Trustee............................................................... 44
SECTION 7.3. Individual Rights of Trustee.................................................... 45
SECTION 7.4. Trustee's Disclaimer............................................................ 45
SECTION 7.5. Notice of Defaults.............................................................. 45
SECTION 7.6. Reports by Trustee to Holders................................................... 45
SECTION 7.7. Compensation and Indemnity...................................................... 46
SECTION 7.8. Replacement of Trustee.......................................................... 46
SECTION 7.9. Successor Trustee by Merger..................................................... 47
SECTION 7.10. Eligibility; Disqualification................................................... 48
SECTION 7.11. Preferential Collection of Claims Against Company............................... 48
SECTION 7.12. Trustee's Application for Instruction from the Company.......................... 48
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.1. Discharge of Liability on Securities............................................ 48
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SECTION 8.2. Reinstatement................................................................... 49
SECTION 8.3. Officers' Certificate; Opinion of Counsel....................................... 49
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders...................................................... 50
SECTION 9.2. With Consent of Holders......................................................... 50
SECTION 9.3. Compliance with Trust Indenture Act............................................. 52
SECTION 9.4. Revocation and Effect of Consents and Waivers................................... 52
SECTION 9.5. Notation on or Exchange of Securities........................................... 52
SECTION 9.6. Trustee To Sign Amendments...................................................... 52
ARTICLE X
SUBSIDIARY GUARANTEE
SECTION 10.1. Subsidiary Guarantee............................................................ 53
SECTION 10.2. Limitation on Liability; Termination, Release and Discharge Upon Merger or
Consolidation; Termination on Conversion....................................... 54
SECTION 10.3. Right of Contribution........................................................... 55
SECTION 10.4. No Subrogation.................................................................. 56
ARTICLE XI
PURCHASE AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE;
REPURCHASE AT THE OPTION OF HOLDERS
SECTION 11.1. Purchase at the Option of the Holder Upon a Fundamental Change.................. 56
SECTION 11.2. Purchase of Securities at the Option of the Holder.............................. 59
SECTION 11.3. Further Conditions and Procedures for Purchase at the Option of the Holder
Upon a Fundamental Change and Purchase of Securities at the Option of the
Holder......................................................................... 61
ARTICLE XII
CONVERSION
SECTION 12.1. Conversion of Securities........................................................ 67
SECTION 12.2. Adjustments to Conversion Price................................................. 69
SECTION 12.3. Miscellaneous Provisions Relating to Conversion................................. 73
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls.................................................... 76
SECTION 13.2. Notices......................................................................... 77
SECTION 13.3. Communication by Holders with other Holders..................................... 77
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.............................. 78
SECTION 13.5. Statements Required in Certificate or Opinion................................... 78
SECTION 13.6. When Securities Disregarded..................................................... 78
SECTION 13.7. Rules by Trustee, Paying Agent and Registrar.................................... 78
SECTION 13.8. Legal Holidays.................................................................. 79
SECTION 13.9. GOVERNING LAW................................................................... 79
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SECTION 13.10 . No Recourse Against Others.................................................... 79
SECTION 13.11 . Successors.................................................................... 79
SECTION 13.12 . Multiple Originals............................................................ 79
SECTION 13.13 . Qualification of Indenture.................................................... 79
SECTION 13.14 . Table of Contents; Headings................................................... 79
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EXHIBIT A Form of the Security
EXHIBIT B Form of Indenture Supplement to Add Subsidiary Guarantors
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ........................................................... 7.10
(a)(2) ........................................................... 7.10
(a)(3) ........................................................... N.A.
(a)(4) ........................................................... N.A.
(a)(5) ........................................................... 7.10
(b) ........................................................... 7.8; 7.10
(c) ........................................................... N.A.
311(a) ........................................................... 7.11
(b) ........................................................... 7.11
(c) ........................................................... N.A.
312(a) ........................................................... 2.7
(b) ........................................................... 13.3
(c) ........................................................... 13.3
313(a) ........................................................... 7.6
(b)(1) ........................................................... N.A.
(b)(2) ........................................................... 7.6
(c) ........................................................... 7.6
(d) ........................................................... 7.6
314(a) ........................................................... 3.2; 3.8, 13.5
(b) ........................................................... N.A.
(c)(1) ........................................................... 13.4
(c)(2) ........................................................... 13.4
(c)(3) ........................................................... N.A.
(d) ........................................................... N.A.
(e) ........................................................... 13.5
315(a) ........................................................... 7.1
(b) ........................................................... 7.5; 13.2
(c) ........................................................... 7.1
(d) ........................................................... 7.1
(e) ........................................................... 6.11
316(a)(last sentence) ........................................................... 13.6
(a)(1)(A) ........................................................... 6.5
(a)(1)(B) ........................................................... 6.4
(a)(2) ........................................................... N.A.
(b) ........................................................... 6.7
(c) ........................................................... 6.5
317(a)(1) ........................................................... 6.8
(a)(2) ........................................................... 6.9
(b) ........................................................... 2.6
318(a) ........................................................... 13.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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INDENTURE dated as of April 15, 2003, among MANOR CARE, INC.,
a Delaware corporation (the "Company"), THE SUBSIDIARY GUARANTORS (as defined)
and NATIONAL CITY BANK, a national banking association (the "Trustee"), as
Trustee.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
2.125% Convertible Senior Notes due 2023 (the "Securities") on the date hereof
and the guarantees thereof by certain of the Company's subsidiaries.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"2006 Notes" means MCA's $150.0 million principal amount of 7
1/2% Senior Notes due 2006.
"2008 Notes" means the Company's $200.0 million principal
amount of 8% Senior Notes due 2008.
"2013 Notes" means the Company's $200.0 million principal
amount of 6.25% Senior Notes due 2013.
"Additional Amounts" means all amounts, if any, payable
pursuant to Section 2 of the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided, however, that the existence of a management contract by the
Company or an Affiliate of the Company to manage another entity shall not be
deemed to be control.
"Applicable Five Day Trading Period" means, with respect to
any interest period in which Contingent Interest may be payable, the five
Trading Days ending on the second Trading Day immediately preceding the first
day of such interest period.
"Attributable Debt" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded
semi-annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal or state law for the relief of debtors.
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"Beneficial Owner" shall mean any person who is considered a
beneficial owner of a security in accordance with Rule 13(d)(3) promulgated by
the SEC under the Exchange Act.
"Bid Agent" means a bid solicitation agent appointed by the
Company to act in such capacity for the purposes of determining the Securities
Price, provided that such agent shall not be the Company or an Affiliate of the
Company. The Bid Agent appointed by the Company shall initially be the Trustee.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Business Day" means each day that is not a Saturday, Sunday
or other day on which banking institutions in New York, New York and Cleveland,
Ohio are authorized or required by law to close.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Debt represented
by such obligation will be the capitalized amount of such obligation at the time
any determination thereof is to be made as determined in accordance with GAAP,
and the Stated Maturity thereof will be the date of the last payment of rent or
any other amount due under such lease prior to the first date such lease may be
terminated without penalty.
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Equity" of any Person means capital stock of such
Person that is generally entitled to (1) vote in the election of directors of
such Person or (2) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management or policies of such Person.
"Common Stock" means the Company's Common Stock, par value
$.01 per share.
"Company Notice" has the meaning provided in Section 11.3(a).
"Company" means Manor Care, Inc. or its successors and
assigns.
"Company Notice Date" has the meaning provided in Section
11.3(a).
"Contingent Interest" has the meaning provided in Section
2.1(d).
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"Continuing Director" means a director who either was a member
of our board of directors on the date of the Offering Memorandum or who becomes
a director of the Company subsequent to that date and whose election,
appointment or nomination for election by our stockholders, is duly approved by
a majority of the Continuing Directors on the Board of Directors of the Company
at the time of such approval, either by a specific vote or by approval of the
proxy statement issued by the Company on behalf of the entire Board of Directors
of the Company in which such individual is named as nominee for director.
"Conversion Agent" means the office or agency appointed by the
Company where Securities may be presented for conversion. The Conversion Agent
appointed by the Company shall initially be the Trustee
"Conversion Date" has the meaning provided in Section 12.1(b).
"Conversion Price" means the principal amount of Securities
that can be exchanged for one share of Common Stock (initially $31.12), subject
to adjustments set forth herein.
"Conversion Rate" means the number of shares of Common Stock
issuable in respect of $1,000 principal amount of Securities determined by
dividing such principal amount by the then applicable Conversion Price.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) the principal component of all obligations of such
Person in respect of letters of credit, bankers'
acceptances or other similar instruments (including
reimbursement obligations with respect thereto except
to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied
within 30 days of Incurrence);
(4) the principal component of all obligations of such
Person to pay the deferred and unpaid purchase price
of property (except trade payables), which purchase
price is due more than six months after the date of
placing such property in service or taking delivery
and title thereto;
(5) Capitalized Lease Obligations and all Attributable
Debt of such Person; and
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(6) the principal component of Debt of other Persons to
the extent Guaranteed by such Person.
The amount of Debt of any Person at any date will be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Euroclear" means Euroclear Bank S.A./N.V. or any successor
securities clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Fair Market Value" means the amount that a willing buyer
would pay a willing seller in an arm's length transaction.
"Fiscal Year" means the fiscal year of the Company ending on
December 31 of each year.
A "Fundamental Change" shall be deemed to have occurred at
such time after the original issuance of the Securities as any of the following
occurs:
(1) any "person" or "group" within the meaning of Section
13(d) of the Exchange Act, other than the Company,
any Subsidiary of the Company or any employee benefit
plan of the Company or any such Subsidiary, files a
Schedule TO or any other schedule, form or report
under the Exchange Act disclosing that such person or
group has become the direct or indirect ultimate
Beneficial Owner of Common Equity of the Company
representing more than 50% of the voting power of the
Company's Common Equity;
(2) consummation of any share exchange, consolidation or
merger of the Company pursuant to which the Common
Stock will be converted into cash, securities or
other property or any sale, lease or other transfer
(in one transaction or a series of transactions) of
all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a
whole, to any Person other than one of the Company's
Subsidiaries; provided, however, that a transaction
where the holders of more than 50% of all classes of
the Company's Common Equity immediately prior to such
5
transaction own, directly or indirectly, more than
50% of all classes of Common Equity of the continuing
or surviving corporation or transferee immediately
after such event shall not be a Fundamental Change;
(3) Continuing Directors cease to constitute at least a
majority of the Company's Board of Directors;
(4) the stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the
Company; or
(5) the Company's Common Stock ceases to be listed on a
national securities exchange or quoted on the Nasdaq
National Market or another established automated
over-the-counter trading market in the United States;
provided, however, that a Fundamental Change shall not be deemed to have
occurred if either (I) the Sale Price per share of the Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending immediately
before the later of the Fundamental Change or the announcement thereof shall
equal or exceed 105% of the Conversion Price per share of Common Stock in effect
on each of those Trading Days or (II) at least 90% of the consideration,
excluding cash payments for fractional shares, in the transaction or
transactions constituting the Fundamental Change consists of shares of common
stock with full voting rights traded on a national securities exchange or quoted
on the Nasdaq National Market or which shall be so traded or quoted when issued
or exchanged in connection with such Fundamental Change (such securities being
referred to as "Publicly Traded Securities") and as a result of such transaction
or transactions such Securities become convertible into such Publicly Traded
Securities (excluding cash payments for fractional shares).
"Fundamental Change Purchase Date" has the meaning provided in
Section 11.1.
"Fundamental Change Purchase Notice" has the meaning provided
in Section 11.1(b).
"Fundamental Change Purchase Price" has the meaning provided
in Section 11.1.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt of such other
Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to
purchase
6
assets, goods, securities or services, to
take-or-pay, or to maintain financial statement
conditions or otherwise); or
(2) entered into for purposes of assuring in any other
manner the obligee of such Debt of the payment
thereof or to protect such obligee against loss in
respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered in the Securities Register.
"Incur" means issue, create, assume, Guarantee, incur or
otherwise become liable for; and the terms "Incurred" and "Incurrence" have
meanings correlative to the foregoing.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Initial Purchasers" means, collectively, X.X. Xxxxxx
Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and UBS
Warburg LLC.
"Issue Date" means April 15, 2003.
"Legal Holiday" has the meaning ascribed to it in Section
13.8.
"Market Price" means the average of the Sale Prices of the
Common Stock for the 20 Trading Day period ending on the third Business Day
prior to the applicable Purchase Date, Fundamental Change Purchase Date or date
of determination (if the third Business Day prior to the applicable Purchase
Date, Fundamental Change Purchase Date or date of determination is a Trading
Day, or if not, then on the last Trading Day prior to such third Business Day),
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such Trading Days during such 20 Trading Day period
and ending on such Purchase Date, Fundamental Change Purchase Date or date of
determination, of any event requiring an adjustment of the Conversion Price
under this Indenture.
"MCA" means Manor Care of America, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company, or any of its
successors and assigns.
"Moody's" means Xxxxx'x Investors Service, Inc., or, if
Xxxxx'x Investors Service, Inc. shall cease rating debt securities having a
maturity at original issuance of at least one year and such ratings business
shall have been transferred to a successor Person, such successor Person;
provided, however, that if there is no successor Person, then "Moody's" shall
mean any other nationally recognized rating agency, other than S&P, that rates
debt securities having a maturity at original issuance of at least one year and
that shall have been designated by the Company.
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"Non-Recourse Debt" means Debt or that portion of Debt (i) as
to which neither the Company nor its Subsidiaries (other than a Non-Recourse
Subsidiary) (A) provides credit support (including any undertaking, agreement or
instrument which would constitute Debt), (B) is directly or indirectly liable or
(C) constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary which (i) has not
acquired any assets (other than cash) directly or indirectly from the Company or
any Subsidiary, (ii) only owns assets acquired after the Issue Date or assets
acquired prior to the date such entity becomes a Subsidiary and (iii) has no
Debt other than Non-Recourse Debt.
"Obligations" has the meaning ascribed to it in Section 10.1.
"Offering Memorandum" means the offering memorandum, dated
April 10, 2003, relating to the offering by the Company of $90.0 million of the
2.125% Convertible Senior Notes due 2023 (which may be increased to $100.0
million principal amount of the Securities if the Initial Purchasers' option set
forth in Section 2 of the Purchase Agreement to purchase additional Securities
is exercised in full).
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company. The term Officer of any Subsidiary
Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two
Officers or attorneys-in-fact or by an Officer and either an Assistant Treasurer
or an Assistant Secretary of the Company or the Subsidiary Guarantors, as
applicable.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Publicly Traded Securities" has the meaning provided in the
definition of Fundamental Change in this Section 1.1.
8
"Purchase Date" has the meaning provided in Section 11.2(a).
"Purchase Notice" has the meaning provided in Section
11.2(a)(1).
"Purchase Price" has the meaning provided in paragraph 7 of
the Securities.
"QIB" means any "qualified institutional buyer" (as term is
defined in Rule 144A).
"Regular Record Date" for the interest on the Securities
(including Contingent Interest, if any) and Additional Amounts, if any, means
the April 1 (whether or not a Business Day) next preceding an interest payment
date on April 15 and the October 1 (whether or not a Business Day) next
preceding an interest payment date on October 15.
"Redemption Date" means, with respect to any redemption of
Securities, the date of redemption with respect thereto.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the Initial Purchasers, the
Subsidiary Guarantors and the Company.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Securities" has the meaning provided in Section
2.3(a).
"Restricted Securities Legend" has the meaning provided in
Section 2.3(a).
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc., or, if Standard & Poor's Ratings Service shall
cease rating debt securities having a maturity at original issuance of at least
one year and such ratings business shall have been transferred to a successor
Person, such successor Person; provided, however, that if there is no successor
Person, then "S&P" shall mean any other nationally recognized rating agency,
other than Moody's, that rates debt securities having a maturity at original
issuance of at least one year and that shall have been designated by the
Company.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or its Subsidiaries of any
property or assets (other than any such arrangement involving (i) a lease for a
term, including renewal rights, of not more than 36 months, (ii) a lease of
property within 18 months from the acquisition or, in the case of the
construction, alteration or improvement of property, the later of the completion
of the construction, alteration or improvement of such property or the
commencement of commercial operation of the property, or (iii) leases between or
among the Company and a Subsidiary or Subsidiaries), which property or asset has
been or is to be sold or transferred by the Company or a Subsidiary to such
Person.
"Sale Price" of the Common Stock on any date means the closing
sale price per share (or, if no closing sale price is reported, the average of
the bid and ask prices or, if more
9
than one in either case, the average of the average bid and average ask prices)
on such date as reported in the composite transactions for the principal U.S.
securities exchange on which the Common Stock is traded or, if the Common Stock
is not listed on a U.S. national or regional securities exchange, as reported by
the Nasdaq National Market.
If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange and not reported by the National
Association of Securities Dealers Automated Quotation System on the relevant
date, the Sale Price shall be the last quoted bid price for the Common Stock in
the over-the-counter market on the relevant date as reported by the National
Quotation Bureau or similar organization.
If the Common Stock is not so quoted, the Sale Price shall be
the average of the mid-point of the last bid and ask prices for the Common Stock
on the relevant date from each of at least three nationally recognized
independent investment banking firms selected by the Company for this purpose.
"SEC" means the United States Securities and Exchange
Commission.
"Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Securities Act" means the Securities Act of 1933 (15 U.S.C.
Sections 77a - 77aa), as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Securities Price" means, as of any date of determination, the
average of the secondary market bid quotations per $1,000 principal amount of
Securities obtained by the Bid Agent for $10,000,000 of Securities at
approximately 4:00 p.m. (New York City time) on such determination date from
three unaffiliated recognized securities dealers in The City of New York (none
of which shall be an Affiliate of the Company) selected by the Company;
provided, however, if (a) at least three such bids are not obtained by the Bid
Agent or (b) in the Company's reasonable judgment, the bid quotations are not
indicative of the secondary market value of the Securities as of such
determination date, then the Securities Price for such determination date shall
equal (i) the Conversion Rate in effect as of such determination date multiplied
by (ii) the average Sale Price for the five trading days ending on such
determination date, appropriately adjusted to take into account the occurrence,
during the period commencing on the first of such trading days during such five
trading day period and ending on such determination date, of any event described
in Section 12.2.
"Securities Register" means the register of Securities,
maintained by the Registrar, pursuant to Section 2.5.
"Senior Credit Agreement" means, with respect to the Company,
one or more debt facilities (including, without limitation, (i) the Credit
Agreement, dated as of September 25, 1998, among the Company, MCA, Bank of
America, N.A., as Administrative Agent, and the lenders parties thereto from
time to time, as amended by the First Amendment to the Five Year
10
Credit Agreement, dated as of February 9, 2000, and by the Second Amendment to
the Five Year Credit Agreement, dated as of September 22, 2000, and as may be
further amended from time to time and (ii) the proposed three-year senior
revolving credit facility which may be among the Company, Bank of America, N.A.,
as Administrative Agent, JPMorgan Chase Bank, as Syndication Agent, and the
lenders parties thereto from time to time, as may be amended or modified from
time to time) or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans or letters of credit,
in each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time (and whether or not with the
original administrative agent and lenders or another administrative agent or
agents or other lenders and whether provided under the original Credit Agreement
or any other credit or other agreement or indenture).
"Shelf Registration Statement" shall have the meaning
contemplated by and in accordance with the terms of the Registration Rights
Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision, but shall not include any contingent obligations
to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" of the Company means (i) a corporation a majority
of whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other Person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"Subsidiary Guarantee" means, individually, any Guarantee of
payment of the Securities by a Subsidiary Guarantor pursuant to the terms of
this Indenture and any supplemental indenture hereto (including pursuant to
Exhibit B), and, collectively, all such Guarantees. Each such Subsidiary
Guarantee will be in the form prescribed by this Indenture.
"Subsidiary Guarantor" means MCA and each Subsidiary of the
Company (other than a Subsidiary that does not guarantee obligations under the
Senior Credit Agreement, the 2006 Notes, the 2008 Notes or the 2013 Notes) in
existence on the Issue Date and, any Subsidiary that is required to Guarantee
the Securities under the terms of this Indenture.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this
Indenture.
"Trading Day" means a day on which the Company's Common Stock
(a) is not suspended from trading on any national or regional securities
exchange or association or over-
11
the-counter market at the close of business and (b) has traded at least once on
the national or regional securities exchange or association or over- the-counter
market that is the primary market for the trading of the Company's Common Stock.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Agent" 3.4
"Agent Member" 2.9
"Authenticating Agent" 2.4
"Certificate of Destruction" 2.14
"Company Order" 2.4
"cross acceleration provision" 6.1
"Defaulted Interest" 2.15
"Determination Date" 12.2
"Event of Default" 6.1
"Expiration Time" 12.2
"Global Securities" 2.2
"Global Security Legend" 2.3
"judgment default provision" 6.1
"Paying Agent" 2.5
"Payment Default" 6.1
"Purchased Shares" 12.2
"Registrar" 2.5
"Special Interest Payment Date" 2.15
"Special Record Date" 2.15
"Successor Company" 4.1
"tendered shares" 12.2
"tender offer" 12.2
"Trigger Event" 12.2
"Triggering Distribution" 12.2
12
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by SEC
rule have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without
limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) the principal amount of any noninterest
bearing or other discount security at any date shall be the principal
amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP; and
(7) the principal amount of any Preferred Stock
shall be (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock, whichever is greater.
13
ARTICLE II
The Securities
SECTION 2.1. Title and Terms. (a) The Securities shall be
known and designated as the "2.125% Convertible Senior Notes due 2023" of the
Company. The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $90.0 million (or up to $100.0
million if the Initial Purchasers' option set forth in Section 2 of the Purchase
Agreement is exercised), except for Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of other Securities
pursuant to Section 2.8, 2.9, 2.10, 2.11, 2.13, 9.5, 5.8, 11.3 or 12.1. The
Securities shall be issuable in denominations of $1,000 or integral multiples
thereof.
(b) The Securities shall mature on April 15, 2023.
(c) Interest shall accrue from and including April 15,
2003 until the principal thereof is paid or made available for payment. Interest
shall be payable semi-annually in arrears on April 15 and October 15 in each
year, commencing October 15, 2003.
(d) In addition, contingent interest, if any ("Contingent
Interest"), will accrue on each Security during any six-month period from April
15 to October 14 and from October 15 to April 14, as appropriate, commencing
with the six-month period beginning April 15, 2010, if the average Securities
Price for the Applicable Five Trading Day Period with respect to such interest
period equals 120% or more of $1,000 principal amount of Securities. The amount
of Contingent Interest payable per $1,000 principal amount of Securities in
respect of any interest period shall equal 0.25% of the average Securities Price
for the Applicable Five Day Trading Period with respect to such interest period.
Contingent Interest, if any, will accrue from April 15 or October 15, as
applicable, and will be payable on the next succeeding October 15 or April 15
interest payment date, as the case may be. Contingent Interest will be paid to
the person in whose name a Security is registered at the close of business on
April 1 or October 1, as the case may be, immediately preceding the relevant
interest payment date on which Contingent Interest is payable. All payments of
Contingent Interest shall be made in cash.
Upon determination that Holders will be entitled to receive
Contingent Interest during an interest period, on or prior to the first day of
such interest period, the Company shall issue a press release through Dow Xxxxx
& Company, Inc. or Bloomberg Business News containing such information with
respect to the payment of Contingent Interest or publish such information on its
web site or through such other public medium as the Company may use at that
time.
(e) Except as provided in the last sentence of this
Section 2.1(e), a Holder of any Security at the close of business on a Regular
Record Date shall be entitled to receive interest (including Contingent
Interest, if any) and Additional Amounts, if any, on such Security on the
corresponding interest payment date. Holders of Securities at the close of
business on a Regular Record Date will receive payment of interest (including
any Contingent Interest) payable on the corresponding interest payment date
notwithstanding the conversion of such Securities at any time after the close of
business on such Regular Record Date. Securities
14
surrendered for conversion during the period from the close of business on any
Regular Record Date to the opening of business on the corresponding interest
payment date (except for Securities in respect of which a Redemption Date has
been declared that falls within this period or on such interest payment date)
must be accompanied by payment of an amount equal to the interest (including any
Contingent Interest) that the Holder is to receive on the Securities. If the
Company is required to pay any Contingent Interest, Securities surrendered for
conversion during the period from the close of business on the Regular Record
Date for such Contingent Interest to the opening of business on the interest
payment date for such Contingent Interest (except for Securities in respect of
which a Redemption Date has been declared that falls within this period or on
such interest payment date for such Contingent Interest) must be accompanied by
payment of an amount equal to such Contingent Interest that the Holder is to
receive. Except where Securities surrendered for conversion must be accompanied
by payment as described above, no interest or Contingent Interest on converted
Securities will be payable by the Company on any interest payment date
subsequent to the date of conversion. Notwithstanding the foregoing, a Holder
shall be entitled to receive accrued and unpaid interest, including any
Contingent Interest and any Additional Amounts in respect of a Security if the
Company calls such Security for redemption and such Holder converts its Security
prior to the Redemption Date.
(f) Principal of and interest (including Contingent
Interest, if any) and Additional Amounts, if any, on, Global Securities shall be
payable to DTC in immediately available funds.
(g) Principal on Definitive Securities shall be payable
in immediately available funds or, at the option of the Company, at the office
or agency of the Company maintained for such purpose, initially the Corporate
Trust Office of the Trustee. Interest (including Contingent Interest, if any)
and Additional Amounts, if any, on Definitive Securities will be payable (i) to
Holders having an aggregate principal amount of $5,000,000 or less, by check
mailed to the Holders of these Securities and (ii) to Holders having an
aggregate principal amount of more than $5,000,000, either by check mailed to
each Holder or, upon application by a Holder to the Registrar not later than the
relevant Record Date, by wire transfer in immediately available funds to that
Holder's account within the United States, which application shall remain in
effect until the Holder notifies, in writing, the Registrar to the contrary.
(h) The Securities shall be redeemable at the option of
the Company as provided in Article V.
(i) The Securities shall be repurchaseable by the Company
at the option of Holders as provided in Article XI.
(j) The Securities shall be convertible at the option of
the Holders as provided in Article XII.
(k) The Securities shall be jointly and severally
guaranteed by the Guarantors as provided in Article X.
SECTION 2.2. Form of Securities.
15
(a) Except as otherwise provided pursuant to this Section
2.2, the Securities are issuable in fully registered form without coupons in
substantially the form of Exhibit A hereto, with such applicable legends as are
provided for in Section 2.3. The Securities are not issuable in bearer form. The
terms and provisions contained in the form of Security shall constitute, and are
hereby expressly made, a part of this Indenture and to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. Any of the
Securities may have such letters, numbers or other marks of identification and
such notations, legends and endorsements as the officers executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or automated
quotation system on which the Securities may be listed or designated for
issuance, or to conform to usage.
(b) The Securities are being offered and sold by the
Company pursuant to the Purchase Agreement. Securities offered and sold to QIBs
in accordance with Rule 144A, as provided in the Purchase Agreement, shall be
issued initially in the form of one or more permanent global Securities in fully
registered form without interest coupons, substantially in the form of Exhibit A
hereto, with the applicable legends as provided in Section 2.3 (each a "Global
Security" and collectively the "Global Securities"). Each Global Security shall
be duly executed by the Company and authenticated and delivered by the Trustee,
and shall be registered in the name of DTC or its nominee and retained by the
Trustee, as Custodian, at its Corporate Trust Office, for credit to the accounts
of the Agent Members holding the Securities evidenced thereby. The aggregate
principal amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as Custodian, and
of DTC or its nominee, as hereinafter provided.
(c) Definitive Securities may be exchanged for interests
in Global Securities pursuant to Section 2.9.
SECTION 2.3. Legends.
(a) Restricted Securities Legends. Each Security issued
hereunder shall, upon issuance, bear the legend set forth in Section 2.3(a)(1),
and each Common Stock certificate representing shares of the Common Stock issued
upon conversion of any Security issued hereunder, shall, upon issuance, bear the
legend set forth in Section 2.3(a)(2) (each such legend, a "Restricted
Securities Legend"), and such legend shall not be removed except as provided in
Section 2.3(a)(3). Each Security that bears or is required to bear the
Restricted Securities Legend set forth in Section 2.3(a)(1) (together with each
Common Stock certificate representing shares of the Common Stock issued upon
conversion of such Security that bears or is required to bear the Restricted
Securities Legend set forth in Section 2.3(a)(2), collectively, the "Restricted
Securities") shall be subject to the restrictions on transfer set forth in this
Section 2.3(a) (including the Restricted Securities Legend set forth below), and
the Holder of each such Restricted Security, by such Holder's acceptance
thereof, shall be deemed to have agreed to be bound by all such restrictions on
transfer.
16
As used in Section 2.3(a), the term "transfer" encompasses any
sale, pledge, transfer or other disposition whatsoever of any Restricted
Security.
(1) Restricted Securities Legend for Securities.
Except as provided in Section 2.3(a)(3), any certificate
evidencing such Security (and all Securities issued in exchange therefor or
substitution thereof, other than stock certificates representing shares of the
Common Stock, if any, issued upon conversion thereof which shall bear the legend
set forth in Section 2.3(a)(2), if applicable) shall bear a Restricted
Securities Legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER REPRESENTS (1) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF
AVAILABLE); (D) THROUGH OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; OR (E) UNDER ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT;
AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN THE
LATER OF (X) TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY AND (Y)
THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144
ADOPTED UNDER THE SECURITIES ACT) OF THE ISSUER, FURNISH TO THE TRUSTEE AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED PURSUANT TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERM
"UNITED STATES" HAS THE MEANING GIVEN TO IT BY REGULATION S UNDER THE SECURITIES
ACT."
(2) Restricted Securities Legend for the Common Stock
Issued Upon Conversion of the Securities.
Each stock certificate representing Common Stock issued upon
conversion of the Securities will bear the following legend (unless such Common
Stock has been sold pursuant to
17
Rule 144 or pursuant to a registration statement that has been declared
effective under the Securities Act):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER; (B)
UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE); (D) THROUGH OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; OR (E) UNDER
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT; AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS
SECURITY WITHIN THE LATER OF (X) TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE
MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT) OF THE ISSUER, FURNISH TO
THE TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERM
"UNITED STATES" HAS THE MEANING GIVEN TO IT BY REGULATION S UNDER THE SECURITIES
ACT."
(3) Removal of the Restricted Securities Legends.
Each Security and each Common Stock certificate representing
shares of the Common Stock issued upon conversion of any Security (other than a
Common Stock certificate representing shares of the Common Stock issued upon
conversion of a Security that previously has been sold pursuant to a
registration statement that has been declared effective under the Securities Act
and which continues to be effective at the time of such sale) shall bear the
applicable Restricted Securities Legend set forth in Section 2.3(a)(1) or
2.3(a)(2), as the case may be, until the earlier of:
(i) the date which is the later of two years
after the original issuance date of such Security and three months after a
Holder ceased to be an affiliate of the Company;
18
(ii) and the date such Security has, or such
shares of the Common Stock have been sold pursuant to a registration statement
that has been declared effective under the Securities Act (and which continues
to be effective at the time of such sale).
The Holder must give notice thereof to the Trustee and any transfer agent for
the Common Stock, as applicable.
Notwithstanding the foregoing, the Restricted Securities
Legend may be removed from any Security or any Common Stock certificate
representing shares of the Common Stock issued upon conversion of any Security
if there is delivered to the Company such satisfactory evidence, which may
include an opinion of independent counsel, as may be reasonably required by the
Company, that neither such legend nor the restrictions on transfer set forth
therein are required to ensure that transfers of such Security or shares of the
Common Stock issued upon conversion of Securities, as the case may be, will not
violate the registration requirements of the Securities Act or the qualification
requirements under any state securities laws. Upon provision of such
satisfactory evidence, at the written direction of the Company, (i) in the case
of a Security, the Trustee shall authenticate and deliver in exchange for such
Security another Security or Securities having an equal aggregate principal
amount that does not bear such legend or (ii) in the case of a Common Stock
certificate representing shares of the Common Stock, the transfer agent for the
Common Stock shall authenticate and deliver in exchange for the Common Stock
certificate or certificates representing such shares of Common Stock bearing
such legend, one or more new Common Stock certificates representing a like
aggregate number of shares of Common Stock that do not bear such legend. If the
Restricted Securities Legend has been removed from a Security or Common Stock
certificates representing shares of the Common Stock issued upon conversion of
any Security as provided above, no other Security issued in exchange for all or
any part of such Security or Common Stock certificates representing shares of
the Common Stock issued upon conversion of such Security shall bear such legend,
unless the Company has reasonable cause to believe that such other Security is a
"restricted security" (or such shares of Common Stock are "restricted
securities") within the meaning of Rule 144 and instructs the Trustee in writing
to cause a Restricted Securities Legend to appear thereon.
Any Security (or Security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
Restricted Securities Legend set forth in Section 2.3(a)(1) as set forth therein
have been satisfied may, upon surrender of such Security for exchange to the
Registrar in accordance with the provisions of Section 2.8, be exchanged for a
new Security or Securities, of like tenor and aggregate principal amount, which
shall not bear the Restricted Securities Legend required by Section 2.3(a)(1).
Any Common Stock certificate representing shares of the Common
Stock issued upon conversion of any Security as to which such restrictions on
transfer shall have expired in accordance with their terms or as to which the
conditions for removal of the Restricted Securities Legend set forth in Section
2.3(a)(2) as set forth therein have been satisfied may, upon surrender of the
Common Stock certificates representing such shares of Common Stock for exchange
in accordance with the procedures of the transfer agent for the Common Stock, be
exchanged for a new Common Stock certificate or certificates representing a like
aggregate number of shares of
19
Common Stock, which shall not bear the Restricted Securities Legend required by
Section 2.3(a)(2).
(4) Global Security Legend
Each Global Security shall also bear the following legend (the
"Global Security Legend") on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."
(5) Legend for Definitive Securities
Definitive Securities, in addition to the legend set forth in
Section 2.3(a)(1), will also bear a legend substantially in the following form:
"THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A
GLOBAL SECURITY UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE,
WILL HOLD NO SECURITIES."
SECTION 2.4. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature. If an
Officer whose signature is on a Security no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually authenticates the Security. The signature of the Trustee on
a Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for
20
authentication, together with a written order of the Company signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company (the "Company Order") for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise. The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is limited to $90.0
million (or up to $100.0 million if the Initial Purchasers' option set forth in
Section 2 of the Purchase Agreement to purchase additional Securities is
exercised in full) outstanding, except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of the same class pursuant to Section 2.8, 2.9, 2.10, 2.11,
2.13, 9.5, 5.8, 11.3 or 12.1. All Securities issued on the Issue Date shall be
identical in all respects other than issue dates, the date from which interest
accrues and any changes relating thereto. Notwithstanding anything to the
contrary contained in this Indenture, all Securities issued under this Indenture
shall vote and consent together on all matters as one class and no series of
Securities will have the right to vote or consent as a separate class on any
matter.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Any such
instrument shall be evidenced by an instrument signed by a Trust Officer, a copy
of which shall be furnished to the Company. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by the Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
In case the Company or any Subsidiary Guarantor, pursuant to
Article IV or Section 10.2, shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving such merger, or
into which the Company or any Subsidiary Guarantor shall have been merged, or
the Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article IV, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and deliver Securities as specified in
such order for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 2.4 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time outstanding for Securities authenticated and delivered in such new
name.
SECTION 2.5. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange
21
(the "Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"). The Company shall cause each of the Registrar and
the Paying Agent to maintain an office or agency in the Borough of Manhattan,
The City of New York. The Registrar shall keep a register of the Securities and
of their transfer and exchange (the "Securities Register"). The Company may have
one or more co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent and the term "Registrar"
includes any co-registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its domestically organized, wholly owned Subsidiaries may act
as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities. The Company may remove any Registrar or Paying
Agent upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above. The Registrar or
Paying Agent may resign at any time upon written notice to the Company and the
Trustee.
SECTION 2.6. Paying Agent To Hold Money in Trust. By no later
than 10:00 a.m. (New York City time) on the date on which any principal of or
interest (including any Contingent Interest) and Additional Amounts, if any, on
any Security is due and payable, the Company shall deposit with the Paying Agent
a sum sufficient in immediately available funds to pay such principal or
interest (including any Contingent Interest) and Additional Amounts, if any,
when due. The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Securityholders or the Trustee all money held by such Paying Agent for the
payment of principal of or interest (including any Contingent Interest) and
Additional Amounts, if any, on the Securities and shall notify the Trustee in
writing of any default by the Company or any Subsidiary Guarantor in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
22
SECTION 2.7. Securityholder 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 Securityholders and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar, or to the extent
otherwise required under the TIA, the Company, on its own behalf and on behalf
of each of the Subsidiary Guarantors, shall furnish or cause the Registrar to
furnish to the Trustee, in writing 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 as the Trustee may reasonably
require of the names and addresses of Securityholders and the Company shall
otherwise comply with TIA Section 312(a).
SECTION 2.8. General Provisions Relating to Transfer and
Exchange. The Securities are issuable only in registered form. A Holder may
transfer a Security only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Securities Register. Furthermore, any
Holder of a Global Security shall, by acceptance of such Global Security, agree
that transfers of beneficial interests in such Global Security may be effected
only through a book-entry system maintained by the Holder of such Global
Security (or its agent) and that ownership of a beneficial interest in the
Global Security shall be required to be reflected in a book-entry.
When Securities are presented to the Registrar with a request
to register the transfer or to exchange them for an equal aggregate principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder). Subject to Section 2.4, to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, 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 other similar governmental charge payable upon exchanges in
connection with which a Security is issued to a Person other than the Holder
submitting the Security for exchange.
Neither the Company nor the Registrar shall be required to
exchange or register a transfer of any Securities:
(a) for a period of 15 days prior to the making of a
Notice of Redemption of Securities selected for redemption under Article V;
(b) so selected for redemption or, if a portion of any
Security is selected for redemption, the portion thereof selected for
redemption; or
(c) surrendered for conversion or, if a portion of any
Security is surrendered for conversion, the portion thereof surrendered for
conversion.
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Each Holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between beneficial owners of
any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and 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 2.9. Book-Entry Provisions for the Global Securities.
(a) The Global Securities initially shall:
(i) be registered in the name of DTC (or a
nominee thereof);
(ii) be delivered to the Trustee as custodian for
DTC;
(iii) bear the Restricted Securities Legend set
forth in Section 2.3(a)(1); and
(iv) the Global Security Legend set forth in
Section 2.3(b).
Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by DTC, or the Trustee as its custodian, or under such Global
Security, and DTC may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing contained herein
shall prevent the Company, the Trustee or any agent of the Company or Trustee
from giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and the Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security. With respect to any Global Security deposited on behalf of the
subscribers for the Securities represented thereby with the Trustee as custodian
for DTC for credit to their respective accounts (or to such other accounts as
they may direct) at Euroclear or Clearstream, the provisions of the "Operating
Procedures of the Euroclear System" and the "Terms and Conditions Governing Use
of Euroclear" and the "Management Regulations" and "Instructions to
Participants" of Clearstream, respectively, shall be applicable to the Global
Securities.
(b) The Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(c) A Global Security may not be transferred, in whole or
in part, to any Person other than the Depositary (or a nominee thereof), and no
such transfer to any such other
24
Person may be registered. Beneficial interests in a Global Security may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.10.
(d) If at any time:
(i) DTC notifies the Company in writing that it
is unwilling or unable to continue to act as Depositary for the Global
Securities and a successor depositary for the Global Securities is not appointed
by the Company within 90 days of such notice;
(ii) DTC ceases to be registered as a "clearing
agency" under the Exchange Act and a successor depositary for the Global
Securities is not appointed by the Company within 90 days of such cessation;
(iii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of the Definitive
Securities under this Indenture in exchange for all or any part of the
Securities represented by a Global Security or Global Securities; or
(iv) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC for the issuance of
Definitive Securities in exchange for such Global Security or Global Securities;
DTC shall surrender such Global Security or Global Securities to the Trustee for
cancellation and the Company shall execute, and the Trustee, upon receipt of an
Officers' Certificate and Company Order for the authentication and delivery of
Securities, shall authenticate and deliver in exchange for such Global Security
or Global Securities, Definitive Securities in an aggregate principal amount
equal to the aggregate principal amount of such Global Security or Global
Securities. Such Definitive Securities shall be registered in such names as the
Depositary shall identify in writing as the beneficial owners of the Securities
represented by such Global Security or Global Securities (or any nominee
thereof).
(e) Notwithstanding the foregoing, in connection with any
transfer of beneficial interests in a Global Security to the beneficial owners
thereof pursuant to Section 2.9(d), the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Global Security
in an amount equal to the principal amount of the beneficial interests in such
Global Security to be transferred.
SECTION 2.10. Special Transfer Provisions. Unless a Security
is (i) transferred after the time period referred to in Rule 144(k) under the
Securities Act or (ii) sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be effective
at the time of such sale), the following provisions shall apply to any sale,
pledge or other transfer of Securities:
(a) Transfer of Securities to a QIB
The following provisions shall apply with respect to the
registration of any proposed transfer of Securities to a QIB:
25
(1) If the Securities to be transferred consist
of a beneficial interest in the Global Securities, the transfer of such
interest may be effected only through the book-entry systems maintained
by DTC and, to the extent applicable, Euroclear and Clearstream.
(2) If the Securities to be transferred consist
of Definitive Securities, the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Security stating (or has otherwise
advised the Company and the Registrar in writing) that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed a certification stating or has otherwise
advised the Company and the Registrar in writing that:
(A) it is purchasing the Securities for
its own account or an account with respect to which it exercises sole
investment discretion, in each case for investment and not with a view
to distribution;
(B) it and any such account is a QIB
within the meaning of Rule 144A;
(C) it is aware that the sale to it is
being made in reliance on Rule 144A;
(D) it acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information; and
(E) it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
In addition, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Securities in an amount equal to the aggregate principal amount of the
Definitive Securities to be transferred, and the Trustee shall cancel the
Definitive Securities so transferred.
(b) Other Exchanges.
In the event that Global Securities are exchanged for
Securities in definitive registered form pursuant to Section 2.9 prior to the
effectiveness of a Shelf Registration Statement with respect to such Securities,
such Securities may be exchanged only in accordance with the provisions of
clause (a) above (including the certification requirements intended to ensure
that such transfers comply with Rule 144A) and such other procedures as may from
time to time be adopted by the Company.
(c) General.
By its acceptance of any Security bearing the Restricted
Securities Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in
26
this Indenture and agrees that it will transfer such Security only as provided
in this Indenture. The Registrar shall not register a transfer of any Security
unless such transfer complies with the restrictions on transfer of such Security
set forth in this Indenture. The Registrar shall be entitled to receive and rely
on written instructions from the Company verifying that such transfer complies
with such restrictions on transfer. In connection with any transfer of
Securities, each Holder agrees by its acceptance of the Securities to furnish
the Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Registrar shall retain copies of all certifications,
letters, notices and other written communications received pursuant to Section
2.9 hereof or this Section 2.10. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
SECTION 2.11. Mutilated, Destroyed, Lost or Stolen Securities.
If a mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met, such that the Securityholder (a) satisfies the Company or the Trustee
within a reasonable time after such Securityholder has notice of such loss,
destruction or wrongful taking and the Registrar has not registered a transfer
prior to receiving such notification, (b) makes such request to the Company or
Trustee prior to the Security being acquired by a protected purchaser as defined
in Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and
(c) satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent and the Registrar from any loss which any
of them may suffer if a Security is replaced, and, in the absence of notice to
the Company, any Subsidiary Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
27
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.12. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding in
the event the Company or a Subsidiary of the Company holds the Security,
provided, however, that (i) for purposes of determining which are outstanding
for consent or voting purposes hereunder, the provisions of Section 13.6 shall
apply and (ii) in determining whether the Trustee shall be protected in making a
determination whether the Holders of the requisite principal amount of
outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.11, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a Redemption Date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.13. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon
surrender of the temporary Securities at any office or agency maintained by the
Company for that purpose and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities,
28
the Company shall execute, and the Trustee shall authenticate and make available
for delivery in exchange therefor, one or more Definitive Securities
representing an equal principal amount of Securities. Until so exchanged, the
Holder of temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as a Holder of Definitive Securities.
SECTION 2.14. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and destroy such Securities in accordance with its
internal policies and customary procedures including delivery of a certificate
(a "Certificate of Destruction") describing such Securities disposed (subject to
the record retention requirements of the Exchange Act) or deliver canceled
Securities to the Company pursuant to written direction by an Officer. The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, transferred, redeemed,
repurchased or canceled, such Global Security shall be returned by DTC to the
Trustee for cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased or canceled, the principal amount
of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
SECTION 2.15. Payment of Interest; Defaulted Interest.
Interest (including any Contingent Interest) on any Security which is payable,
and is punctually paid or duly provided for, on any interest payment date shall
be paid to the Person in whose name such Security (or one or more predecessor
Securities) is registered at the close of business on the regular record date
for such payment at the office or agency of the Company maintained for such
purpose pursuant to Section 2.5.
Any interest (including any Contingent Interest) on any
Security which is payable, but is not paid when the same becomes due and payable
and such nonpayment continues for a period of 30 days shall forthwith cease to
be payable to the Holder on the Regular Record Date, and such defaulted interest
and (to the extent lawful) interest on such defaulted interest (including any
Contingent Interest) at the rate borne by the Securities (such defaulted
interest (including any Contingent Interest) and interest thereon herein
collectively called "Defaulted Interest") shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of business on a
Special Record Date (as defined below) for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the
29
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security and the date (not less than 30 days after such notice) of the
proposed payment (the "Special Interest Payment Date"), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a record date (the "Special Record
Date") for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the Special Interest Payment Date and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date, and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date and Special Interest Payment Date therefor to be given in the manner
provided for in Section 13.2, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor having been so given,
such Defaulted Interest shall be paid on the Special Interest Payment Date to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
(including any Contingent Interest) accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 2.16. Computation of Interest. Interest (including any
Contingent Interest) on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 2.17. CUSIP and ISIN Numbers. The Company in issuing
the Securities may use "CUSIP" and "ISIN" numbers (if then generally in use)
and, if so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of
redemption as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP or ISIN numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP and ISIN numbers.
30
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities. The Company shall promptly
pay the principal of and interest (including any Contingent Interest) and
Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest
(including any Contingent Interest) and Additional Amounts, if any, shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture immediately available funds sufficient
to pay all principal and interest (including any Contingent Interest) and
Additional Amounts, if any, then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest (including any Contingent Interest) and
Additional Amounts, if any, payments hereunder
SECTION 3.2. Financial Statements. In the event and for so
long as the Company is not subject to Section 13 or 15(d) of the Exchange Act,
it shall file with the Trustee and mail to each Holder at such Holder's
registered address the following:
(a) within 120 days after the end of each fiscal year,
its consolidated balance sheets as of the close of such fiscal year and the
preceding fiscal year and related consolidated statements of income and
shareholders' equity and cash flows, showing the financial condition of the
Company and its consolidated Subsidiaries as of the close of such fiscal year
and the two preceding fiscal years, all audited by an independent public
accounting firm of recognized national standing and accompanied by an opinion of
such accounting firm to the effect that such financial statements fairly present
the financial condition and results of operations of the Company and its
consolidated Subsidiaries in accordance with GAAP consistently applied, except
as disclosed in the notes thereto. Such balance sheets and related statements
shall be substantially comparable in detail to the audited balance sheets and
related statements included in the Company's Offering Memorandum and shall be
accompanied by a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" ("MD&A") substantially comparable in detail to the
MD&A included in the Offering Memorandum with respect to the Company's fiscal
years ended December 31, 2000, 2001 and 2002; and
(b) within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, its consolidated balance sheets and
related consolidated statements of income and cash flows, stating the financial
condition of the Company and its consolidated Subsidiaries as of the close of
such fiscal quarter and as of the end of the preceding fiscal year (and the
corresponding quarter in the preceding fiscal year) and the then-elapsed portion
of such fiscal
31
year (and the corresponding period in the preceding fiscal year). Such balance
sheets and related statements shall be prepared in accordance with GAAP
consistently applied except as disclosed in the notes thereto and shall be
accompanied by an MD&A substantially comparable in detail to the MD&A included
in the Offering Memorandum.
(c) The Company shall deliver to the Holder, upon request
of such Holder, as many copies of the foregoing as may be reasonably requested
by such Holder.
SECTION 3.3. Future Subsidiary Guarantors; Release of
Guarantees. After the Issue Date, the Company will cause (i) each Subsidiary
(other than a Subsidiary that does not guarantee obligations under the Senior
Credit Agreement, the 2006 Notes, the 2008 Notes and the 2013 Notes) created or
acquired by the Company or one or more of its Subsidiaries to execute and
deliver to the Trustee a Subsidiary Guarantee pursuant to which such Subsidiary
Guarantor will unconditionally Guarantee, on a joint and several basis, the full
and prompt payment of the principal of and interest (including any Contingent
Interest) and Additional Amounts, if any, on the Securities on a senior basis;
provided that (A) a Subsidiary Guarantee from any Subsidiary (other than MCA so
long as all or any portion of the 2006 Notes shall remain outstanding) shall be
released upon the release of such Subsidiary from any liability under (x) the
indentures relating to the 2006 Notes, the 2008 Notes, the 2013 Notes or any
related guarantee or similar obligation and (y) any Senior Credit Agreement and
any guarantee or similar obligation in respect thereof and (B) MCA shall be
released from its obligations under its Subsidiary Guarantee upon the repayment
in full of the 2006 Notes (so long as no default or event of default shall have
occurred as a consequence thereof) and the release of MCA from any liability
under the indentures relating to the 2008 Notes and the 2013 Notes and any
obligation it may have in respect of the Senior Credit Agreement and any
guarantee or similar obligation in respect thereof; provided that such release
of a Subsidiary Guarantor shall not occur in the event such Subsidiary Guarantor
is required to deliver a Subsidiary Guarantee in accordance with the paragraph
below and then such Subsidiary Guarantee shall only be released in accordance
with the paragraph below. Upon notice by the Company to the Trustee of the
occurrence of the events described in either of the two preceding sentences, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any Subsidiary Guarantor from its obligations under the Subsidiary
Guarantee.
The Company will not permit any Subsidiary to Guarantee the
payment of any Debt of the Company unless (i) such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for a
Guarantee of payment of the Securities by such Subsidiary; (ii) such Subsidiary
waives and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any Subsidiary as a result of any payment by such
Subsidiary under its Subsidiary Guarantee; and (iii) such Subsidiary shall
deliver to the Trustee an Opinion of Counsel to the effect that (A) the
supplemental indenture has been duly executed and authorized and (B) the
supplemental indenture constitutes a valid, binding and enforceable obligation
of such Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all laws
relating to fraudulent transfers) and except insofar as enforcement thereof is
subject to general principles of equity; provided that such Subsidiary Guarantee
shall be released upon the release of such Subsidiary from liability in respect
of Guarantees of Debt of the Company; and, provided,
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further, that any release of a Subsidiary Guarantee under the preceding proviso
will not impair the rights of the Holders to receive Subsidiary Guarantees of
the Securities in accordance with this paragraph in the event future Debt of the
Company is Guaranteed by such Subsidiary.
SECTION 3.4. Maintenance of Office or Agency. The Company will
maintain in The City of New York, an office or agency where the Securities may
be presented or surrendered for payment, where, if applicable, the Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The agency of National City Bank (the "Agent")
currently located at National City Bank c/o The Depository Trust Company,
Transfer Agent Drop Service, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Entrance, New York,
New York 10041 in the City of New York shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any 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
Agent of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.5. Corporate Existence. Except as otherwise provided
in Article IV and Sections 4.1 and 10.2(b), the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership, limited liability company or
other existence of each Significant Subsidiary or the respective corporate,
partnership, limited liability company or other existences of each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company and the rights (charter and statutory) licenses and
franchises of the Company and each Significant Subsidiary or each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company; provided, however, that the Company shall not be
required to preserve any such right, license or franchise or the corporate,
partnership, limited liability company or other existence of any Significant
Subsidiary or the respective corporate, partnership, limited liability company
or other existences of each member of any group of Subsidiaries that taken
together would constitute a Significant Subsidiary of the Company, if the Board
of Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and each of its
Subsidiaries, taken as a whole, and that the loss thereof is not, and will not
be, disadvantageous in any material respect to the Holders; provided, further,
that the Company shall not be required to preserve any such right, license or
franchise or the corporate, partnership, limited liability company or other
existence of a Subsidiary that is neither a Significant Subsidiary nor a member
of any group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company.
33
SECTION 3.6. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary and (ii) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP or where the failure to effect such payment will not be disadvantageous to
the Holders.
SECTION 3.7. Payments for Consent. Neither the Company nor any
of its Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fees or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or is paid to all Holders of the Securities
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or amendment.
SECTION 3.8. Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each Fiscal Year of the Company
an Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers know
of any Default or Event of Default that occurred during such period. If they do,
the certificate shall describe the Default or Event of Default, its status and
the action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 3.9. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.10. Statement by Officers as to Default. The Company
shall deliver to the Trustee, as soon as possible and in any event within 30
days after the Company becomes aware of the occurrence of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default, its status and the action which the Company
proposes to take with respect thereto.
SECTION 3.11. Tax Treatment. The Company agrees, and by
acceptance of beneficial ownership interest in the Securities each beneficial
holder of Securities will be deemed to have agreed, for United States federal
income tax purposes (1) to treat the Securities as indebtedness that is subject
to Treas. Reg. Sec. 1.1275-4 (the "Contingent Payment Regulations") and, for
purposes of the Contingent Payment Regulations, to treat the fair market value
of any stock beneficially received by a beneficial holder upon any conversion of
the
34
Securities as a contingent payment and (2) to be bound by the Company's
determination of the "comparable yield" and "projected payment schedule," within
the meaning of the Contingent Payment Regulations, with respect to the
Securities. A Holder of Securities may obtain the issue price, the amount of
original issue discount, issue date, yield to maturity, comparable yield and
projected payment schedule by submitting a written request for such information
to the Company at the following address: Manor Care, Inc., 000 Xxxxx Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxxxx X. Xxxxxx,
Chief Financial Officer.
SECTION 3.12. Additional Amounts. If Additional Amounts are
payable by the Company pursuant to the Registration Rights Agreement, the
Company shall deliver to the Trustee an Officers' Certificate to that effect
stating (i) the amount of such Additional Amounts that are payable and (ii) the
date on which such Additional Amounts are payable. Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Additional Amounts are payable. If the Company
has paid Additional Amounts directly to the persons entitled to them, the
Company shall deliver to the Trustee an Officers' Certificate setting forth the
particulars of such payment.
ARTICLE IV
Successor Company
SECTION 4.1. Consolidation, Merger and Sale of Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") if not the Company shall be a corporation,
partnership, trust or limited liability company organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities, this Indenture and the
Registration Rights Agreement;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
(iii) each Subsidiary Guarantor (unless it is the other
party to the transactions described above, in which case clause (i) and
Section 10.2 shall apply) shall have by supplemental indenture
confirmed that its Subsidiary Guarantee shall apply for such Person's
obligations in respect of this Indenture and the Securities and its
obligations under the Registration Rights Agreement shall continue to
be in effect; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if
any, comply with this Indenture.
35
For purposes of this Section 4.1, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture,
but, in the case of a lease of all or substantially all its assets, the Company
will not be released from the obligation to pay the principal of and interest
(including any Contingent Interest) and Additional Amounts, if any, on the
Securities.
ARTICLE V
Redemption of Securities
SECTION 5.1. Optional Redemption. The Securities may be
redeemed, as a whole or from time to time in part, subject to the conditions and
at the redemption price specified in paragraph 6 of the form of Securities set
forth in Exhibit A hereto, which are hereby incorporated by reference and made a
part of this Indenture, together with accrued and unpaid interest (including any
Contingent Interest) and Additional Amounts to the Redemption Date.
SECTION 5.2. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 5.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, upon not later than the earlier of the date that
is 30 days prior to the Redemption Date fixed by the Company or the date on
which notice is given to the Holders (except as provided in Section 5.5 or
unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 5.4. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed at any time
pursuant to an optional redemption, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the outstanding Securities not previously called for redemption,
by lot, or on a pro rata basis among the classes of Securities or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements) and which may provide for the
selection for redemption of portions of the principal of the Securities;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than $1,000.
36
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
If any Securities selected for partial redemption are
thereafter surrendered for conversion in part before termination of the
conversion right with respect to the portion of the Securities so selected, the
converted portion of such Securities shall be deemed (so far as may be), solely
for purposes of determining the aggregate principal amount of Securities to be
redeemed by the Company, to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection. Nothing
in this Section 5.4 shall affect the right of any Holder to convert any
Securities pursuant to Article XII before the termination of the conversion
right with respect thereto.
SECTION 5.5. Notice of Redemption. Notice of redemption shall
be given in the manner provided for in Section 13.2 not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. At the Company's expense, the Trustee shall give notice of redemption
in the Company's name and at the Company's expense; provided, however, that the
Company shall deliver to the Trustee, at least 45 days prior to the Redemption
Date, an Officers' Certificate requesting that the Trustee give such notice at
the Company's expense and setting forth the information to be stated in such
notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of
accrued interest (including any Contingent Interest) and Additional
Amounts, if any, to the Redemption Date payable as provided in Section
5.7, if any,
(3) the then current Conversion Price, a
statement that the Securities called for redemption may be converted at
any time before the close of business on the Business Day prior to the
Redemption Date, and that Holders who wish to convert Securities must
comply with the procedures in paragraph 8 of the Securities,
(4) if less than all outstanding Securities are
to be redeemed, the identification of the particular Securities (or
portion thereof) to be redeemed, as well as the aggregate principal
amount of Securities to be redeemed and the aggregate principal amount
of Securities to be outstanding after such partial redemption,
(5) in case any Security is to be redeemed in
part only, the notice which relates to such Security shall state that
on and after the Redemption Date, upon
37
surrender of such Security, the Holder will receive, without charge, a
new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(6) that on the Redemption Date the redemption
price (and accrued interest, if any, (including any Contingent
Interest) and Additional Amounts, if any, to the Redemption Date
payable as provided in Section 5.7) will become due and payable upon
each such Security, or the portion thereof, to be redeemed, and, unless
the Company defaults in making the redemption payment, that interest,
Contingent Interest, if any, and Additional Amounts, if any, on
Securities called for redemption (or the portion thereof) will cease to
accrue on and after said date,
(7) the place or places where such Securities
are to be surrendered for payment of the redemption price and accrued
interest, if any, Contingent Interest, if any, and Additional Amounts,
if any,
(8) the name and address of the Paying Agent and
the Conversion Agent,
(9) that Securities called for redemption must
be surrendered to the Paying Agent to collect the redemption price,
(10) the CUSIP number, and that no representation
is made as to the accuracy or correctness of the CUSIP number, if any,
listed in such notice or printed on the Securities, and
(11) the paragraph of the Securities pursuant to
which the Securities are to be redeemed.
SECTION 5.6. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.6) an amount of money sufficient to pay the
redemption price of, and accrued interest, Contingent Interest, if any, and
Additional Amounts, if any, on, all the Securities which are to be redeemed on
that date other than Securities or portions of Securities called for redemption
that are beneficially owned by the Company and have been delivered by the
Company to the Trustee for cancellation.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price
therein specified (together with accrued and unpaid interest, if any, Contingent
Interest, if any, and Additional Amounts, if any, to but excluding the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the redemption price and accrued and unpaid interest, any
Contingent Interest, and Additional Amounts, if any) such Securities shall cease
to bear interest, Contingent Interest or Additional Amounts. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the redemption price, together with accrued
interest, if any, any Contingent Interest, and Additional Amounts, if any to the
38
Redemption Date (subject to the rights of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest, any Contingent Interest and any Additional Amounts from the Redemption
Date at the rate borne by the Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which
is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 3.4 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security at the expense of the Company, a new Security or
Securities, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered, provided that each such new
Security will be in a principal amount of $1,000 or integral multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. Each of the following is an
"Event of Default":
(1) default in any payment of interest
(including any Contingent Interest) or Additional Amounts (as required
by the Registration Rights Agreement) on any Security when the same
becomes due and payable, and such default continues for a period of 30
days;
(2) default in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
(3) failure by the Company or any Subsidiary
Guarantor to comply with any of its obligations under Article IV or
Section 10.2;
(4) the Company defaults in the performance of
or a breach by the Company of any other covenant or agreement in this
Indenture or under the Securities (other than those referred to in (1),
(2) or (3) above) and such default continues for 60 days after the
notice specified below;
(5) there is a default under any mortgage,
indenture or instrument under which there may be issued or by which
there may be outstanding, or by which there may be secured or evidenced
any Debt for money borrowed by the Company or any of its Subsidiaries
(other than Non-Recourse Debt of a Non-Recourse Subsidiary), whether
such Debt now exists, or is created after the date of this Indenture,
which default
39
(A) is caused by a failure to pay
principal of, or interest or premium, if any, on such Debt prior to the
expiration of the grace period provided in such Debt ("Payment
Default") or
(B) results in the acceleration of such
Debt prior to its maturity (the "cross acceleration provision")
and, in each case, the principal amount of any such Debt, together with
the principal amount of any other such Debt under which there has been
a Payment Default or the maturity of which has been so accelerated,
aggregates $20.0 million or more or its foreign currency equivalent at
the time and such acceleration shall not have been rescinded or
annulled within 10 days after written notice of such acceleration has
been received by the Company or such Subsidiary;
(6) the Company pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or
proceeding;
(B) consents to the entry of judgment,
decree or order for relief against it in an involuntary case or
proceeding;
(C) consents to the appointment of a
Custodian (as defined below) of it or for any substantial part of its
property; or
(D) makes a general assignment for the
benefit of its creditors;
(E) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it;
(F) takes any corporate action to
authorize or effect any of the foregoing; or
(G) takes any comparable action under
any foreign laws relating to insolvency; or
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
in an involuntary case;
(B) appoints a Custodian of the Company
for all or substantially all of the Company's property; or
(C) orders the winding up or
liquidation of the Company; and
in each case the order or decree or relief remains unstayed and in
effect for 90 days; or
40
(8) there has been entered in a court of
competent jurisdiction a final judgment for the payment of $20.0
million or more rendered against the Company or any Subsidiary, which
judgment is not fully covered by insurance or not discharged or stayed
within 90 days after (A) the date on which the right to appeal thereof
has expired if no such appeal has commenced, or (B) the date on which
all rights to appeal have been extinguished ("judgment default
provision").
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
Notwithstanding the foregoing, a Default under clause (4) of
this Section 6.1 will not constitute an Event of Default until the Trustee or
the Holders of 25% or more in principal amount of the outstanding Securities
notify the Company of the Default in writing and the Company does not cure such
Default within the time specified in clause (4) of this Section 6.1 after
receipt of such notice.
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 Default or Event of Default under clauses (3), (4), (5), (6), (7) or (8)
of this Section 6.1, which such notice shall contain the status thereof and a
description of the action being taken or proposed to be taken by the Company in
respect thereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least
25% in outstanding principal amount of the outstanding Securities by notice to
the Company and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of and accrued and unpaid interest, if any,
(including any Contingent Interest) and Additional Amounts, if any, on all the
Securities to be due and payable. Upon such a declaration, such principal,
premium, if any, and accrued and unpaid interest (including any Contingent
Interest) and Additional Amounts, if any, shall be due and payable immediately.
SECTION 6.3. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest (including any Contingent Interest) and
Additional Amounts, if any, on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may (a) waive, by their consent
41
(including, without limitation consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities), an existing Default or
Event of Default and its consequences except (i) a Default or Event of Default
in the payment of the principal of or interest (including any Contingent
Interest) and Additional Amounts, if any, on a Security or (ii) a Default or
Event of Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Securityholder affected and (b) rescind any
such acceleration with respect to the Securities and its consequences if (1)
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default, other than the
nonpayment of the principal of and interest (including any Contingent Interest)
and Additional Amounts, if any, on the Securities that have become due solely by
such declaration of acceleration, have been cured or waived. When a Default or
Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any consequent
right.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Sections 7.1 and 7.2 that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount
of the outstanding Securities have requested that the Trustee to pursue
the remedy;
(3) such Holders have offered to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee has not complied with such
request within 60 days after receipt of the request and the offer of
security or indemnity; and
(5) the Holders of a majority in principal
amount of the outstanding Securities have not given the Trustee a
direction that, in the opinion of the Trustee, is inconsistent with
such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
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SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of or interest (including any Contingent Interest) and Additional
Amounts, if any, on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, 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 6.8. Collection Suit by Trustee. If an Event of
Default specified in clauses (1) or (2) of Section 6.1 occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount then due and owing (together with
interest on any unpaid interest (including any Contingent Interest) to the
extent lawful) and the amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective
creditors or properties and, unless prohibited by law or applicable regulations,
may be entitled and empowered to participate as a member of any official
committee of creditors appointed in such matter, and may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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 it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest (including any Contingent
Interest) and Additional Amounts, if any, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
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 Trustee, a court in its
discretion may require the filing by any party litigant in the
43
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding
principal amount of the Securities.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs; provided that if an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against loss, liability or expense.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture 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,
opinions or orders furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates, opinions or orders which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine such 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 liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
44
(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 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) 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.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(i) 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.
(j) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses (including reasonable attorneys' fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) the Trustee may conclusively rely on any document
(whether in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document. The Trustee
shall receive and retain financial reports and statements of the Company as
provided herein, but shall have no duty to review or analyze such reports or
statements to determine compliance under covenants or other obligations of the
Company.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
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(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers, unless the Trustee's conduct constitutes willful
misconduct or negligence.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted
to engage in transactions with the Company; provided, however, that if the
Trustee acquires any conflicting interest the Trustee must (i) eliminate such
conflict within 90 days of acquiring such conflicting interest, (ii) apply to
the SEC for permission to continue acting as Trustee or (iii) resign.
SECTION 7.4. 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 Securities, shall not be accountable for the Company's use
of the proceeds from the Securities, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail by first class mail to each Securityholder at
the address set forth in the Securities Register 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 or interest (including any
Contingent Interest) and Additional Amounts, if any, on any Security (including
payments pursuant to the optional redemption or required repurchase provisions
of such Security, if any), the Trustee may withhold the notice if and so long as
its board of directors, a committee of its board of directors or a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports required by TIA
Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company
46
agrees to notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.
SECTION 7.7. 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 as the Company and the Trustee shall from
time to time agree in writing. 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 upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
indemnify the Trustee against any and all loss, liability, damages, claims or
expense (including reasonable attorneys' fees and expenses) incurred by it
without negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.7) and of defending itself against any claims (whether asserted by any
Securityholder, the Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall provide
reasonable cooperation at the Company's expense in the defense. The Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel, provided that the Company shall not be required to pay such fees and
expenses if it assumes the Trustee's defense, and, in the reasonable judgment of
outside counsel to the Trustee, there is no conflict of interest between the
Company and the Trustee in connection with such defense. The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest (including any Contingent Interest) and Additional
Amounts, if any, on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or Debt of the Company.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in clauses (6) and (7) of Section
6.1 with respect to the Company, the expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
47
(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the 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.
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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least 10% in principal amount of the Securities may petition, at
the Company's expense, any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b), any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of
48
any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12. Trustee's Application for Instruction from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VIII
Discharge of Indenture
SECTION 8.1. Discharge of Liability on Securities. When (1)
the Company shall deliver to the Registrar for cancellation all Securities
theretofore authenticated (other than any Securities which have been destroyed,
lost or stolen and in lieu of or in substitution for which other Securities
shall have been authenticated and delivered) and not theretofore canceled, or
(2) all the Securities not theretofore canceled or delivered to the Registrar
for cancellation shall have (a) been deposited for conversion and the Company
shall deliver to the Holders shares of Common Stock sufficient to pay all
amounts owing in respect of all Securities (other than any Securities which
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered) not
49
theretofore canceled or delivered to the Registrar for cancellation or (b)
become due and payable on the Stated Maturity Date, Purchase Date, Fundamental
Change Purchase Date or Redemption Date, as applicable, and the Company shall
deposit with the Trustee cash or shares of Common Stock, as applicable,
sufficient to pay all amounts owing in respect of all Securities (other than any
Securities which shall have been mutilated, destroyed, lost or stolen and in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) not theretofore canceled or delivered to the
Registrar for cancellation, including the principal amount and interest
(including Contingent Interest, if any) and Additional Amounts accrued and
unpaid to such Stated Maturity Date, Purchase Date, Fundamental Change Purchase
Date or Redemption Date, as the case may be, and if in either case (1) or (2)
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then the Indenture with respect to the Securities shall cease to
be of further effect (except as to (i) remaining rights of registration of
transfer, substitution and exchange and conversion of Securities; (ii) rights
hereunder of Holders to receive payments of the amounts then due, including
interest (including Contingent Interest, if any) and Additional Amounts with
respect to the Securities and the other rights, duties and obligations of
Holders, as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee; and (iii) the rights, obligations and immunities of
the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and Registrar
under the Indenture with respect to the Securities), and the Trustee, on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
as required by Section 8.3 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging the
Indenture with respect to the Securities; the Company, however, hereby agrees to
reimburse the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar for any costs or expenses thereafter reasonably and properly incurred
by the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar and to compensate the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar for any services thereafter reasonably and
properly rendered by the Trustee, Authenticating Agent, Paying Agent, Conversion
Agent and Registrar in connection with the Indenture with respect to the
Securities or the Securities.
SECTION 8.2. Reinstatement. If the Trustee or the Paying Agent
is unable to apply any money to the Holders entitled thereto by reason of any
order or judgment of any court of governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under the
Indenture with respect to the Securities and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.1 until such
time as the Trustee or the Paying Agent is permitted to apply all such money in
accordance with the Indenture and the Securities to the Holders entitled
thereto; provided, however, that if the Company makes any payment of principal
amount or interest (including Contingent Interest) or Additional Amounts, if
any, of any Securities following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
SECTION 8.3. Officers' Certificate; Opinion of Counsel. Upon
any application or demand by the Company to the Trustee to take any action under
Section 8.1, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in the Indenture
relating to the proposed action have been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or Opinion of Counsel provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant pursuant to the previous paragraph shall include: (1) a statement that
the Person making such certificate or
50
opinion has read such covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statement or
opinion contained in such certificate or opinion is based; (3) a statement that,
in the opinion of such Person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such Person, such condition or covenant has
been complied with.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article IV in respect of the
assumption by a Successor Company of an obligation of the Company under
this Indenture;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities; provided, however,
that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the
Code;
(4) to add Guarantees with respect to the
Securities;
(5) to secure the Securities;
(6) to add to the covenants of the Company for
the benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(7) to comply with any requirement of the SEC in
connection with the qualification of this Indenture under the TIA; or
(8) to make any change that does not materially
adversely affect the rights of any Securityholder.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.2. With Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in principal amount of the Securities then outstanding
(including, without limitation, consents obtained in
51
connection with a purchase of, or tender offer or exchange offer for,
Securities) and compliance with the provisions of this Indenture may be waived
with the written consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities). However, without the consent of each Securityholder
affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment;
(2) reduce the rate of or extend the stated time
for payment of interest, including Contingent Interest, on any
Security;
(3) reduce the principal of or extend the Stated
Maturity of any Security;
(4) make any change that adversely affects the
right to convert any Securities;
(5) reduce the redemption price, the Fundamental
Change Purchase Price, the Purchase Price payable upon the redemption
or repurchase of any Security or amend or modify in any manner adverse
to holders of the Securities the Company's obligation to make such
payments, whether through an amendment to or waiver of Article V ,
Article IX , a definition or otherwise;
(6) make any Security payable in money other
than that stated in the Security (it being understood that all
references to cash in this Indenture and the Securities are to U.S.
legal tender) or, other than in accordance with the provisions of this
Indenture in effect on the Issue Date, eliminate any existing Guarantee
of the Securities;
(7) impair the right of any Holder to receive
payment of principal of and interest (including any Contingent
Interest) and any Additional Amounts on such Holder's Securities on or
after the due dates therefor or to institute suit for the enforcement
of any payment on or with respect to such Holder's Securities; or
(8) make any change to the amendment provisions
which require each Holder's consent or to the waiver provisions.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof. A
consent to any amendment or waiver under this Indenture by any Holder of the
Securities given in connection with a tender or exchange of such Holder's
Securities will not be rendered invalid by such tender or exchange.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
52
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective or
otherwise in accordance with any related solicitation documents. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.1 or 9.2, as applicable.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Sections 7.1 and 7.2) shall
be fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this Indenture
and that such amendment is the legal, valid and binding obligation of the
Company and any Subsidiary Guarantors, enforceable against them in accordance
with its terms, subject to customary exceptions and complies with the provisions
hereof (including Section 9.3).
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ARTICLE X
Subsidiary Guarantee
SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor
hereby fully, unconditionally and irrevocably guarantees, as primary obligor and
not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities and the Trustee the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of and interest, including any Contingent
Interest and Additional Amounts, if any, on the Securities and all other
obligations and liabilities of the Company under this Indenture (including
without limitation interest (including any Contingent Interest) accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company or any Subsidiary
Guarantor whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) (all the foregoing being hereinafter collectively
called the "Obligations"). Each Subsidiary Guarantor further agrees (to the
extent permitted by law) that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from it, and that it will
remain bound under this Article X notwithstanding any extension or renewal of
any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (f) any change in the ownership of
the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a Guarantee of payment when due (and not a
Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
The obligations of each Subsidiary Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason (other than payment of the Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense of setoff, counterclaim, recoupment or termination whatsoever or
by reason of the invalidity, illegality or unenforceability of the Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations
of each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder to assert any claim or demand or
to enforce any remedy under this Indenture, the Securities or any other
agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or
54
to any extent vary the risk of any Subsidiary Guarantor or would otherwise
operate as a discharge of such Subsidiary Guarantor as a matter of law or
equity.
Subject to the provisions of Section 3.3, each Subsidiary
Guarantor agrees that its Subsidiary Guarantee herein shall remain in full force
and effect until payment in full of all the Obligations or such Subsidiary
Guarantor is released from its Subsidiary Guarantee upon the merger or the sale
of all the Capital Stock or assets of the Subsidiary Guarantor in compliance
with Section 10.2. Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
(including any Contingent Interest) and Additional Amounts, if any, on any of
the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of
(i) the unpaid amount of such Obligations then due and owing and (ii) accrued
and unpaid interest (including any Contingent Interest) and Additional Amounts,
if any, on such Obligations then due and owing (but only to the extent not
prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (y) in the
event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary
Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all
reasonable costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release
and Discharge Upon Merger or Consolidation; Termination on Conversion. (a) The
obligations of each Subsidiary Guarantor hereunder will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including, without limitation, any
guarantees under the Senior Credit Agreement, the 2006 Notes, the 2008 Notes and
the 2013 Notes) and after giving effect to any collections from or payments made
by or on behalf of any other Subsidiary Guarantor in respect of the obligations
of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state
55
law and not otherwise being void or voidable under any similar laws affecting
the rights of creditors generally.
(b) Each Subsidiary Guarantor may consolidate with or
merge into or sell its assets to the Company or another Subsidiary Guarantor
without limitation. Subject to Article III and Article IV, each Subsidiary
Guarantor may consolidate with or merge into or sell all or substantially all
its assets to a corporation, partnership or trust other than the Company or
another Subsidiary Guarantor (whether or not affiliated with the Subsidiary
Guarantor), except that if the surviving corporation of any such merger or
consolidation is a Subsidiary of the Company, such merger, consolidation or sale
shall not be permitted unless (i) the Person formed by or surviving any such
consolidation or merger assumes all the obligations of such Subsidiary under the
Subsidiary Guarantee pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee in respect of the Securities, this
Indenture and the Subsidiary Guarantee, (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists; and (iii) the Company
delivers to the Trustee an Officers' Certificate and an Opinion of Counsel
addressed to the Trustee with respect to the foregoing matters. Upon the sale or
disposition of a Subsidiary Guarantor (by merger, consolidation, the sale of its
Capital Stock or the sale of all or substantially all of its assets (other than
by lease)) and whether or not the Subsidiary Guarantor is the surviving
corporation in such transaction to a Person (whether or not an Affiliate of the
Subsidiary Guarantor) which is not the Company or a Subsidiary of the Company,
which sale or disposition is otherwise in compliance with this Indenture, such
Subsidiary Guarantor will be released from all its obligations under this
Indenture and its Subsidiary Guarantee and such Subsidiary Guarantee will
terminate; provided, however, that any such termination will occur only to the
extent that (x) with respect to each Subsidiary Guarantor other than MCA, each
such Subsidiary Guarantor will be released from obligations under its Subsidiary
Guarantee if all the obligations of such Subsidiary Guarantor under the Senior
Credit Agreement, the 2006 Notes, the 2008 Notes and the 2013 Notes and related
documentation terminate upon consummation of such transaction and (y) with
respect to MCA, MCA will be released from its obligations under its Subsidiary
Guarantee if the Company and its remaining Subsidiaries are not liable with
respect to any Debt of MCA. Each Subsidiary Guarantee with respect to a Security
will automatically terminate immediately prior to such Security's conversion.
(c) Each Subsidiary Guarantor will be deemed released
from all its obligations under this Indenture, its Subsidiary Guarantee and the
Registration Rights Agreement and such Subsidiary Guarantee will terminate upon
the discharge of the Securities pursuant to the provisions of Article VIII
hereof.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that any Subsidiary Guarantor shall have paid
more than its proportionate share of any payment made on the obligations under
the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek
and receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. The
provisions of this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each
Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the
full amount guaranteed by such Subsidiary Guarantor hereunder.
56
SECTION 10.4. No Subrogation. Notwithstanding any payment or
payments made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor
shall be entitled to be subrogated to any of the rights of the Trustee or any
Holder against the Company or any other Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by the Trustee or any Holder for
the payment of the Obligations, nor shall any Subsidiary Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company
on account of the Obligations are paid in full. If any amount shall be paid to
any Subsidiary Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full, such amount shall be
held by such Subsidiary Guarantor in trust for the Trustee and the Holders,
segregated from other funds of such Subsidiary Guarantor, and shall, forthwith
upon receipt by such Subsidiary Guarantor, be turned over to the Trustee in the
exact form received by such Subsidiary Guarantor (duly indorsed by such
Subsidiary Guarantor to the Trustee, if required), to be applied against the
Obligations.
ARTICLE XI
Purchase at Option of Holder Upon a Fundamental Change; Repurchase at the Option
of Holders
SECTION 11.1. Purchase at the Option of the Holder Upon a
Fundamental Change. If a Fundamental Change shall occur at any time, each Holder
shall have the right, at such Holder's option, to require the Company to
purchase any or all of such Holder's Securities on a date that is no later than
35 days after the date of the Company Notice of the occurrence of such
Fundamental Change (subject to extension to comply with applicable law, as
provided in Section 11.3(d)) (the "Fundamental Change Purchase Date"). The
Securities shall be repurchased in integral multiples of $1,000 of the Principal
Amount. The Company shall purchase such Securities at a price (the "Fundamental
Change Purchase Price") equal to 100% of the principal amount of the Securities
to be repurchased plus accrued and unpaid interest, including any Contingent
Interest, and Additional Amounts, if any, to but excluding the Fundamental
Change Purchase Date. Notwithstanding anything herein to the contrary, the
portion of the Fundamental Change Purchase Price that constitutes accrued and
unpaid interest (including any Contingent Interest) and Additional Amounts, if
any, on the Securities, shall be paid in cash. No Securities may be repurchased
at the option of the Holders due to a Fundamental Change if there has occurred
and is continuing an Event of Default (other than an Event of Default that is
cured by the payment of the purchase price of all such Securities).
(a) Notice of Fundamental Change. The Company, or at its
request (which must be received by the Paying Agent at least three Business Days
(or such lesser period as agreed to by the Paying Agent) prior to the date the
Paying Agent is requested to give such notice as described below), the Paying
Agent in the name of and at the expense of the Company, shall mail to all
Holders and the Trustee a Company Notice of the occurrence of a Fundamental
Change and of the purchase right arising as a result thereof, including the
information required by Section 11.3(a) hereof, on or before the 20th day after
the occurrence of such Fundamental Change. The Company shall promptly furnish to
the Paying Agent a copy of such Company Notice.
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(b) Exercise of Option. For a Security to be so purchased
at the option of the Holder, the Paying Agent must receive such Security duly
endorsed for transfer, together with a written notice of purchase (a
"Fundamental Change Purchase Notice") and the form entitled "Form of Fundamental
Change Purchase Notice" on the reverse thereof duly completed, on or before the
35th day after the date of the Company Notice of the occurrence of such
Fundamental Change, subject to extension to comply with applicable law. The
Fundamental Change Purchase Notice shall state:
(1) if certificated, the certificate numbers of
the Securities which the Holder shall deliver to be purchased;
(2) the portion of the principal amount of the
Securities which the Holder shall deliver to be purchased, which
portion must be $1,000 in principal amount or an integral multiple
thereof;
(3) if the Company elects, pursuant to a Company
Notice, to pay the Fundamental Change Purchase Price to be paid, in
whole or in part, in Common Stock but such portion of the Fundamental
Change Purchase Price shall ultimately be payable to such Holder in
cash because any of the conditions to the payment of the Fundamental
Change Purchase Price in Common Stock are not satisfied prior to or on
the Fundamental Change Purchase Date, as set forth herein, whether such
Holder elects (x) to withdraw such Fundamental Change Purchase Notice
as to some or all of the Securities to which such Fundamental Change
Purchase Notice relates (stating the principal amount and certificate
numbers of the Securities as to which such withdrawal shall relate), or
(y) to receive cash in respect of the entire Fundamental Change
Purchase Price for all Securities (or portions thereof) to which such
Fundamental Change Purchase Notice relates. If a Holder, in such
Holder's Fundamental Change Purchase Notice (and in any written notice
of withdrawal of a portion of a Holder's Securities previously
submitted for purchase pursuant to a Fundamental Change Purchase
Notice, the portion that remains subject to the Fundamental Change
Purchase Notice), fails to indicate such Holder's choice with respect
to the foregoing election, such Holder shall be deemed to have elected
to receive cash in respect of all Securities subject to such
Fundamental Change Purchase Notice in the circumstances described in
the preceding sentence; and
(4) that such Securities shall be purchased as
of the Fundamental Change Purchase Date pursuant to the terms and
conditions specified in paragraph 7 of the Securities and in this
Indenture; and
(c) Procedures. The Company shall purchase from a Holder,
pursuant to this Section 11.1, Securities if the principal amount of such
Securities is $1,000 or a multiple of $1,000 if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 11.1 shall be consummated by the delivery of the Fundamental Change
Purchase Price to be received by the Holder promptly following the later of the
Fundamental Change Purchase Date or the time of book-entry transfer or delivery
of the Securities.
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Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Fundamental Change Purchase Notice contemplated by this
Section 11.1 shall have the right at any time prior to the close of business on
the Business Day prior to the Fundamental Change Purchase Date to withdraw such
Fundamental Change Purchase Notice (in whole or in part) by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
11.3(b).
The Paying Agent shall promptly notify the Company of the receipt by it
of any Fundamental Change Purchase Notice or written notice of withdrawal
thereof.
On or before 10:00 a.m. (New York City time) on the Fundamental Change
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash or Common Stock sufficient to pay the
aggregate Fundamental Change Purchase Price of the Securities to be purchased
pursuant to this Section 11.1. Payment by the Paying Agent of the Fundamental
Change Purchase Price for such Securities shall be made promptly following the
later of the Fundamental Change Purchase Date or the time of book-entry transfer
or delivery of such Securities. If the Company is delivering Common Stock, the
Company shall deliver to each Holder entitled to receive Common Stock, through
the Paying Agent, a certificate for the number of full shares of Common Stock,
as applicable, issuable in payment of such Fundamental Change Purchase Price and
cash in lieu of any fractional interests. The Person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record following the Fundamental Change Purchase Date. Subject to Section 12.2
herein and paragraph 7 of the Securities, no payment or adjustment shall be made
for dividends on the Common Stock the record date for which occurred on or prior
to the Fundamental Change Purchase Date. If the Paying Agent holds, in
accordance with the terms of this Indenture, cash or Common Stock sufficient to
pay the Fundamental Change Purchase Price of such Securities on the Fundamental
Change Purchase Date, then, on and after such date, such Securities shall cease
to be outstanding and interest (including any Contingent Interest) and
Additional Amounts, if any, on such Securities shall cease to accrue, whether or
not book-entry transfer of such Securities is made or such Securities are
delivered to the Paying Agent, and all other rights of the Holder shall
terminate (other than the right to receive the Fundamental Change Purchase Price
and previously accrued and unpaid interest (including any Contingent Interest)
and Additional Amounts, if any, upon delivery or transfer of the Securities). If
a Holder is paid in Common Stock, the Company shall pay any documentary, stamp
or similar issue or transfer tax due on such issue of shares of Common Stock.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares of Common Stock to be issued in a name other than the
Holder's name. The Paying Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the Holder's
name until the Paying Agent receives a sum sufficient to pay any tax which shall
be due because the shares of Common Stock are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any withholding tax required by
law.
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 cash or Common Stock held by the Paying Agent for the
payment of the Fundamental Change Purchase Price and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or an
Affiliate of the Company acts as Paying Agent, it shall segregate the cash and
59
Common Stock held by it as Paying Agent and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to deliver all cash or Common
Stock held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon doing so, the Paying Agent shall have no further liability
for the cash or Common Stock delivered to the Trustee.
SECTION 11.2. Purchase of Securities at the Option of the
Holder.
(a) On each of April 15, 2005, April 15, 2008, April 15,
2010, April 15, 2013 and April 15, 2018 (each, a "Purchase Date"), at a Purchase
Price 100% of the principal amount of the Securities to be repurchased plus
accrued and unpaid interest, including any Contingent Interest, and Additional
Amounts, if any, to but excluding the Purchase Date, a Holder shall have the
option to require the Company to purchase any outstanding Securities, upon:
(1) delivery to the Paying Agent by the Holder
of a written notice of purchase (a "Purchase Notice") at any time from
the opening of business on the date that is 20 Business Days prior to a
Purchase Date until the close of business on the fifth Business Day
prior to such Purchase Date, stating:
(i) if certificated, the certificate numbers of
the Securities which the Holder will deliver to be purchased,
or, if not certificated, the Purchase Notice must comply with
appropriate DTC procedures;
(ii) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased,
which portion must be $1,000 in principal amount or an
integral multiple thereof;
(iii) that such Securities shall be purchased as
of the Purchase Date pursuant to the terms and conditions
specified in paragraph 7 of the Securities and in this
Indenture; and
(iv) if the Company elects, pursuant to a Company
Notice, to pay the Purchase Price to be paid as of the April
15, 2008, the April 15, 2010, the April 15, 2013 or the April
15, 2018 Purchase Dates, in whole or in part, in Common Stock
but such portion of the Purchase Price shall ultimately be
payable to such Holder in cash because any of the conditions
to the payment of the Purchase Price (or portion thereof) in
Common Stock are not satisfied prior to the close of business
on the last Business Day prior to the relevant Purchase Date,
whether such Holder elects (x) to withdraw such Purchase
Notice as to some or all of the Securities to which such
Purchase Notice relates (stating the principal amount and
certificate numbers of the Securities as to which such
withdrawal shall relate), or (y) to receive cash in respect of
the entire Purchase Price for all Securities (or portions
thereof) to which such Purchase Notice relates (provided, that
if a Holder, in such Holder's Purchase Notice (and in any
written notice of withdrawal of a portion of a Holder's
Securities previously submitted for purchase pursuant to a
Purchase Notice, the portion that remains subject to the
Purchase Notice), fails to indicate such Holder's choice with
respect to the
60
foregoing election, such Holder shall be deemed to have
elected to receive cash in respect of all Securities subject
to such Purchase Notice under the foregoing circumstances);
and
(2) delivery or book-entry transfer of such
Securities to the Paying Agent prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying
Agent, such delivery or transfer being a condition to receipt by the
Holder of the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section 11.2 only if
the Securities so delivered or transferred to the Paying Agent shall
conform in all respects to the description thereof in the related
Purchase Notice.
(b) The Company shall purchase from a Holder, pursuant to
this Section 11.2, Securities if the principal amount of such Securities is
$1,000 or a multiple of $1,000 if so requested by such Holder.
(c) Any purchase by the Company contemplated pursuant to
the provisions of this Section 11.2 shall be consummated by the delivery of the
Purchase Price to be received by the Holder promptly following the later of the
Purchase Date or the time of book-entry transfer or delivery of the Securities.
(d) Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Purchase Notice contemplated by this
Section 11.2 shall have the right at any time prior to the close of business on
the Business Day prior to the Purchase Date to withdraw such Purchase Notice (in
whole or in part) by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 11.3(b).
(e) The Paying Agent shall promptly notify the Company of
the receipt by it of any Purchase Notice or written notice of withdrawal
thereof.
(f) On or before 10:00 a.m. (New York City time) on the
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash or Common Stock sufficient to pay the
aggregate Purchase Price of the Securities to be purchased pursuant to this
Section 11.2. Payment by the Paying Agent of the Purchase Price for such
Securities shall be made promptly following the later of the Purchase Date or
the time of book-entry transfer or delivery of such Securities. If the Company
is delivering Common Stock, the Company shall deliver to each Holder entitled to
receive Common Stock, through the Paying Agent, a certificate for the number of
full shares of Common Stock, as applicable, issuable in payment of such Purchase
Price and cash in lieu of any fractional interests. The Person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record following the Purchase Date. Subject to Section 12.2 herein and paragraph
7 of the Securities, no payment or adjustment shall be made for dividends on the
Common Stock the record date for which occurred on or prior to the Purchase
Date. If the Paying Agent holds, in accordance with the terms of the Indenture,
cash or Common Stock sufficient to pay the Purchase Price of such Securities on
the Purchase Date, then, on and after such date, such Securities shall cease to
be outstanding and interest (including any Contingent Interest) and Additional
Amounts, if any, on such Securities shall cease to
61
accrue, whether or not book-entry transfer of such Securities is made or such
Securities are delivered to the Paying Agent, and all other rights of the Holder
shall terminate (other than the right to receive the Purchase Price and
previously accrued interest (including any Contingent Interest) and Additional
Amounts, if any, upon delivery or transfer of the Securities). If a Holder is
paid in Common Stock, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on such issue of shares of Common Stock. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares of Common Stock to be issued in a name other than the Holder's name. The
Paying Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which shall be due because the shares
of Common Stock are to be issued in a name other than the Holder's name. Nothing
herein shall preclude any withholding tax required by law.
(g) 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 cash or Common Stock held by the
Paying Agent for the payment of the Purchase Price and shall notify the Trustee
of any default by the Company in making any such payment. If the Company or an
Affiliate of the Company acts as Paying Agent, it shall segregate the cash or
Common Stock held by it as Paying Agent and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to deliver all cash or Common
Stock held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon doing so, the Paying Agent shall have no further liability
for the cash or Common Stock delivered to the Trustee.
(h) Notwithstanding anything herein to the contrary, the
portion of the Purchase Price that constitutes accrued and unpaid interest
(including any Contingent Interest) and Additional Amounts, if any, on the
Securities, shall be paid in cash.
SECTION 11.3. Further Conditions and Procedures for Purchase
at the Option of the Holder Upon a Fundamental Change and Purchase of Securities
at the Option of the Holder.
(a) Notice of Purchase Date or Fundamental Change. The
Company shall send notices (each, a "Company Notice") to the Holders (and to
beneficial owners as required by applicable law) at their addresses shown in the
Securities Register maintained by the Registrar, and delivered to the Trustee
and Paying Agent, not less than 20 Business Days prior to each Purchase Date, or
on or before the 20th day after the occurrence of the Fundamental Change, as the
case may be (each such date of delivery, a "Company Notice Date"). Each Company
Notice shall include a form of Purchase Notice or Fundamental Change Purchase
Notice to be completed by a Holder and shall state:
(1) the applicable Purchase Price or Fundamental
Change Purchase Price, excluding accrued and unpaid interest,
Contingent Interest, if any, and Additional Amounts, if any, Conversion
Price at the time of such notice and, to the extent known at the time
of such notice, the amount of interest (including any Contingent
Interest), if any, and Additional Amounts, if any, that will be payable
with respect to the Securities on the applicable Purchase Date or
Fundamental Change Purchase Date;
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(2) the name and address of the Paying Agent and
the Conversion Agent;
(3) that Securities must be surrendered to the
Paying Agent to collect payment of the Purchase Price or Fundamental
Change Purchase Price;
(4) that Securities as to which a Purchase
Notice or Fundamental Change Purchase Notice has been given may be
converted only if the applicable Purchase Notice or Fundamental Change
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;
(5) that the Purchase Price or Fundamental
Change Purchase Price for any Securities as to which a Purchase Notice
or a Fundamental Change Purchase Notice, as applicable, has been given
and not withdrawn shall be paid by the Paying Agent promptly following
the later of the Purchase Date or Fundamental Change Purchase Date, as
applicable, or the time of book-entry transfer or delivery of such
Securities;
(6) whether the Company will pay the Purchase
Price or Fundamental Change Purchase Price, as the case may be, in
cash, in Common Stock or in a combination thereof (specifying the
percentages of each) and, if Common Stock is to be issued the method
for calculating the Market Price of the Common Stock;
(7) the procedures the Holder must follow under
Sections 11.1 or 11.2, as applicable, and Section 11.3;
(8) briefly, the conversion rights of the
Securities;
(9) that, unless the Company defaults in making
payment of such Purchase Price or Fundamental Change Purchase Price on
Securities covered by any Purchase Notice or Fundamental Change
Purchase Notice, as applicable, interest (including any Contingent
Interest) and Additional Amounts, if any, will cease to accrue on and
after the Purchase Date or Fundamental Change Purchase Date, as
applicable;
(10) the CUSIP or ISIN number of the Securities;
and
(11) the procedures for withdrawing a Purchase
Notice or Fundamental Change Purchase Notice.
Simultaneously with providing such Company Notice, the Company
will publish a notice containing the information in such Company Notice in a
newspaper of general circulation in The City of New York or publish such
information on its then existing website or through such other public medium as
it may use at the time.
At the Company's request, made at least five Business Days
prior to the date upon which such notice is to be mailed, and at the Company's
expense, the Paying Agent shall give the Company Notice in the Company's name;
provided, however, that, in all cases, the text of the Company Notice shall be
prepared by the Company.
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(b) Effect of Purchase Notice or Fundamental Change
Purchase Notice; Effect of Event of Default. Upon receipt by the Company of the
Purchase Notice or Fundamental Change Purchase Notice specified in Section
11.2(a) or Section 11.1(b), as applicable, the Holder of the Securities in
respect of which such Purchase Notice or Fundamental Change Purchase Notice, as
the case may be, was given shall (unless such Purchase Notice or Fundamental
Change Purchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Purchase Price or
Fundamental Change Purchase Price with respect to such Securities. Such Purchase
Price or Fundamental Change Purchase Price shall be paid by the Paying Agent to
such Holder promptly following the later of (x) the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, with respect to such
Securities (provided the conditions in Section 11.2(a) or Section 11.1(b), as
applicable, have been satisfied) and (y) the time of delivery or book-entry
transfer of such Securities to the Paying Agent by the Holder thereof in the
manner required by Section 11.2(a) or Section 11.1(b), as applicable. Securities
in respect of which a Purchase Notice or Fundamental Change Purchase Notice, as
the case may be, has been given by the Holder thereof may not be converted for
shares of Common Stock on or after the date of the delivery of such Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, unless such
Purchase Notice or Fundamental Change Purchase Notice, as the case may be, has
first been validly withdrawn as specified in the following two paragraphs.
A Purchase Notice or Fundamental Change Purchase Notice, as
the case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent at any time prior to 5:00 p.m., New
York City time, on the Business Day prior to the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, to which it relates
specifying:
(1) the principal amount of the Securities with
respect to which such notice of withdrawal is being submitted;
(2) if certificated, the certificate number of
the Securities in respect of which such notice of withdrawal is being
submitted, or, if not certificated, the written notice of withdrawal
must comply with appropriate DTC procedures; and
(3) the principal amount, if any, of such
Securities which remains subject to the original Purchase Notice or
Fundamental Change Purchase Notice, as the case may be, and which has
been or shall be delivered for purchase by the Company.
There shall be no purchase of any Securities pursuant to
Section 11.2 or Section 11.1, if an Event of Default has occurred and is
continuing (other than a default that is cured by the payment of the Purchase
Price or Fundamental Change Purchase Price, as the case may be). The Paying
Agent shall promptly return to the respective Holders thereof any Securities (x)
with respect to which a Purchase Notice or Fundamental Change Purchase Notice,
as the case may be, has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default
that is cured by the payment of the Purchase Price or Fundamental Change
Purchase Price, as the case may be) in which case, upon such return, the
Purchase Notice or Fundamental Change Purchase Notice with respect thereto shall
be deemed to have been withdrawn.
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(c) Securities Purchased in Part. Any Securities that are
to be purchased only in part shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver to the Holder of such
Securities, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Securities so surrendered which is not purchased or redeemed.
(d) Covenant to Comply with Securities Laws Upon Purchase
of Securities. In connection with any offer to purchase Securities under Section
11.2 or Section 11.1, the Company shall, to the extent applicable, (a) comply
with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the
Exchange Act, if applicable; (b) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, if applicable; and (c)
otherwise comply with all applicable federal and state securities laws so as to
permit the rights and obligations under Section 11.2 or Section 11.1 to be
exercised in the time and in the manner specified in Section 11.2 or Section
11.1.
(e) Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or property that remains unclaimed as
provided in paragraph 11 of the Securities, together with interest that the
Trustee or Paying Agent, as the case may be, has agreed to pay, if any, held by
them for the payment of a Purchase Price or Fundamental Change Purchase Price,
as the case may be; provided, however, that to the extent that the aggregate
amount of cash or property deposited by the Company pursuant to Section 11.2(f)
or Section 11.1(c), as applicable, exceeds the aggregate Purchase Price or
Fundamental Change Purchase Price, as the case may be, of the Securities or
portions thereof which the Company is obligated to purchase as of the Purchase
Date or Fundamental Change Purchase Date, as the case may be, then promptly on
and after the Business Day following the Purchase Date or Fundamental Change
Purchase Date, as the case may be, the Trustee and the Paying Agent shall return
any such excess to the Company together with interest that the Trustee or Paying
Agent, as the case may be, has agreed to pay, if any.
(f) Company's Right to Elect Manner of Payment of
Purchase Price. Subject to Section 11.2(h) or Section 11.1, the Company may
elect with respect to the April 15, 2008, the April 15, 2010, the April 15, 2013
or the April 15, 2018 Purchase Dates, or with respect to any Fundamental Change
Purchase Date, to pay the Purchase Price or Fundamental Change Purchase Price in
respect of the Securities to be purchased pursuant to this Indenture as of such
Purchase Date or Fundamental Change Purchase Date, (a) in cash or (b) Common
Stock (by the issuance of a number of shares of Common Stock equal to the
quotient obtained by dividing (x) the amount of cash to which the Holders would
have been entitled had the Company elected to pay all or such specified
percentage, as the case may be, of the Purchase Price or Fundamental Change
Purchase Price of such Securities in cash by (y) the Market Price of a share of
Common Stock), or (c) in any combination of cash and Common Stock, subject to
the conditions set forth herein. The Company shall pay cash for fractional
interests in Common Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate
65
certificates are to be presented). Each Holder whose Securities are purchased
pursuant to this Section 11.3 shall receive the same percentage of cash and/or
Common Stock in payment of the Purchase Price or Fundamental Change Purchase
Price for such Securities, except (a) as provided herein with regard to the
payment of cash in lieu of fractional interests in Common Stock and (b) in the
event that the Company is unable to purchase the Securities of a Holder or
Holders for Common Stock because any necessary qualifications or registrations
of the Common Stock under applicable federal or state securities laws cannot be
obtained, the Company may purchase the Securities of such Holder or Holders for
cash.
(g) Officers' Certificate. At least five Business Days
before the Company Notice Date, the Company shall deliver an Officers'
Certificate to the Trustee (provided, that at the Company's option, the matters
to be addressed in such Officers' Certificate may be divided among two such
certificates) specifying:
(1) the manner of payment selected by the
Company;
(2) if the Company elects to pay the Purchase
Price or Fundamental Change Purchase Price, or a specified percentage
thereof, in Common Stock pursuant to Section 11.3(f), that the
conditions to such manner of payment set forth in Section 11.3(i)
herein have been or shall be complied with; and
(3) whether the Company desires the Trustee to
give the Company Notice required by Section 11.3(a) herein.
(h) Fractional Shares. The Company shall not issue a
fractional share of Common Stock in payment of the Purchase Price or Fundamental
Change Purchase Price. Instead the Company shall pay cash for the current market
value of the fractional share. The current market value of a fraction of a share
shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
purchased.
(i) Conditions to Exercise of Right to Issue Common
Stock. The Company's right to exercise its election to purchase the Securities
pursuant to Section 11.2 or Section 11.1 herein through the issuance of shares
of Common Stock shall be conditioned upon:
(1) the Company having given timely written
notice in accordance with Section 11.3(a) of its election to purchase
all or a specified percentage of the Securities with Common Stock as
provided herein;
(2) the Common Stock being traded on a national
securities exchange or quoted on the Nasdaq National Market at such
time;
(3) that the information necessary to calculate
the market price of the Company's Common Stock is published in a daily
newspaper of national circulation;
(4) (i) (A) the registration of the shares of
Common Stock to be issued in respect of the payment of the specified
percentage of the Purchase Price or
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Fundamental Change Purchase Price under the Securities Act or (B) the
issuance of the shares of Common Stock in a transaction which is exempt
from the registration requirements of the Securities Act and which will
not result in such shares of Common Stock being deemed "restricted
securities" as defined in Rule 144 under the Securities Act or
otherwise and (ii) the shares of Common Stock being registered under
the Exchange Act;
(5) any necessary qualification or registration
under applicable state securities laws or the availability of an
exemption from such qualification and registration; and
(6) the receipt by the Trustee of an Officers'
Certificate (provided, that at the Company's option, the matters to be
addressed in such Officers' Certificate may be divided among two such
certificates) and an Opinion of Counsel each stating that (i) the terms
of the issuance of the Common Stock are in conformity with this
Indenture and (ii) the shares of Common Stock to be issued by the
Company in payment of the specified percentage of the Purchase Price or
Fundamental Change Purchase Price in respect of Securities have been
duly authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the specified percentage of the Purchase
Price or Fundamental Change Purchase Price in respect of Securities,
shall be validly issued, fully paid and nonassessable, and, to the best
of such counsel's knowledge, free from preemptive rights, and in the
case of such Officers' Certificate, stating that conditions (1), (2),
(3), (4) and (5) above have been satisfied and, in the case of such
Opinion of Counsel, stating that conditions (4) and (5) above have been
satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 principal amount of
Securities and the Sale Price of a share of Common Stock on each Trading Day
during the period during which the Market Price is calculated and ending on the
applicable Purchase Date or Fundamental Change Purchase Date. The Company may
elect to pay the Purchase Price or Fundamental Change Purchase Price (or any
portion thereof) in Common Stock only if the information necessary to calculate
the Market Price is reported in a daily newspaper of national circulation. If
any of the conditions set forth in this Section 11.3(i) are not satisfied with
respect to a Holder or Holders prior to or on the Purchase Date or Fundamental
Change Purchase Date, and the Company elected to purchase the Securities to be
purchased as of such Purchase Date or Fundamental Change Purchase Date pursuant
to Section 11.2 or Section 11.1 herein through the issuance of shares of Common
Stock, the Company shall pay the entire Purchase Price or Fundamental Change
Purchase Price in respect of such Securities of such Holder or Holders in cash.
The Company shall not change the form or components or percentages of components
of consideration to be paid for the Securities once it has given the Company
Notice, except as described in the previous sentence.
(j) Public Notice. Upon determination of the actual
number of shares of Common Stock which the Holder of each $1,000 principal
amount of the Securities shall receive, the Company shall publish such
determination in a newspaper of general circulation in The City of New York or
on the Company's then existing website or through such other public medium as
the Company may use at that time.
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(k) Company's Determination Final and Binding. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Securities for repurchase shall be determined by the Company
in good faith, whose determination shall be final and binding absent manifest
error.
Article XII
Conversion
Section 12.1. Conversion of Securities.
(a) Right to Convert. A Holder may convert its Securities
for Common Stock at any time during which the conditions stated in paragraph 8
of the Securities are met. The number of shares of Common Stock issuable upon
conversion of a Security shall equal the principal amount divided by the
Conversion Price, subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of
Securities if the portion is $1,000 or a multiple of $1,000.
(b) Conversion Procedures. To convert Securities, a
Holder must satisfy the requirements in paragraph 8 of the Securities. The date
on which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). As soon as practicable, but in no event later than the fifth
Business Day following the Conversion Date, the Company shall deliver to the
Holder, through the Conversion Agent, a certificate for the number of full
shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional share determined pursuant to Section 12.1(c). The Person in whose
name the certificate is registered shall be treated as a stockholder of record
on and after the Conversion Date; provided, however, that no surrender of
Securities on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; such conversion shall be at the Conversion Price in effect on the date
that such Securities shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed. Upon completion of conversion
of Securities, such Person shall no longer be a Holder of such Securities.
No payment or adjustment shall be made for dividends on or
other distributions with respect to any Common Stock except as provided in
Section 12.2 or as otherwise provided in this Indenture.
On conversion of Securities, that portion of accrued interest
including accrued Contingent Interest with respect to the converted Securities
shall not be canceled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Securities being converted pursuant to the provisions hereof,
and the Fair
68
Market Value (as determined by the Board of Directors, whose determination shall
be conclusive evidence of such Fair Market Value and which shall be evidenced by
an Officers' Certificate delivered to the Trustee) of such shares of Common
Stock (together with any such cash payment in lieu of fractional shares) shall
be treated as issued, to the extent thereof, first in exchange for interest
accrued and unpaid through the Conversion Date and any Contingent Interest, and
the balance, if any, of such Fair Market Value (determined as aforesaid) of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the principal amount of the Securities being converted pursuant to the
provisions hereof. Notwithstanding the foregoing, a Holder shall be entitled to
receive accrued and unpaid interest, including any Contingent Interest and any
Additional Amounts in respect of a Security if the Company calls such Security
for redemption and such Holder converts its Security prior to the Redemption
Date.
If a Holder converts more than one Security at the same time,
the number of shares of Common Stock issuable upon the conversion shall be based
on the total principal amount of the Securities converted.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee or the Authenticating Agent shall
authenticate and deliver to the Holder, a new Security in an authorized
denomination equal in principal amount to the unconverted portion of the
Security surrendered.
If the last day on which Securities may be converted is a
legal holiday in a place where a Conversion Agent is located, the Securities may
be surrendered to that Conversion Agent on the next succeeding day that it is
not a legal holiday.
(c) Cash Payments in Lieu of Fractional Shares. The
Company shall not issue a fractional share of Common Stock upon conversion of
Securities. Instead the Company shall deliver cash for the current market value
of the fractional share. The current market value of a fractional share shall be
determined to the nearest 1/10,000th of a share by multiplying the Sale Price of
a full share of Common Stock on the Trading Day immediately preceding the
Conversion Date by the fractional amount and rounding the product to the nearest
whole cent.
(d) Taxes on Conversion. If a Holder converts Securities,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which shall be due because the shares
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude any withholding of tax required by law.
(e) Covenants of the Company. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Securities.
69
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company shall endeavor promptly to comply with all federal
and state securities laws regulating the order and delivery of shares of Common
Stock upon the conversion of Securities, if any, and shall cause to have listed
or quoted all such shares of Common Stock on each U.S. national securities
exchange or over-the-counter or other domestic market on which the Common Stock
is then listed or quoted.
Section 12.2 . Adjustments to Conversion Price. The Conversion
Price shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its
Common Stock in shares of Common Stock, (ii) make a distribution on its Common
Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock
into a greater number of shares, or (iv) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination. The Company
will not pay any dividend on or make any distribution on shares of its Common
Stock held in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to
all or substantially all holders of its Common Stock entitling them (for a
period commencing no earlier than the record date described below and expiring
not more than 60 days after such record date) to subscribe for or purchase
shares of Common Stock (or securities convertible into Common Stock) at a price
per share (or having a conversion price per share) less than the Market Price
per share of Common Stock on the record date for the determination of
shareholders entitled to receive such rights or warrants, the Conversion Price
in effect immediately prior thereto shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered (or the aggregate conversion price of the
convertible securities so offered, which shall be determined by multiplying the
number of shares of Common Stock issuable upon conversion of such convertible
securities by the conversion price per share of Common Stock pursuant to the
terms of such convertible securities) would purchase at the Market Price per
share of Common Stock on such record date and of which the denominator shall be
the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered (or into which the
convertible securities so offered are convertible). Such adjustment shall be
made successively whenever any such rights or warrants are issued, and shall
become effective immediately after such record date. If at the end of the period
during which such rights or warrants are exercisable not all rights or warrants
shall have been exercised, the adjusted
70
Conversion Price shall be immediately readjusted to what it would have been
based upon the number of additional shares of Common Stock actually issued (or
the number of shares of Common Stock issuable upon conversion of convertible
securities actually issued).
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock (i) any shares of Capital Stock
(other than dividends or distributions of Common Stock on Common Stock to which
Section 12.2(a) applies) of the Company, or (ii) evidences of indebtedness or
(iii) other assets (including securities of any person other than the Company,
but excluding (A) all-cash distributions to which Section 12.2(d)) applies, (B)
any rights or warrants referred to in Section 12.2(b) or (C) any dividends or
distributions exclusively in cash in an aggregate amount that, together with all
other all-cash distributions to all or substantially all holders of the
Company's Common Stock made within the preceding 12 months in respect of which
no Conversion Price adjustment pursuant to this Section 12.2 has been made, does
not exceed an amount equal to 10% of the Company's market capitalization on the
Business Day immediately preceding the day on which the Company declares such
distribution), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the current
Conversion Price by a fraction of which the numerator shall be the current
market price per share (as defined in Section 12.2(e)) of the Common Stock on
the record date mentioned below less the Fair Market Value on such record date
(as determined by the Board of Directors, whose determination shall be
conclusive evidence of such Fair Market Value and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) of the portion of the Capital
Stock, evidences of indebtedness or other non-cash assets so distributed or of
such rights or warrants applicable to one share of Common Stock (determined on
the basis of the number of shares of Common Stock outstanding on the record
date) and of which the denominator shall be the current market price per share
(as defined in Section 12.2(e)) of the Common Stock on such record date. Such
adjustment shall be made successively whenever any such distribution is made and
shall become effective after the record date for the determination of
shareholders entitled to receive such distribution.
If, subject to customary exceptions, upon conversion of the
Securities the Holders will receive, in addition to the Common Stock issuable
upon such conversion, the rights issued under a shareholder rights plan
(notwithstanding the occurrence of an event causing such rights to separate from
the Common Stock at or prior to the time of conversion), any distribution of
rights or warrants pursuant to such a stockholder rights plan shall not
constitute a distribution of rights or warrants for the purposes of this Section
12.2(c).
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 12.2(c) (and no adjustment to the
Conversion Price under this Section 12.2(c) will be required) until the
occurrence of the earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant shall
become exercisable to purchase different securities, evidences of indebtedness
or other assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
71
purchase price, then the occurrence of each such event shall be deemed to be the
date of issuance and record date with respect to a new right or warrant (and a
termination or expiration of the existing right or warrant without exercise by
the holder thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto, that resulted in
an adjustment to the Conversion Price under this Section 12.2(c), (1) in the
case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Price shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of
such rights or warrants all of which shall have expired or been terminated
without exercise, the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
(d) In case the Company shall, by dividend or otherwise,
at any time distribute (a "Triggering Distribution") to all or substantially all
holders of its Common Stock all-cash distributions in an aggregate amount that,
together with the aggregate amount of (A) any cash and the Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee) of any other consideration payable in respect of any
tender offer by the Company or a Subsidiary of the Company for Common Stock
consummated within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment pursuant to
this Section 12.2 has been made and (B) all other cash distributions to all or
substantially all holders of its Common Stock made within the 12 months
preceding the date of payment of the Triggering Distribution and in respect of
which no Conversion Price adjustment pursuant to this Section 12.2 has been
made, exceeds an amount equal to 10% of the product of the current market price
per share of Common Stock (as determined in accordance with subsection (e) of
this Section 12.2) on the Business Day (the "Determination Date") immediately
preceding the day on which such Triggering Distribution is declared by the
Company multiplied by the number of shares of Common Stock outstanding on the
Determination Date (excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Determination Date by a fraction of which the numerator shall be the Market
Price per share of the Common Stock on the Determination Date less the sum of
the aggregate amount of cash and the aggregate Fair Market Value (determined as
aforesaid) of any such other consideration so distributed, paid or payable
within such 12 months (including, without limitation, the Triggering
Distribution) applicable to one share of Common Stock (determined on the basis
of the number of shares of Common Stock outstanding on the Determination Date),
and of which the denominator shall be such Market Price per share of the Common
Stock on the Determination Date, such reduction to become effective immediately
prior to the opening of business on the day following the date on which the
Triggering Distribution is paid; provided that, in the event the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than such Market Price per share of the Common Stock, in lieu of the
foregoing, an adequate adjustment provision shall be made so that each holder of
Securities shall have the right to receive upon conversion the amount of
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cash such holder would have received had such holder converted each Security
immediately prior to such distribution.
(e) In case any tender offer made by the Company or any
of its Subsidiaries for Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount of
cash consideration and the aggregate Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive evidence thereof and
which shall be evidenced by an Officers' Certificate delivered to the Trustee
thereof ) of any other consideration) that, together with the aggregate amount
of (A) any cash and the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration payable in respect of any other tender offers by the Company
or any Subsidiary of the Company for Common Stock consummated within the 12
months preceding the date of the Expiration Date (as defined below) and in
respect of which no Conversion Price adjustment pursuant to this Section 12.2
has been made and (B) all cash distributions to all or substantially all holders
of its Common Stock made within the 12 months preceding the Expiration Date and
in respect of which no Conversion Price adjustment pursuant to this Section 12.2
has been made, exceeds an amount equal to 10% of the product of the Market Price
per share of Common Stock as of the last date (the "Expiration Date") tenders
could have been made pursuant to such tender offer (as it may be amended) (the
last time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the number of
shares of Common Stock outstanding (including tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration Time, then,
immediately prior to the opening of business on the day after the Expiration
Date, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to close of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock outstanding
(including tendered shares but excluding any shares held in the treasury of the
Company) at the Expiration Time multiplied by the Market Price per share of the
Common Stock on the Trading Day next succeeding the Expiration Date, and of
which the denominator shall be the sum of (x) the aggregate consideration
(determined as aforesaid) payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Time and the Market Price per share of Common Stock
on the Trading Day next succeeding the Expiration Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of shares
actually purchased. If the application of this Section 12.2(e) to any tender
offer would result in a decrease in the Conversion Price, no adjustment shall be
made for such tender offer under this Section 12.2(e).
73
(f) For purposes of this Section 12.2, the term "tender
offer" shall mean and include both tender offers and exchange offers, all
references to "purchases" of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.
(g) The Company may make such reductions to the
Conversion Price, as the Board of Directors considers to be advisable to avoid
or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company may
from time to time reduce the Conversion Price by any amount for any period of
time if the period is at least 20 days, the reduction is irrevocable during the
period and the board of directors of the Company shall have made a determination
that such reduction would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the holders of
record of the Securities a notice of reduction at least 15 days prior to the
date the reduced Conversion Price takes effect, and such notice shall state the
reduced Conversion Price and the period during which it will be in effect.
(h) For purposes of this Section 12.2, the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
Section 12.3. Miscellaneous Provisions Relating to Conversion.
(a) Calculation Methodology. No adjustment in the
Conversion Price need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Price then in effect provided that any
adjustment that would otherwise be required to be made shall be carried forward
and taken into account in any subsequent adjustment. Except as stated in Section
12.2, the Conversion Price will not be adjusted for the issuance of Common Stock
or any securities convertible into or exchangeable for Common Stock or carrying
the right to purchase any of the foregoing. Any adjustments that are made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under Section 12.1, Section 12.2 and Section 12.3 shall be made to
the nearest cent or to the nearest 1/10,000th of a share, as the case may be.
(b) When No Adjustment Required. No adjustment to the
Conversion Price need be made:
(1) upon the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on
74
securities of the Company and the investment of additional optional
amounts in shares of Common Stock under any plan;
(2) upon the issuance of any shares of Common
Stock or options or rights to purchase those shares pursuant to any
present or future employee, director or consultant benefit plan or
program of or assumed by the Company or any of its Subsidiaries;
(3) upon the issuance of any shares of Common
Stock pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security outstanding as of the date the
Securities were first issued;
(4) for a change in the par value or no par
value of the Common Stock; or
(5) for accrued and unpaid interest (including
any Contingent Interest or Additional Amounts).
To the extent the Securities become convertible into cash,
assets, property or securities (other than capital stock of the Company), no
adjustment shall be made thereafter as to the cash, assets, property or such
securities. Interest shall not accrue on such cash.
(c) Notice of Adjustment. Whenever the Conversion Price
is adjusted, the Company shall promptly mail to Holders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice. The certificate shall, absent manifest error, be conclusive
evidence that the adjustment is correct. Neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to any such
certificate except to exhibit the same to any Holder desiring inspection
thereof.
(d) Notice to Holders Prior to Certain Actions. In case:
(1) the Company shall declare a dividend (or any
other distribution) on its Common Stock that would require an
adjustment in the Conversion Price pursuant to Section 12.2;
(2) the Company shall authorize the granting to
all or substantially all the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any
other rights or warrants;
(3) of any reclassification or reorganization of
the Common Stock of the Company (other than a subdivision or
combination of its outstanding Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and
for which approval of any shareholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of
the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, the Company shall cause to be
filed with the Trustee and to be mailed to each Holder at its address
appearing on the Securities Register, as promptly as
75
possible but in any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution or rights
or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, or rights or warrants are to be determined or (y) the
date on which such reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up. Failure
to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
reorganization, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.
(e) Effect of Reclassification, Consolidation, Merger,
Binding Share Exchange or Sale. If any of the following events occur, namely (a)
any reclassification or change of outstanding shares of Common Stock (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination); (b) any
consolidation, merger, combination or binding share exchange of the Company with
another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock; or (c) any sale or
conveyance of the properties and assets of the Company as, or substantially as,
an entirety to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, other securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture, providing that each
Security shall be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, binding share
exchange, sale or conveyance by a holder of a number of shares of Common Stock
issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, binding share
exchange, sale or conveyance. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 12.3(e).
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at its address appearing on
the Securities Register, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
binding share exchanges, sales and conveyances.
If this Section 12.3(e) applies to any event or occurrence,
Section 12.2 shall not apply.
76
(f) Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder to either calculate the Conversion Price or determine whether any
facts exist which may require any adjustment of the Conversion Price, or with
respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same and shall be protected in
relying upon an Officers' Certificate with respect to the same. The Trustee and
any other Conversion Agent shall not be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Securities and the Trustee and any other Conversion Agent make
no representations with respect thereto. Subject to the provisions of Article
VII of this Indenture, neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Securities for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Section. Without limiting the generality of the foregoing,
neither the Trustee nor any Conversion Agent shall be under any responsibility
to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 12.3(e) relating either to the kind
or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 12.3(e) or to any adjustment to be made with respect
thereto, but, subject to the provisions of Article VII of this Indenture, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
(g) Successive Adjustments. After an adjustment to the
Conversion Price under Section 12.2, any subsequent event requiring an
adjustment under Section 12.2 shall cause an adjustment to the Conversion Price
as so adjusted.
(h) General Considerations. Whenever successive
adjustments to the Conversion Price are called for pursuant to Section 12.2 or
Section 12.3, such adjustments shall be made to the Market Price as may be
necessary or appropriate to effectuate the intent of Section 12.2 and Section
12.3 and to avoid unjust or inequitable results as determined in good faith by
the Board of Directors.
Article XIII
Miscellaneous
Section 13.1. 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. Each Subsidiary Guarantor in addition to performing its
obligations under its Subsidiary Guarantee shall perform such other obligations
as may be imposed upon it with respect to this Indenture under the TIA.
77
Section 13.2. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Manor Care, Inc.
000 Xxxxx Xxxxxx Xxxxxx, 00 (xx) xxxxx
Xxxxxx, Xxxx 000000-0000
Attention: Xx. Xxxx Xxxxxx, Chief Executive Officer
With a copy to:
Xxxxxx & Xxxxxxx Illinois LLC
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
if to the Trustee:
National City Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Department
Locator 01-3116
For purposes of Section 2.5 (with respect to presentation of
Securities for payment or for registrations of transfer or exchange) if to the
Trustee: National City Bank, c/o The Depository Trust Company, Transfer Agent
Drop Service, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a registered
Securityholder shall be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.
Section 13.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
78
Section 13.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the
opinion of such individual, such covenant or condition has been
complied with.
In giving such Opinion of Counsel, counsel may rely as to
factual matters on an Officers' Certificate or on certificates of public
officials.
Section 13.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
Section 13.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
79
Section 13.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City or Cleveland, Ohio. If a payment date is
a Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest, Contingent Interest or Additional Amounts shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 13.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Section 13.10. No Recourse Against Others. An incorporator,
director, officer, employee, Affiliate or stockholder of the Company or any
Subsidiary Guarantor, solely by reason of this status, shall not have any
liability for any obligations of the Company or any Subsidiary Guarantor under
the Securities, this Indenture or the Subsidiary Guarantees or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
Section 13.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 13.12. Multiple 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. One signed copy is enough to
prove this Indenture.
Section 13.13. Qualification of Indenture. The Company shall
qualify this Indenture under the TIA in accordance with the terms and conditions
of the Registration Rights Agreement and shall pay all reasonable costs and
expenses (including 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 Securities and
printing this Indenture and the Securities. 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.
Section 13.14. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
80
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
MANOR CARE, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
81
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
XXXXX NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
XXXXXXX XXXXX, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
XXXXXXX MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
82
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
83
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
XXXXXXX XXXXXX, RPT - XXXX XXXXXXXX,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
LEADER NURSING AND REHABILITATION
CENTER OF BETHEL PARK, INC.
LEADER NURSING AND REHABILITATION
CENTER OF GLOUCESTER, INC.
LEADER NURSING AND REHABILITATION
CENTER OF XXXXX TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION
CENTER OF VIRGINIA INC.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, INC
84
MANOR CARE OF ARIZONA, INC.
MANOR CARE OF ARLINGTON, INC.
MANOR CARE OF BOCA RATON, INC.
MANOR CARE OF BOYNTON BEACH, INC.
MANOR CARE OF CANTON, INC.
MANOR CARE OF CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, INC.
MANOR CARE OF HINSDALE, INC.
MANOR CARE OF KANSAS, INC.
MANOR CARE OF KINGSTON COURT, INC.
MANOR CARE OF LARGO, INC.
MANOR CARE OF LEXINGTON, INC.
MANOR CARE OF MEADOW PARK, INC.
MANOR CARE OF MIAMISBURG, INC
MANOR CARE OF NORTH XXXXXXXX, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
85
MANOR CARE OF ROLLING XXXXXXX, INC.
MANOR CARE OF ROSSVILLE, INC.
MANOR CARE OF SARASOTA, INC.
MANOR CARE OF XXXXXXXXXX, INC.
MANOR CARE OF WILMINGTON, INC.
MANOR CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
86
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
XXXXXXXX & XXXXXX, INC.
XXXXXXXX HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
XXXXXX PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
87
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel and
Secretary of each of the above-
referenced corporations
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
88
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation, its
General Partner
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
89
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc., its
sole member
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
90
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services, Inc., its
sole member
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
91
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation, its
General Partner
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
00
XXXXXXXXX XXXXX, LLC
XXXXXXXXXX XXXXX, LLC
XXXXXXX FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
XXXXXX XXXXX LLC
HANOVER ARDEN, LLC
XXXXXXXXX XXXXX, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN XXXXXXX XXXXX, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
93
XXXXXXXX VILLE XXXXX, LLC
By: Manor Care of America, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
94
BATH ARDEN, LLC
XXXXXX XXXXXX OF XXXXXXXX, LLC
XXXXXX XXXXXX OF AUSTIN, LLC
XXXXXX XXXXXX OF KENWOOD, LLC
XXXXXX XXXXXX OF SAN ANTONIO, LLC
XXXXXX XXXXXX OF SUSQUEHANNA, LLC
XXXXXX XXXXXX OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
00
XXX XXXXXXXXX XXXXXXXX, L.P.
By: Mesquite Hospital, LLC, its
General Partner
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel
and Secretary
Address: 000 X. Xxxxxx Xx.
Xxxxxx, Xxxx 00000
Fax No.: 000-000-0000
Telephone: 000-000-0000
96
NATIONAL CITY BANK, as Trustee
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Applicable Restricted Securities Legend]
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT. THE COMPANY AGREES, AND BY ACCEPTANCE OF BENEFICIAL OWNERSHIP
INTEREST IN THE SECURITIES EACH BENEFICIAL HOLDER OF SECURITIES WILL BE DEEMED
TO HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES (1) TO TREAT THE
SECURITIES AS INDEBTEDNESS THAT IS SUBJECT TO TREAS. REG. SEC. 1.1275-4 (THE
"CONTINGENT PAYMENT REGULATIONS") AND, FOR PURPOSES OF THE CONTINGENT PAYMENT
REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF ANY STOCK BENEFICIALLY RECEIVED
BY A BENEFICIAL HOLDER UPON ANY CONVERSION OF THE SECURITIES AS A CONTINGENT
PAYMENT AND (2) TO BE BOUND BY THE COMPANY'S DETERMINATION OF THE "COMPARABLE
YIELD" AND "PROJECTED PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT
PAYMENT REGULATIONS, WITH RESPECT TO THE SECURITIES. A HOLDER OF SECURITIES MAY
OBTAIN THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD
TO MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE BY SUBMITTING A
WRITTEN REQUEST FOR SUCH INFORMATION TO THE COMPANY AT THE FOLLOWING ADDRESS:
MANOR CARE, INC., 000 XXXXX XXXXXX XXXXXX, 00XX XXXXX, XXXXXX, XXXX 00000-0000,
ATTENTION: XXXXXXXX X. XXXXXX, CHIEF FINANCIAL OFFICER.
[Global Security Legend, if applicable]
No. [___] Principal Amount $[_____________], as
revised by the Schedule of Increases and Decreases in Global Security attached
hereto
CUSIP NO. 000000XX0
ISIN: US564055AD38
2.125% Convertible Senior Notes due 2023
Manor Care, Inc., a Delaware corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on April 15, 2023.
Interest Payment Dates: April 15 and October 15
Regular Record Dates: April 1 and October 1
A-2
Additional provisions of this Security are set forth on the
other side of this Security.
MANOR CARE, INC.
By: _____________________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By ________________________
Authorized Signatory Date: [__________]
A-3
[FORM OF REVERSE SIDE OF SECURITY]
2.125% Convertible Senior Notes due 2023
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate of 2.125% per annum.
The Company will pay interest semiannually on April 15 and
October 15 of each year commencing October 15, 2003. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from April 15, 2003. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
Interest on Securities converted after the close of business
on a regular record date, but prior to the opening of business on the
corresponding interest payment date, will be paid to the Holder on the regular
record date but, upon conversion, the Holder must pay the Company the interest
which has accrued and will be paid to the Holder on such interest payment date.
No such payment need be made with respect to Securities in respect of which a
redemption date has been declared that falls within such period or on such
interest payment date. A Holder shall be entitled to receive accrued and unpaid
interest, including any Contingent Interest and any Additional Amounts in
respect of a Security if the Company calls such Security for redemption and such
Holder converts such Security on or prior to the Redemption Date.
If the principal hereof or any portion of such principal is
not paid when due (whether upon acceleration, upon the date set for payment of
the redemption price pursuant to paragraph 6 hereof, upon the date set for
payment of a Purchase Price or Fundamental Change Purchase Price pursuant to
paragraph 7 hereof or upon the Stated Maturity of this Security) or if interest
(including Contingent Interest, if any) due hereon or any portion of such
interest is not paid when due in accordance with this paragraph or paragraph 5
hereof, then in each such case the overdue amount shall bear interest at the
rate of 2.125% per annum, compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest shall
accrue from the date such overdue amount was due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest (including any Contingent Interest) or any
Additional Amounts, if any, on any Security is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such amount. The Company will pay interest (including any Contingent
Interest) (except Defaulted Interest) to the Persons who are registered Holders
of Securities at the close of business on the April 1 or October 1 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to
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collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of Securities represented by a
Global Security (including principal and interest (including any Contingent
Interest) and any Additional Amounts, if any, will be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of Securities represented
by a Definitive Security (including principal and interest, Contingent Interest,
if any, and Additional Amounts, if any) by mailing a check to the registered
address of the Holder thereof; provided, however, that payments on securities
may also be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount of Securities by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent, Registrar, Conversion Agent, Authenticating Agent and Bid
Agent
Initially, National City Bank (the "Trustee"), will act as
Trustee, Paying Agent, Registrar, Conversion Agent, Authenticating Agent and Bid
Agent. The Company may appoint and change any Paying Agent, Registrar or
co-registrar, Conversion Agent, Authenticating Agent or Bid Agent without notice
to any Securityholder. The Company or any of its Subsidiaries may act as Paying
Agent, Registrar or co-registrar, Conversion Agent or Authenticating Agent,
subject to the terms of the Indenture. Neither the Company nor any of its
Affiliates may act as Bid Agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of April 15, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company limited to $90.0 million aggregate principal amount (up to $100.0
million aggregate principal amount if the Initial Purchasers' option to purchase
additional Securities is exercised in full), except for Securities authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of other Securities pursuant to Section 2.8, 2.9, 2.10, 2.11, 2.13, 9.5, 5.8,
11.3 or 12.1 of the Indenture. The Securities will be treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations on,
among other things, consolidation, mergers and sale of assets of the Company.
To guarantee the due and punctual payment of the principal and
interest (including any Contingent Interest) and any Additional Amounts, if any,
on the Securities and all
A-5
other amounts payable by the Company under the Indenture and the Securities when
and as the same shall be due and payable, whether at maturity, by acceleration
or otherwise, according to the terms of the Securities and the Indenture, the
Subsidiary Guarantors have unconditionally guaranteed (and future guarantors,
together with the Subsidiary Guarantors, will unconditionally Guarantee),
jointly and severally, such obligations on a senior basis pursuant to the terms
of the Indenture.
5. Contingent Interest
The Company shall pay Contingent Interest in cash to the
Holders in respect of any six-month period from April 15 to October 14 and from
October 15 to April 14, commencing with the six-month period beginning April 15,
2010, if the average Securities Price for the Applicable Five Trading Day Period
with respect to such interest period equals 120% or more of $1,000 principal
amount of Securities. The amount of Contingent Interest payable per $1,000
principal amount of Securities in respect of any interest period shall equal
0.25% of the average Securities Price for the Applicable Five Day Trading Period
with respect to such interest period. Contingent Interest, if any, will accrue
from April 15 or October 15, as applicable, and will be payable on the next
succeeding October 15 or April 15 interest payment date, as the case may be.
Contingent Interest will be paid to the person in whose name a Security is
registered at the close of business on April 1 or October 1, as the case may be,
immediately preceding the relevant interest payment date on which Contingent
Interest is payable. All payments of Contingent Interest shall be made in cash.
Upon determination that Holders will be entitled to receive
Contingent Interest during an interest period, on or prior to the first day of
such interest period, the Company shall issue a press release through Dow Xxxxx
& Company, Inc. or Bloomberg Business News containing such information with
respect to the payment of Contingent Interest or publish such information on its
web site or through such other public medium as the Company may use at that
time.
6. Redemption
No sinking fund is provided for the Securities. The Securities
will be redeemable, at the option of the Company, in whole at any time or in
part from time to time, at any time on or after April 15, 2010, on at least 30
days but not more than 60 days' prior notice mailed to the registered address of
each Holder of Securities to be so redeemed, at a redemption price equal to 100%
of their principal amount plus accrued but unpaid interest (including any
Contingent Interest) and Additional Amounts, if any, to but excluding the
Redemption Date.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee by lot, or on a pro rata
basis, or by another method as the Trustee shall deem to be fair and
appropriate, although no Securities of $1,000 in original principal amount or
less will be redeemed in part. If any Security is to be redeemed in part only,
the notice of redemption relating to such Security shall state the portion of
the principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest (including any Contingent Interest) and
A-6
Additional Amounts, if any, will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
7. Purchase By the Company at the Option of the Holder; Purchase at the
Option of the Holder Upon a Fundamental Change
(a) Subject to the terms and conditions of the Indenture,
a Holder shall have the option to require the Company to purchase the Securities
held by such Holder on April 15, 2005, April 15, 2008, April 15, 2010, April 15,
2013 and April 15, 2018 (each, a "Purchase Date") at a purchase price (the
"Purchase Price") equal to 100% of the principal amount of the Securities to be
purchased plus any accrued and unpaid interest (including any Contingent
Interest) and Additional Amounts, if any, to such Purchase Date, upon delivery
of a Purchase Notice containing the information set forth in the Indenture, from
the opening of business on the date that is 20 Business Days prior to such
Purchase Date until the close of business on the fifth Business Day prior to
such Purchase Date and upon delivery of the Securities to the Paying Agent by
the Holder as set forth in the Indenture. The Company will pay the Purchase
Price in cash for any Securities to be purchased as of the Purchase Date
occurring on April 15, 2005. With respect to the April 15, 2008, April 15, 2010,
April 15, 2013 and April 15, 2018 Purchase Dates, the Purchase Price may be paid
by the Company, at its option, in cash or by the issuance and delivery of shares
of Common Stock of the Company, or in any combination thereof as set forth in
the Indenture, provided that the Company will pay accrued and unpaid interest
(including Contingent Interest) and Additional Amounts, if any, in cash.
Securities in denominations larger than $1,000 principal
amount may be purchased in part, but only in integral multiples of $1,000
principal amount.
(b) If a Fundamental Change shall occur at any time, each
Holder shall have the right, at such Holder's option and subject to the terms
and conditions of the Indenture, to require the Company to purchase any or all
of such Holder's Securities or any portion of the principal amount thereof that
is equal to $1,000 or an integral multiple of $1,000 on the day that is 35
Business Days after the date of the Company Notice of the occurrence of the
Fundamental Change (subject to extension to comply with applicable law) for a
Fundamental Change Purchase Price equal to the principal amount of Securities
purchased plus accrued and unpaid interest, including any Contingent Interest,
and Additional Amounts, if any, to but excluding the Fundamental Change Purchase
Date, which Fundamental Change Purchase Price shall be paid by the Company, at
its option, in cash, by the issuance and delivery of shares of Common Stock of
the Company or a combination thereof, as set forth in the Indenture, provided
that the Company will pay accrued and unpaid interest (including any Contingent
Interest) and Additional Amounts, if any, in cash.
(c) Holders have the right to withdraw any Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, by delivery to
the Paying Agent of a written notice of withdrawal in accordance with the
provisions of the Indenture.
(d) If cash (and/or Common Stock if permitted under the
Indenture) sufficient to pay a Fundamental Change Purchase Price or Purchase
Price, as the case may be, of all
A-7
Securities or portions thereof to be purchased as of the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, is deposited with the
Paying Agent on the Business Day following the Purchase Date or the Fundamental
Change Purchase Date, as the case may be, interest (including any Contingent
Interest) and Additional Amounts, if any, shall cease to accrue on such
Securities (or portions thereof) on and after such date, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Fundamental Change Purchase Price, as the case may be, upon surrender
of such Security).
8. Conversion
Subject to the procedures set forth in the Indenture, a Holder
may convert Securities into Common Stock of the Company at any time on or before
the close of business on April 15, 2023 if at least one of the following
conditions is satisfied on the Conversion Date:
(a) the average of the Sale Prices for the Common Stock
for the 20 Trading Days immediately prior to the Conversion Date is greater than
or equal 120% of the Conversion Price per share of Common Stock on such
Conversion Date;
(b) the credit ratings assigned to the Securities by of
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services are lower
than Ba3 and BB+, respectively, or the Securities are no longer rated by at
least one of these rating agencies;
(c) the Securities have been called for redemption by the
Company, in which case a Holder may convert Securities into Common Stock at any
time prior to the close of business on the Business Day prior to the Redemption
Date;
(d) the Company elects to (i) distribute to all holders
of Common Stock assets, debt securities or rights to purchase securities of the
Company, which distribution has a per share value as determined by the Company's
Board of Directors exceeding 15% of the Sale Price of the Common Stock on the
day preceding the declaration date for such distribution or (ii) distribute to
all holders of Common Stock rights entitling them to purchase, for a period
expiring within 60 days after the date of such distribution, Common Stock at
less than the Sale Price at the time of such distribution. In the case of the
foregoing clauses (i) and (ii), the Company must notify the Holders at least 20
Business Days prior to the ex-dividend date for such distribution. Once the
Company has given such notice, Holders may surrender their Securities for
conversion at any time thereafter until the earlier of the close of business on
the Business Day prior to the ex-dividend date or the Company's announcement
that such distribution will not take place. The ex-dividend date is the first
date upon which a sale of the Common Stock does not automatically transfer the
right to receive the relevant dividend from the seller of the Common Stock to
its buyer; and
(e) the Company becomes a party to a consolidation,
merger or binding share exchange pursuant to which the Common Stock would be
converted into cash or property (other than securities), in which case a Holder
may surrender Securities for conversion at any time from and after the date
which is 15 days prior to the anticipated effective date for the transaction
until 15 days after the actual effective date of such transaction;
A-8
Securities in respect of which a Holder has delivered a notice
of exercise of the option to require the Company to purchase such Securities
pursuant to paragraph 7 hereof and Section 11.1 or Section 11.2 of the Indenture
may be converted only if the notice of exercise is withdrawn in accordance with
the terms of the Indenture.
The initial Conversion Price is $31.12, subject to adjustment
in certain events described in the Indenture. The Company shall deliver cash or
a check in lieu of any fractional share of Common Stock.
Holders of Securities at the close of business on a Regular
Record Date will receive payment of interest (including any Contingent Interest)
payable on the corresponding interest payment date notwithstanding the
conversion of such Securities at any time after the close of business on such
Regular Record Date. Securities surrendered for conversion during the period
from the close of business on any Regular Record Date to the opening of business
on the corresponding interest payment date (except for Securities in respect of
which a Redemption Date has been declared that falls within this period or on
such interest payment date) must be accompanied by payment of an amount equal to
the interest (including any Contingent Interest) that the Holder is to receive
on the Securities. If the Company is required to pay any Contingent Interest,
Securities surrendered for conversion during the period from the close of
business on the Regular Record Date for such Contingent Interest to the opening
of business on the interest payment date for such Contingent Interest (except
for Securities in respect of which a Redemption Date has been declared that
falls within this period or on such interest payment date for such Contingent
Interest) must be accompanied by payment of an amount equal to such Contingent
Interest that the Holder is to receive. Except where Securities surrendered for
conversion must be accompanied by payment as described above, no interest or
Contingent Interest on converted Securities will be payable by the Company on
any interest payment date subsequent to the date of conversion. Notwithstanding
the foregoing, a Holder shall be entitled to receive accrued and unpaid
interest, including any Contingent Interest and any Additional Amounts in
respect of a Security if the Company calls such Security for redemption and such
Holder converts its Security prior to the Redemption Date.
To convert the Securities a Holder must (1) complete and
manually sign the irrevocable conversion notice on the back of the Securities
(or complete and manually sign a facsimile of such notice) and deliver such
notice to the Conversion Agent at the office maintained by the Conversion Agent
for such purpose, (2) surrender the Securities to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar
tax, if required.
A Holder may convert a portion of the Securities only if the
principal amount of such portion is $1,000 or a multiple of $1,000. No payment
or adjustment shall be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of the Securities, that portion of accrued and
unpaid interest attributable to the period from the Issue Date to the Conversion
Date and accrued and unpaid Contingent Interest with respect to the converted
portion of the Securities shall not be canceled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with any cash payment in lieu of
fractional shares) in exchange for the portion of
A-9
the Securities being converted pursuant to the terms hereof; and the Fair Market
Value of such shares of Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent thereof,
first in exchange for interest accrued and unpaid through the Conversion Date
and accrued and unpaid Contingent Interest, and the balance, if any, of such
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive evidence of such Fair Market Value and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of such Common
Stock (and any such cash payment) shall be treated as issued in exchange for the
principal amount of the Securities being converted pursuant to the provisions
hereof. Notwithstanding the foregoing, a Holder shall be entitled to receive
accrued and unpaid interest, including any Contingent Interest and any
Additional Amounts in respect of a Security if the Company calls such Security
for redemption and such Holder converts such Security prior to the Redemption
Date
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest (including
any Contingent Interest) and Additional Amounts, if any, remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any
A-10
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article IV of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add
guarantees with respect to the Securities, or to secure the Securities, or to
add additional covenants of the Company or its Subsidiaries, or surrender rights
and powers conferred on the Company or its Subsidiaries, or to comply with any
request of the SEC in connection with qualifying the Indenture under the Act, or
to make any change that does not adversely affect the rights of any
Securityholder.
13. Defaults and Remedies
Under the Indenture, Events of Default include, but are not
limited to, (i) default for 30 days in payment of interest (including any
Contingent Interest) or Additional Amounts, if any, when due on the Securities;
(ii) default in payment of principal on the Securities at Stated Maturity, upon
required repurchase pursuant to paragraph 7 or upon optional redemption pursuant
to paragraph 6 of the Securities, upon declaration or otherwise; (iii) the
failure by the Company or any Subsidiary Guarantor to comply with its
obligations under Article IV or Section 10.2 of the Indenture; (iv) the failure
by the Company to comply for 60 days after written notice with its other
agreements contained in the Indenture or under the Securities (other than those
referred to in (i), (ii), or (iii) above); (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
outstanding, or by which there may be secured or evidenced any Debt for money
borrowed by the Company or any of its Subsidiaries (other than Non-Recourse Debt
of a Non-Recourse Subsidiary), whether such Debt now exists, or is created after
the date of the Indenture, which default (a) is caused by a failure to pay
principal of, or interest (including any Contingent Interest) and Additional
Amounts, if any, or on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vi) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (vii) entry in a court of competent jurisdiction of
a final judgment for the payment of $20.0 million or more rendered against the
Company or any Subsidiary, which judgment is not fully covered by insurance or
not discharged or stayed within 90 days after (A) the date on which the right to
appeal thereof has expired if no such appeal has commenced, or (B) the date on
which all rights to appeal have been extinguished (the "judgment default
provision"). However, a default under clause (iv) will not constitute an Event
of Default until the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Company of the default and the Company
does not cure such default within the time specified in clause (iv) hereof after
receipt of such notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities by notice to the Company to be due and payable immediately.
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Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest (including any Contingent Interest) and Additional
Amounts, if any) if it determines that withholding notice is in their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or
stockholder, of each of the Company, or any Subsidiary Guarantor, solely by
reason of this status, shall not have any liability for any obligations of the
Company or any Subsidiary Guarantor under the Securities, the Indenture or any
Subsidiary Guarantees or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
18. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
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19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
________________________________________________________________________________
Date:____________________ Your Signature: ____________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[ ] 1 acquired for the undersigned's own account, without
transfer; or
[ ] 2 transferred to the Company; or
[ ] 3 transferred pursuant to an effective registration
statement under the Securities Act of 1933, as
amended (the "Securities Act"); or
[ ] 4 transferred pursuant to and in compliance with Rule
144A under the Securities Act; or
[ ] 5 transferred pursuant to and in compliance with
Regulation S under the Securities Act; or
A-14
[ ] 6 transferred pursuant to another available exemption
from the registration requirements of the Securities
Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5) or (6) is
checked, the Trustee or the Company may require, prior to registering any such
transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, such as the exemption provided by Rule 144
under such Act.
____________________________
Signature
Signature Guarantee:
______________________________ ____________________________
(Signature must be guaranteed) Signature
________________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
_______________________________________
Dated:
A-15
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Principal Amount of Principal Amount of following such of Trustee or
Date this Global Security this Global Security decrease or increase Securities Custodian
---------------- ------------------------ ------------------------ ------------------------ ------------------------
A-16
FORM OF CONVERSION NOTICE
To: Manor Care, Inc.
The undersigned registered holder of this Security hereby exercises the
option to convert this Security, or portion hereof (which is $1,000 principal
amount or an integral multiple thereof) designated below, for shares of Common
Stock of Manor Care, Inc. in accordance with the terms of the Indenture referred
to in this Security, and directs that the shares, if any, issuable and
deliverable upon such conversion, together with any check for cash deliverable
upon such conversion, and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of this
Security not converted are to be issued in the name of a Person other than the
undersigned, the undersigned shall pay all transfer taxes payable with respect
thereto.
This notice shall be deemed to be an irrevocable exercise of the option
to convert this Security.
Dated: ________________________________________________
________________________________________________
Signature(s)
Signature(s) must be guaranteed by a commercial
bank or trust company or a member firm of a major
stock exchange if shares of Common Stock are to
be issued, or Securities to be delivered, other
than to or in the name of the registered holder.
________________________________________________
Signature Guarantee
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
____________________________________
(Name) Principal amount to be converted
(if less than all): $__________,000
____________________________________
(Xxxxxx Xxxxxxx)
____________________________________ _______________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
A-17
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: Manor Care, Inc.
The undersigned registered holder of this Security hereby acknowledges
receipt of a notice from Manor Care, Inc. (the "Company") as to the occurrence
of a Fundamental Change with respect to the Company and requests and instructs
the Company to repurchase this Security, or the portion hereof (which is $1,000
principal amount or a integral multiple thereof) designated below, in accordance
with the terms of the Indenture referred to in this Security and this Security
and directs that the check or Common Stock of the Company, as applicable, in
payment for this Security or the portion thereof and any Securities representing
any unrepurchased principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
any portion of this Security not repurchased is to be issued in the name of a
Person other than the undersigned, the undersigned shall pay all transfer taxes
payable with respect thereto.
Dated:
________________________________________________
________________________________________________
Signature(s)
Signature(s) must be guaranteed by a commercial
bank or trust company or a member firm of a major
stock exchange if shares of Common Stock are to
be issued, or Securities to be delivered, other
than to or in the name of the registered holder.
________________________________________________
Signature Guarantee
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
____________________________________
(Name) Principal amount to be purchased
(if less than all): $___________,000
____________________________________
(Xxxxxx Xxxxxxx)
____________________________________ _______________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
A-18
If the Company has elected to pay the Fundamental Change Purchase Price, in
whole or in part, in Common Stock but such portion of the Fundamental Change
Purchase Price shall ultimately be payable in cash because any of the conditions
to the payment of the Fundamental Change Purchase Price in Common Stock are not
satisfied, I elect [check one]:
__ to withdraw this Purchase Notice as to the Securities to which this
Purchase Notice relates in the principal amount of $_________, 000,
with certificate numbers _______, or
__ to receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which this Purchase Notice relates.
A-19
FORM OF PURCHASE NOTICE
To: Manor Care, Inc.
The undersigned registered holder of this Security hereby acknowledges
receipt of a notice from Manor Care, Inc. (the "Company") as to the holder's
option to require the Company to repurchase this Security and requests and
instructs the Company to repurchase this Security, or the portion hereof (which
is $1,000 principal amount or a integral multiple thereof) designated below, in
accordance with the terms of the Indenture referred to in this Security and
directs that the check or Common Stock of the Company, as applicable, in payment
for this Security or the portion thereof and any Securities representing any
unrepurchased principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If any portion
of this Security not repurchased is to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
Dated:
________________________________________________
________________________________________________
Signature(s)
Signature(s) must be guaranteed by a commercial
bank or trust company or a member firm of a major
stock exchange if shares of Common Stock are to
be issued, or Securities to be delivered, other
than to or in the name of the registered holder.
________________________________________________
Signature Guarantee
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
____________________________________
(Name) Principal amount to be purchased
(if less than all): $__________,000
____________________________________
(Xxxxxx Xxxxxxx)
____________________________________ _______________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
A-20
If the Company has elected to pay the Purchase Price, in whole or in part, in
Common Stock but such portion of the Purchase Price shall ultimately be payable
in cash because any of the conditions to the payment of the Purchase Price in
Common Stock are not satisfied, I elect [check one]:
__ to withdraw this Purchase Notice as to the Securities to which this
Purchase Notice relates in the Principal Amount of $_________, 000,
with certificate numbers _______, or
__ to receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which this Purchase Notice relates.
EXHIBIT B
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Manor Care, Inc. (together with its successors and
assigns, the "Company"), each other then existing Subsidiary Guarantor under the
Indenture referred to below, and National City Bank, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee have heretofore executed and delivered an Indenture, dated as of April
15, 2003 (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of an aggregate principal amount of
$90.0 million (up to $100.0 million if the Initial Purchasers' option to
purchase additional Securities is exercised in full) of 2.125% Convertible
Senior Notes due 2023 of the Company (the "Securities");
WHEREAS, Section 3.3 of the Indenture provides that the
Company is required to cause each Subsidiary (other than a Subsidiary that does
not Guarantee obligations under the Senior Credit Agreement, the 2006 Notes, the
2008 Notes or the 2013 Notes) created or acquired by the Company or one or more
of its Subsidiaries or any Subsidiary that Guarantees the payment of Debt of the
Company to execute and deliver to the Trustee a supplemental indenture pursuant
to which such Subsidiary will unconditionally Guarantee, on a joint and several
basis with the other Subsidiary Guarantors, the full and prompt payment of the
principal of and interest, Contingent Interest, if any, and Additional Amounts,
if any, on the Securities on a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
and the Company are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor, the Company, the other Subsidiary Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Supplemental
Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined, except that the term "Holders" in this
Guarantee shall refer to the term "Holders" as defined in the Indenture and the
Trustee acting on behalf or for the benefit of such Holders. The words
B-2
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1. Agreement to be Bound. The Guarantor hereby
becomes a party to the Indenture as a Subsidiary Guarantor and as such will have
all of the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2. Guarantee. The Guarantor fully, unconditionally
and irrevocably Guarantees to each Holder of the Securities and the Trustee the
Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices and other communications to
the Guarantor shall be given as provided in the Indenture to the Guarantor, at
its address set forth below, with a copy to the Company as provided in the
Indenture for notices to the Company.
SECTION 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 3.4. Severability Clause. In case any provision in
this Supplemental Indenture 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 and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.5. Ratification of Indenture; Supplemental
Indentures Part of Indenture. Except as expressly amended hereby, the Indenture
is in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Securities heretofore or hereafter authenticated and delivered shall be bound
hereby. The Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
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SECTION 3.6. Counterparts. The parties hereto may sign one or
more copies of this Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
SECTION 3.7. Headings. The headings of the Articles and the
sections in this Guarantee are for convenience of reference only and shall not
be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[SUBSIDIARY GUARANTOR],
as a Guarantor
By:_____________________________________
Name:
Title:
NATIONAL CITY BANK, as Trustee
By:_____________________________________
Name:
Title:
MANOR CARE, INC.
By: ____________________________________
Name:
Title:
[INSERT OTHER SUBSIDIARY
GUARANTORS]
By: ____________________________________
Name:
Title:
