EXHIBIT 4.4
INDENTURE (this "INDENTURE") dated as of September 20, 2000, by and
among VICAR OPERATING, INC., a Delaware corporation (the "COMPANY"),
the Guarantors listed on the signature pages hereof (the
"GUARANTORS") and Chase Manhattan Bank and Trust Company, National
Association, a national banking association organized under the
federal laws of the United States, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of (a) the Company's Senior
Subordinated Notes due 2010 issued on the date hereof (such notes, the "INITIAL
NOTES") and (b) if and when issued as provided in the Exchange and Registration
Rights Agreement (as defined in APPENDIX A hereto (the "Appendix")) or in this
Indenture, the Company's Senior Subordinated Notes due 2010 issued in the
Registered Exchange Offer in exchange for any Initial Notes or otherwise as
provided in this Indenture (the "EXCHANGE NOTES" and, together with the Initial
Notes, the "NOTES," such term to include any such notes issued in exchange or
replacement therefor). Except as otherwise provided herein, the Notes shall be
limited to $20,000,000, in aggregate principal amount outstanding at any time.
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINITIONS. As used herein, the following terms shall
have the meanings specified herein unless the context otherwise requires:
"ACCREDITED INVESTOR" means any Person that is an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness Incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person at the time such asset
is acquired by such specified Person.
"ADJUSTED EBITDA" means for the applicable period of measurement of
the Company and its Subsidiaries, (i) Consolidated EBITDA for such period MINUS
(ii) Capital Expenditures of the Company and its Subsidiaries for such period,
on a consolidated basis, exclusive of Capital Expenditures constituting
Permitted Acquisitions or funded with Net Proceeds from Asset Dispositions which
are reinvested in accordance with SECTION 5.05.
"AFFILIATE" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "CONTROL" (including, with correlative
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meanings, the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any specified Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; PROVIDED, HOWEVER, that in the case of
Holdings, the Company or any of their respective Subsidiaries beneficial
ownership of 10% or more of the Equity Interests in Holdings, the Company or
such Subsidiary, as the case may be, shall be deemed to be control.
Notwithstanding the foregoing, in no event will the Purchasers or any Holder or
any lender under the Credit Agreement or any holder of Holdings Notes or any of
their respective Affiliates be deemed to be an Affiliate of Holdings or the
Company solely by virtue of purchasing or holding any Notes or being such a
lender or holding any Holdings Notes.
"AFFILIATE TRANSACTION" is defined in SECTION 5.06.
"APPENDIX" is defined in the recitals.
"APPLICABLE LAW" means all laws, statutes, treaties, rules, codes
(including building codes), ordinances, regulations, certificates, orders and
licenses of, and legally binding interpretations by, any Governmental Authority
and judgments, decrees, injunctions, writs, permits, orders or like governmental
action of any Governmental Authority (including environmental laws and those
pertaining to health or safety) applicable to the Company or any of its
Subsidiaries or any of their properties, assets or operations.
"ASSET DISPOSITION" means the disposition whether by sale, issuance,
lease (as lessor (other than under operating leases)), transfer, loss, damage,
destruction, condemnation or other transaction (including any merger or
consolidation) or series of related transactions of any of the following: (a)
any of the Capital Stock of any of the Company's Subsidiaries or (b) any or all
of the assets of the Company or any of its Subsidiaries, in each case other than
sales of inventory in the Ordinary Course of Business. Notwithstanding the
foregoing, Asset Dispositions shall not be deemed to include (i) a transfer of
assets by the Company to a Restricted Subsidiary of the Company that (other than
Permitted Partially Owned Subsidiaries) is a Guarantor, or by a Restricted
Subsidiary of the Company that (other than Permitted Partially Owned
Subsidiaries) is a Guarantor, to the Company or to another Restricted Subsidiary
of the Company that (other than Permitted Partially Owned Subsidiaries) is a
Guarantor, (ii) an issuance of Equity Interests by a Subsidiary of the Company
to the Company or to a Restricted Subsidiary of the Company that (except for
Permitted Partially Owned Subsidiaries) is a Guarantor, or by a Restricted
Subsidiary of the Company to another Person to the extent permitted by SECTION
5.08(B), (iii) a Restricted Payment that is permitted by the provisions of
SECTION 5.02, (iv) a Permitted Investment, (v) any conversion of Cash
Equivalents into cash or any other form of Cash Equivalents, (vi) any
foreclosure on assets, (vii) sales or disposition of past due accounts
receivable in the Ordinary Course of Business, (viii) transactions permitted
under ARTICLE 6 hereof, (ix) grants of credits and allowances in the Ordinary
Course of Business, (x) the sublease of real or personal property on
commercially reasonable terms, (xi) trade-ins or exchanges of equipment or other
fixed assets, (xii) the sale and leaseback of any assets within 180 days of the
acquisition thereof, (xiii) sales of damaged, worn-out or obsolete equipment or
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assets that, in the Company's reasonable judgment, are no longer either used or
useful in the business of the Company or its Subsidiaries, or (xiv) sales of
other assets for aggregate consideration of less than $1 million with respect to
any transaction or series of related transactions, provided the total
consideration received for all assets sales under this clause (xiv) does not
exceed for any such fiscal year 5% of Consolidated Tangible Assets at the
beginning of any fiscal year.
"ASSET SALE OFFER" is defined in SECTION 4.10(A).
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"BANKRUPTCY LAW" means Title 11 of the United States Code or any
similar federal or state bankruptcy, insolvency, reorganization or other law for
the relief of debtors.
"BOARD" AND "BOARD OF DIRECTORS" means, as to any Person, the board
of directors, the board of advisors (or similar governing body) of such Person.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL EXPENDITURES" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing of fixed or capital assets or additions to fixed
or capital assets (including replacements, capitalized repairs and improvements
during such period) which should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.
"CAPITALIZED LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" of any Person means any and all shares, interests,
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.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year from the date of
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acquisition thereof; (ii) commercial paper maturing no more than one (1) year
from the date of acquisition and, at the time of acquisition, having a rating of
at least A-1 from Standard & Poor's Corporation or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iii) certificates of deposit or bankers' acceptances
maturing within one (1) year from the date of acquisition thereof issued by, or
overnight reverse repurchase agreements from, any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$250,000,000; (iv) time deposits maturing no more than thirty (30) days from the
date of creation thereof with commercial banks having membership in the Federal
Deposit Insurance Corporation and having combined capital and surplus of not
less than $250,000,000; (v) deposits or investments in mutual or similar funds
offered or sponsored by brokerage or other companies having membership in the
Securities Investor Protection Corporation and having combined capital and
surplus of not less than $250,000,000; and (vi) other money market accounts or
mutual funds which invest primarily in the securities described above.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or more related transactions, of all or
substantially all of the properties and assets of Holdings and its Subsidiaries
taken as a whole, or of the Company and its Subsidiaries taken as a whole, to
any Person or "person" (as such term is used in Section 13(d)(3) of the Exchange
Act), other than the Principals, Management Investors or their Related Parties;
(ii) the adoption of a plan relating to the liquidation or dissolution of
Holdings or the Company; (iii) the consummation of any transaction (including,
without limitation, any merger or consolidation), as a result of which, (x)
prior to a Note Registration, (1) the Principals, Management Investors and their
Related Parties beneficially own and control, directly or indirectly, less than
51% of the aggregate voting interest attributable to all outstanding Capital
Stock of Holdings, or (2) GEI and its Affiliates beneficially own, directly or
indirectly, less than 25% of the aggregate voting interest attributable to all
outstanding Capital Stock of Holdings, or (y) Holdings ceases to own directly
100% of the outstanding Equity Interests of the Company, or (z) any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act),
other than the Principals, Management Investors or their Related Parties, shall
have acquired, directly or indirectly, beneficial ownership of 35% or more on a
fully diluted basis of the aggregate voting interest attributable to all
outstanding Capital Stock of Holdings or the Company or (iv) the first day on
which a majority of the members of the Board of Directors of Holdings are not
Continuing Directors.
"CHANGE OF CONTROL OFFER" is defined in SECTION 4.09(A).
"CHANGE OF CONTROL PAYMENT" is defined in SECTION 4.09(A).
"CHANGE OF CONTROL PAYMENT DATE" is defined in Section 4.09(b)(ii).
"CLOSING" is defined in the Purchase Agreement.
"CLOSING DATE" means September 20, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
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"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Exchange Act, the body
performing such duties at such time.
"COMMON STOCK" of any Person means any and all shares, units,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock whether
outstanding on the Closing Date or issued after the Closing Date, and includes,
without limitation, all series and classes of such common stock.
"COMPANY" is defined in the preamble.
"CONSOLIDATED" or "CONSOLIDATED" (including the correlative term
"CONSOLIDATING") or on a "CONSOLIDATED BASIS," when used with reference to any
financial term in this Indenture (but not when used with respect to any Tax
Return or tax liability), means the aggregate for two or more Persons of the
amounts signified by such term for all such Persons, with inter-company items
eliminated in accordance with GAAP.
"CONSOLIDATED EBITDA" means for the applicable period of
measurement, the Consolidated Net Income of the Company and its Subsidiaries on
a consolidated basis, PLUS, without duplication, the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest
Expense for such period, PLUS (ii) provisions for taxes based on income, PLUS
(iii) total depreciation expense, PLUS (iv) total amortization expenses, PLUS
(v) other non-cash items reducing Consolidated Net Income (excluding any such
non-cash item to the extent that it represents an accrual or reserve for
potential cash items in any future period or amortization of a prepaid cash item
but, notwithstanding anything to the contrary herein, including without
limitation, reserves for lease expenses and charges and expenses related to the
closure of hospitals to the extent not paid in cash), PLUS (vi) non-recurring
costs incurred by Holdings and its Subsidiaries in 1999 relating to year 2000
computer matters, LESS other non-cash items increasing Consolidated Net Income
(excluding any such non-cash item to the extent it represents the reversal of an
accrual or reserve for potential cash item in any prior period).
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Adjusted EBITDA for the applicable period ending
on such date to (b) Consolidated Interest Expense for such applicable period.
"CONSOLIDATED INTEREST EXPENSE" means for the applicable period of
measurement of the Company and its Subsidiaries on a consolidated basis, the
aggregate interest expense (whether or not paid in cash) for such period
(including all commissions, discounts, fees and other charges in connection with
standby letters of credit and similar instruments, but excluding all
amortization of financing fees and other charges incurred by the Company and its
Subsidiaries in connection with the issuance of the Notes and the borrowings
under the Credit Agreement) for the Company and its Subsidiaries on a
consolidated basis, MINUS interest income of the Company and its Subsidiaries
for such period, on a consolidated basis.
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"CONSOLIDATED NET INCOME" means for any period the net income (or
loss) of the Company and its Subsidiaries on a consolidated basis for such
period determined in conformity with GAAP, but excluding the following clauses
(a) through (g) to the extent included in the computation thereof: (a) that
percentage of net income (or loss) of each Subsidiary of the Company
attributable to minority interests in such Subsidiary; (b) the income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary of the Company
or is merged into or consolidated with the Company or that Person's assets are
acquired by the Company or any of its Subsidiaries; (c) the income or (loss) of
any Person (other than a Subsidiary) in which such Person has an interest except
to the extent of the amount of dividends or other distributions actually paid to
the Company or any of its Subsidiaries; (d) the income of any Subsidiary of the
Company to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary; (e) any after-tax gains or losses attributable to Asset Dispositions
or returned surplus assets of any pension plan; and (f) all fees and expenses
incurred in connection with the Merger and the financing thereof, including all
non-compete payments, employment contract termination payments, deferred
payments for restricted Capital Stock of Holdings and stay bonuses made in
connection with the Merger identified on Schedule 1(n) to the Purchase
Agreement, and all premiums paid to retire debt in connection with the Merger,
and (g) (to the extent not included in clauses (a) through (f) above) (i) any
net extraordinary gains or net extraordinary losses or (ii) net non-recurring
gains or non-recurring losses to the extent attributable to Asset Dispositions,
the exercise of options to acquire Capital Stock and the extinguishment of
Indebtedness.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the equity of the common equity holders of such Person and
its Subsidiaries on a consolidated basis as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Capital Stock)
that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (x) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date of this Indenture
in the book value of any asset owned by such Person or a Subsidiary of such
Person and (y) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all off the foregoing determined in accordance
with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" as of any date of determination means
the total amount of assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable reserves and other
properly deductible items) which would appear on a consolidated balance sheet of
the Company and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, and after deducting therefrom, to the extent otherwise
included, the amounts of: (a) minority interests in Subsidiaries held by Persons
other than the Company or a Restricted Subsidiary; (b) excess of cost over fair
value of assets of
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businesses acquired, as determined in good faith by the Board of Directors of
the Company; (c) any revaluation or other write-up in book value of assets
subsequent to the Closing Date as a result of a change in the method of
valuation in accordance with GAAP consistently applied; (d) unamortized debt
discount and expenses and other unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items; (e) treasury stock; and (f)
cash set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of Capital Stock.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors immediately after consummation of the Merger or (ii) was
nominated for election or elected to such Board of Directors with the approval,
recommendation or endorsement of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"COVERAGE RATIO TEST" is defined in SECTION 5.04(A).
"CREDIT AGREEMENT" means the Credit and Guaranty Agreement, dated as
of the Closing Date, by and among the Company, Holdings and certain Subsidiaries
of the Company, as guarantors, the lenders party thereto from time to time,
Xxxxxxx Sachs Credit Partners L.P., as Sole Lead Arranger and as Sole
Syndication Agent, and Xxxxx Fargo Bank, N.A., as Administrative Agent and as
Collateral Agent, consisting of the following facilities: (i) $250 million
aggregate principal amount of term loans and (ii) a $50 million revolving credit
facility, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreement or agreements may be amended (including any amendment and
restatement thereof), supplemented, replaced, restructured, Refinanced or
otherwise modified from time to time, including any amendment, supplement,
modification or agreement adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder or extending the maturity of, Refinancing,
replacing or otherwise restructuring all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement, and whether by
the same or any other agent, lender or group of lenders or one or more
agreements; provided that in no event may such agreement be amended (including
any amendment and restatement thereof), supplemented, replaced, restructured,
Refinanced or otherwise modified to increase the amount of available borrowings
(except (x) for increases not in excess of the actual amount of accrued interest
thereon plus prepayment premiums and fees and expenses associated with a
Refinancing, replacement or other restructuring thereunder, (y) as permitted to
be Incurred under SECTIONS 5.04(A), 5.04(B)(III), 5.04(B)(VII) and
5.04(B)(XIII), and (z) for other increases not to exceed $25 million in
principal amount).
"CREDIT DOCUMENTS" means the Credit Agreement, any Currency
Agreement or Interest Swap Obligations, and all certificates, instruments,
financial and other statements and other documents and agreements made or
delivered from time to time in connection therewith and related thereto.
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"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Subsidiary of the Company against fluctuations in currency
values.
"CUSTODIAN" is defined in SECTION 7.01.
"DEFINITIVE NOTE" is defined in the APPENDIX.
"DEFAULT" means any event, act or condition that is, or with the
giving of notice, lapse of time or both would constitute, an Event of Default.
"DEPOSITARY" is defined in the APPENDIX.
"DESIGNATED SENIOR INDEBTEDNESS" of the Company or any Guarantor
means (a) Indebtedness under or in respect of the Credit Agreement or a
Guarantee thereof of the Company or such Guarantor, as applicable, and (b) any
other Senior Indebtedness of the Company or such Guarantor that, at the date of
determination, the holders thereof have loans outstanding and/or are committed
to lend an aggregate amount of $7,500,000 or more and is specifically designated
by the Company or such Guarantor in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness."
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening
of any event, matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the sole option of the
holder thereof (except, in each case, upon the occurrence of a Change of
Control), on or prior to the date that is 91 days after the Stated Maturity of
the Notes.
"DOMESTIC SUBSIDIARY" of any Person means a Subsidiary of such
Person (i) which is organized under the laws of the United States of America,
any State thereof or the District of Columbia or (ii) which conducts a
substantial portion of its business in or derives a substantial portion of its
revenues from sources outside the United States of America.
"EARN-OUT OBLIGATIONS" means any unsecured contingent liability of
Holdings owed to any seller in connection with a Permitted Acquisition that (a)
constitutes a portion of the purchase price for such Permitted Acquisition but
is not an amount certain on the date of incurrence thereof and is not subject to
any right of acceleration by such seller, and (b) is only payable upon the
achievement of performance standards by the Person or other property acquired in
such Permitted Acquisition and in an amount based upon such achievement provided
that the maximum aggregate amount of such liability shall be fixed at a
specified amount on the date of such Permitted Acquisition; provided, however,
that the term Earn-Out Obligations shall also include those obligations set
forth in Schedule 1(oo) to the Purchase Agreement.
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"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any underwritten public offering of
Qualified Capital Stock of Holdings, whether on a primary or secondary basis,
pursuant to an effective registration statement filed under the Securities Act.
"EVENT OF DEFAULT" is defined in SECTION 7.01.
"EXCESS PROCEEDS" is defined in SECTION 5.05(B).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" is defined in the
APPENDIX.
"EXCHANGE GUARANTEES" means the guarantees issued in the Registered
Exchange Offer.
"EXCHANGE NOTES" is defined in the recitals.
"EXEMPT SUBSIDIARIES" shall mean those Permitted Partially Owned
Subsidiaries listed on Schedule 1(c) of the Purchase Agreement that are not
Guarantors.
"EXISTING INDEBTEDNESS" is defined in the Purchase Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length transaction between a
willing seller and a willing and able buyer.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Holdings and its Subsidiaries
ending on December 31 of each calendar year.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession.
"GEI" means Green Equity Investors III, L.P., a Delaware limited
partnership.
"GLOBAL NOTES LEGEND" is defined in the APPENDIX.
"GOVERNMENTAL AUTHORITY" means (a) the government of the United
States of America or any State or other political subdivision thereof, (b) any
government or political
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subdivision of any other jurisdiction in which the Company or any of its
Subsidiaries conducts all or any part of its business, or which properly asserts
jurisdiction over any properties of the Company or any of its Subsidiaries or
(c) any entity properly exercising executive, legislative, judicial, regulatory
or administrative functions of any such government.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"GUARANTOR" is defined in the preamble.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any
Guarantor, all obligations for the principal, premium, if any, interest
(including any interest accruing on or after the filing of any petition in
bankruptcy or for reorganization at the rate provided for in the documentation
with respect thereto, whether or not such claim for post-petition interest is
allowed in such proceeding), penalties, fees, indemnification, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness of such Guarantor, whether outstanding on the Closing Date or
thereafter Incurred including, without limitation, in respect of: (i) all
monetary obligations of every nature of such Guarantor under, or with respect
to, the Credit Documents, including, without limitation, obligations to pay
principal, premium, if any, and interest (including any interest accruing on or
after the filing of any petition in bankruptcy or for reorganization at the rate
provided for in the documentation with respect thereto, whether or not such
claim for post-petition interest is allowed in such proceeding) on,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (including Guarantees thereof) and all Obligations in respect
thereof; (ii) any Obligations of such Guarantor evidenced by bonds, debentures,
notes or other similar instruments; (iii) any Capitalized Lease Obligations of
such Guarantor; (iv) any Obligation of such Guarantor arising from any Guarantee
by such Guarantor of Senior Indebtedness or of Guarantor Senior Indebtedness of
another Guarantor; (v) all Interest Swap Obligations (and Guarantees thereof);
and (vi) all Obligations (and Guarantees thereof) under Currency Agreements, in
each case whether outstanding on the Closing Date or thereafter Incurred.
Notwithstanding the foregoing, "GUARANTOR SENIOR INDEBTEDNESS" shall not
include: (i) any Indebtedness (other than with respect to any Guarantee
Obligations with respect to Senior Indebtedness of the Company) of such
Guarantor to a Subsidiary of such Guarantor; (ii) Indebtedness (other than with
respect to any Guarantee Obligations with respect to Senior Indebtedness of the
Company or with respect to other Guarantor Senior Indebtedness) to, or
guaranteed on behalf of, any shareholder, unitholder, director, officer or
employee of such Guarantor or any Subsidiary of such Guarantor (including,
without limitation, amounts owed for compensation) other than a shareholder or
unitholder who is also a lender (or an Affiliate of a lender) under the Credit
Agreement; (iii) Indebtedness to trade creditors and other amounts Incurred in
connection with obtaining goods, materials or services; (iv) Indebtedness
represented by Disqualified Capital Stock; (v) that portion of any Indebtedness
Incurred in violation of SECTION 5.04 (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (v) if the
holder(s) of such obligation or their representative shall have received an
Officers' Certificate of the Company to
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the effect that the Incurrence of such Indebtedness does not (or, in the case of
revolving credit Indebtedness, that the Incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture); (vi) Indebtedness which,
when Incurred and without respect to any election under Section 1111(b) of Xxxxx
00, Xxxxxx Xxxxxx Code, is without recourse to the Company; and (vii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of such Guarantor other than the Indebtedness under this
Indenture.
"HOLDER" means a Person in whose name a Note is registered on the
Registrar.
"HOLDINGS" means Veterinary Centers of America, Inc., a Delaware
corporation.
"HOLDINGS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means that
certain Exchange and Registration Rights Agreement, dated as of the Closing
Date, by and among Holdings and the Purchasers.
"HOLDINGS INDENTURE" means that certain Indenture, dated as of the
date hereof, by and between Holdings and Chase Manhattan Bank and Trust Company,
National Association, trustee thereunder.
"HOLDINGS NOTES" means those certain Senior Notes due 2010 of
Holdings issued on the Closing Date in an original principal amount of
$100,000,000, any Exchange Notes (as defined in the Holdings Purchase Agreement)
or any PIK Notes (as defined in the Holdings Indenture) issued after the Closing
Date pursuant to the terms of the Holdings Indenture, and any such notes issued
in exchange or replacement therefor, including any such notes issued in exchange
for the Holdings Notes pursuant to the Holdings Exchange and Registration Rights
Agreement.
"HOLDINGS PURCHASE AGREEMENT" means the Purchase Agreement dated as
of the Closing Date, by and among Holdings and the Purchasers.
"INCUR" is defined in SECTION 5.04(A).
"INDEBTEDNESS" means, with respect to any Person, without
duplication: (i) all Obligations of such Person for borrowed money (including,
without limitation, Senior Indebtedness); (ii) all Obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
Capitalized Lease Obligations of such Person; (iv) all Obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement, in each case to the extent the purchase price is due more than six
(6) months from the date the obligation is Incurred (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary course of
business); (v) all Obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction; (vi)
Guarantees and other contingent obligations in respect of Indebtedness referred
to in clauses (i) through (v) above and clause (viii) below; (vii) all
Obligations of any other Person of the type referred to in clauses (i) through
(v) which are secured by any Lien on any property or asset of such Person, the
amount of such
Page 11
Obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the Obligation so secured; and (viii) all
Obligations under Currency Agreements and all Interest Swap Obligations of such
Person.
"INDENTURE" is defined in the preamble.
"INITIAL NOTES" is defined in the recitals.
"INSTITUTIONAL ACCREDITED INVESTOR" is defined in the APPENDIX.
"INTEREST PAYMENT DATE" is defined in EXHIBIT A.
"INTEREST SWAP OBLIGATIONS" means the Obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by the Company or any of its Subsidiaries of any beneficial interest
in, including stock, partnership interest or other Equity Interests of, or
ownership interest in, any other Person (other than the Company or any other
Person who was a Restricted Subsidiary of the Company at the time of such
Investment); and (ii) any direct or indirect loan, advance or capital
contribution by the Company or any of its Subsidiaries to any other Person,
including all indebtedness and accounts receivable from that other Person that
did not arise from sales to or services provided to that other Person in the
Ordinary Course of Business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment but less all cash distributions
constituting a return of capital.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in New York or California or at a place of payment are authorized
by law, regulation or executive order to remain closed. If any payment date in
respect of the Notes is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
"LIEN" means any lien, mortgage, pledge, security interest, charge,
encumbrance or governmental levy or assessment of any kind, whether voluntary or
involuntary (including any conditional sale or other title retention agreement
and any lease in the nature thereof).
"MANAGEMENT INVESTORS" means Continuing Stockholders (as defined in
the Merger Agreement) and initial holders of Common Stock of Holdings reserved
for future issuance to employees of Holdings and its Subsidiaries as set forth
on SCHEDULE 1(D) to the Holdings Purchase Agreement.
Page 12
"MANAGEMENT SERVICES AGREEMENT" means that certain Management
Services Agreement, dated as of the Closing Date, by and between Holdings and
the Company, on the one hand, and Xxxxxxx Xxxxx & Partners, L.P., on the other.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole or (b) the material impairment of the ability of the Company or any
Guarantors that constitute a Material Subsidiary to perform in any material
respect its material obligations under any Transaction Document to which it is a
party or of any Holder to enforce any Transaction Document in any material
respect or collect any of the Obligations thereunder.
"MATERIAL SUBSIDIARY" means one or more Subsidiaries of the Company
which individually or in the aggregate shall have accounted for more than five
percent (5%) of Consolidated EBITDA for the four-Fiscal Quarter period most
recently ended.
"MATURITY", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise (including in connection with any offer to purchase
that this Indenture requires the Company to make).
"MERGER" means the merger of Merger Corp. with and into Holdings
as contemplated by the Merger Agreement.
"MERGER AGREEMENT" means that certain Amended and Restated Agreement
and Plan of Merger, dated as of August 11, 2000, by and among Holdings, the
Company and Merger Corp.
"MERGER CORP." means Vicar Recap, Inc., a Delaware corporation
formed by GEI
"NET PROCEEDS" means cash proceeds actually received by the Company
or any of its Subsidiaries from any Asset Disposition (including insurance
proceeds, awards of condemnation, and payments under notes or other debt
securities received in connection with any Asset Disposition), net of (a) the
costs of such sale, issuance, lease, transfer or other disposition (including
Taxes attributable to such sale, lease or transfer), (b) amounts applied to
repayment of Indebtedness (other than revolving credit Indebtedness under the
Credit Agreement, without a corresponding reduction in the revolving credit
commitment) secured by a Lien on the asset or property disposed of, (c) if such
Asset Disposition involves the sale of a discrete business or product line, any
accrued liabilities of such business or product line required to be paid or
retained by the Company or any of its Subsidiaries as part of such disposition
and (d) appropriate amounts to be provided by the Company or a Subsidiary, as
the case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with an Asset Disposition and retained by Holdings or such
Subsidiary, as the case may be, after such Asset Disposition, including, without
limitation, pension and benefit liabilities, liabilities related to
environmental matters or liabilities under any indemnification obligations
associated with such Asset Disposition.
Page 13
"NOTATION OF GUARANTEE" is defined in SECTION 12.07.
"NOTE REGISTRATION" shall mean the first to occur of (i) the
consummation of a Registered Exchange Offer and (ii) the effectiveness of a
Shelf Registration Statement filed with the Commission.
"NOTES" is defined in the recitals.
"NOTES CUSTODIAN" is defined in the APPENDIX.
"NOTICE OF DEFAULT" is defined in SECTION 8.05.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnification, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"OFFER AMOUNT" is defined in SECTION 4.10(A).
"OFFER PERIOD" is defined in SECTION 4.10(A).
"OFFICERS' CERTIFICATE" of the Company means a certificate signed on
behalf of the Company by the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer, Treasurer, the Assistant
Treasurer, Controller, the Secretary or an Assistant Secretary (or any such
other officer that performs similar duties) of the Company. One of the officers
signing an Officers' Certificate given pursuant to SECTION 4.06 shall be the
principal executive, financial or accounting officer or treasurer of the
Company.
"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, a Guarantor or the Trustee.
"ORDINARY COURSE OF BUSINESS" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, the ordinary course of
such Person's business, as conducted by any such Person in accordance with past
practice and undertaken by such Person in good faith and not for purposes of
evading any covenant or restriction in this Indenture, the Purchase Agreement,
the Notes and the related documents.
"PAYING AGENT" is defined in SECTION 2.03.
"PAYMENT BLOCKAGE PERIOD" is defined in SECTION 11.03.
"PERMITS" means all licenses, permits, certificates of need,
approvals and authorizations from all Governmental Authorities required to
lawfully conduct a business.
"PERMITTED ACQUISITION" means the purchase by the Company or a
Subsidiary of the Company of all or substantially all of the assets of a Person
whose primary business is the
Page 14
same, related, ancillary or complementary to the business in which the Company
and its Subsidiaries were engaged on the date of this Indenture, or any
Investment by the Company or any Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person and each Subsidiary of such Person
becomes a Restricted Subsidiary of the Company and (a) if a wholly-owned
Domestic Subsidiary, a Guarantor or (b) if a less than wholly-owned Domestic
Subsidiary, a Permitted Partially Owned Subsidiary, in each case whose primary
business is the same, related, ancillary or complementary to the business in
which the Company and its Subsidiaries were engaged on the date of this
Indenture or (ii) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, a Restricted Subsidiary of the Company and whose primary
business is the same, related, ancillary or complementary to the business in
which the Company and its Subsidiaries were engaged on the date of this
Indenture; PROVIDED that at the time of such Investment or purchase, no Default
or Event of Default exists or would be caused upon the consummation thereof.
"PERMITTED INVESTMENTS" means:
(i) any Investment in (including, without limitation, loans
and advances to) the Company or a Restricted Subsidiary of the Company
that (other than in the case of Permitted Partially Owned Subsidiaries) is
a Guarantor and whose primary business is the same, related, ancillary or
complementary to the business in which the Company and its Subsidiaries
were engaged in on the date of such Investment;
(ii) any Investment in Cash Equivalents or the Notes or
the Exchange Notes;
(iii) any Investment related to or arising out of a
Permitted Acquisition;
(iv) any Investment made in the Ordinary Course of Business
which results from the receipt of non-cash consideration from an asset
sale made pursuant to and in compliance with the provisions of SECTION
5.05 or from any sale or other disposition of assets not constituting an
Asset Disposition hereunder;
(v) loans and advances (a) to employees for emergency, moving,
entertainment, travel and other business expenses in the Ordinary Course
of Business or (b) to Holdings if the proceeds of such loans and advances
are used by Holdings to make loans or advances to employees contemplated
by clause (a) provided the total loans and advances under this clause (v)
shall not exceed $1,500,000 in the aggregate at any time outstanding;
(vi) Investments received as part of the settlement of
litigation or in satisfaction of extensions of credit to any Person
otherwise permitted under this Indenture pursuant to the reorganization,
bankruptcy or liquidation of such Person or a good faith settlement of
debts by said Person;
Page 15
(vii) any Investment existing on the date of this Indenture
and listed on Schedule 1(pp) to the Purchase Agreement;
(viii) Investments of a Person or any of its Subsidiaries
existing at the time such Person becomes a Subsidiary of the Company or at
the time such Person merges or consolidates with the Company or any of its
Subsidiaries, in either case in compliance with this Indenture; PROVIDED
that such Investments were not made by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Subsidiary of
the Company or such merger or consolidation;
(ix) Investments made in connection with purchase price
adjustments, contingent purchase price payments or other Earn-Out
Obligations paid in connection with Investments otherwise permitted under
this Indenture;
(x) Investments in securities received in settlement of
trade obligations in the Ordinary Course of Business;
(xi) loans and advances (a) not to exceed $1,500,000 at any
time outstanding to employees of Holdings or its Subsidiaries for the
purpose of funding the purchase of Capital Stock of Holdings by such
employees or (b) to Holdings if the proceeds of such loans or advances are
used by Holdings to make loans or advances contemplated by clause (a)
above; and
(xii) other Investments in Persons who are not Affiliates of
the Company or any of its Subsidiaries not to exceed $5 million in the
aggregate at any time outstanding.
"PERMITTED PARTIALLY OWNED SUBSIDIARY" means the Exempt Subsidiaries
and each other Subsidiary designated as a Permitted Partially Owned Subsidiary
by the Company in writing to the Trustee, provided (i) with respect to each
Permitted Partially Owned Subsidiary other than Exempt Subsidiaries, Capital
Stock representing 70% or more of the aggregate voting and economic interests in
such Subsidiary are directly or indirectly owned, beneficially and of record, by
the Company, (ii) the Company shall use its commercially reasonable efforts to
cause each Subsidiary to become a Guarantor, (iii) any Capital Stock not owned
directly or indirectly by the Company is owned by one or more licensed
veterinarians (or one or more professional corporations owned by such licensed
veterinarians) who will be actively involved in the business of such Subsidiary,
and (iv) at the time of designation of any Permitted Partially Owned Subsidiary
as such, that portion of Consolidated EBITDA attributable to all Permitted
Partially Owned Subsidiaries (including the Subsidiary proposed to be obligated
as such) does not represent more than 10% of the Consolidated EBITDA for the
four-Fiscal Quarter period most recently ended.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to Refinance other Indebtedness of any such Persons; PROVIDED,
HOWEVER, that (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount plus
Page 16
accrued interest and premium, if any (set forth in the original instrument
representing such Indebtedness), of the Indebtedness so Refinanced (plus the
amount of reasonable fees and expenses incurred in connection therewith); (ii)
such Permitted Refinancing Indebtedness has a final maturity date on or later
than the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, at the time
of such Refinancing, the Indebtedness being Refinanced; (iii) if the
Indebtedness being Refinanced is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being Refinanced; and (iv) such
Indebtedness is Incurred either by the Company or by the Subsidiary which is the
obligor on the Indebtedness being Refinanced. "Permitted Refinancing
Indebtedness" shall not include Indebtedness under the Credit Agreement which
may be Refinanced in accordance with the definition thereof.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PREFERRED STOCK" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"PRINCIPALS" means GEI and certain entities affiliated with (i)
Trust Company of the West and Xxxxxxxx Xxxx Advisors and (ii) the following
limited partners in GEI: CalPERS, Caisse De Depot, Procific and PPM America.
"PURCHASE DATE" is defined in SECTION 4.10(A).
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of the
Closing Date, by and among the Company, the Guarantors and the Purchasers.
"PURCHASERS" is defined in the APPENDIX.
"QIB" is defined in the APPENDIX.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture and the Notes.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture and the Notes.
Page 17
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "REFINANCED" and "REFINANCING"
shall have correlative meanings.
"REGISTERED EXCHANGE OFFER" is defined in the APPENDIX.
"REGISTRAR" is defined in SECTION 2.03.
"REGISTRATION DEFAULT" is defined in EXHIBIT A.
"REGULAR RECORD DATE" is defined in EXHIBIT A.
"REGULATION S" is defined in the APPENDIX.
"RELATED PARTY" with respect to any Principal means (i) any
controlling stockholder of such Principal, any Subsidiary of such Principal or
any general partner of such Principal, and (ii) any Affiliate of such Principal
and any investment fund or investment partnership managed by any Person that is,
or is an Affiliate of, such Principal to the extent such Affiliate or other
investment fund or investment partnership makes an Investment in Holdings
through the acquisition of Capital Stock from Holdings, and with respect to any
Management Investor, means a revocable inter-vivos trust established by such
Person, such Person's estate spouse, child, parent or other relative (by blood,
marriage or adoption) of the first degree, or any trust established for the
benefit of any of the foregoing.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; PROVIDED
that if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness in respect of any Designated
Senior Indebtedness. In the case of Indebtedness under the Credit Agreement, the
Representative shall mean Xxxxx Fargo Bank, N.A. (000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: S. Xxxxxxx St. Geme (telecopier no.: (213)
628-9694)), or any successor thereto under the Credit Agreement of which the
Trustee is notified.
"REQUIRED HOLDERS" means Holders holding more than 50% of the
aggregate outstanding principal amount of the outstanding Notes (exclusive of
Notes then owned directly or indirectly by Holdings, the Company or any of their
respective Subsidiaries or Affiliates).
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED NOTES LEGEND" is defined in the APPENDIX.
"RESTRICTED PAYMENTS" is defined in SECTION 5.02.
"RESTRICTED SUBSIDIARY" means either a Wholly Owned Subsidiary or a
Permitted Partially Owned Subsidiary.
Page 18
"RULE 501" is defined in the APPENDIX.
"RULE 144A" is defined in the APPENDIX.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Closing Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or any other Person from whom funds have been or are to be advanced by
such Person on the security of such property.
"SECURITIES ACT" is defined in the APPENDIX.
"SELLER NOTES" means, collectively, any unsecured promissory notes
issued by Holdings to any seller or sellers in connection with a Permitted
Acquisition which are permitted to be incurred under Section 5.04(b)(x) of the
Holdings Indenture.
"SENIOR INDEBTEDNESS" means (i) the principal of (and premium, if
any) and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement (including
attorneys' fees incurred in connection with any such proceeding, whether or not
allowed in such proceeding), indemnities and fees relating to, and all other
amounts owing under, the Credit Agreement, (ii) the principal of (and premium,
if any) and interest on Indebtedness of the Company for money borrowed, whether
incurred on or prior to the date of original issuance of the Notes or
thereafter, and any amendments, renewals, extensions, modifications,
refinancings and refundings of any such Indebtedness and (iii) Interest Swap
Obligations entered into with respect to Indebtedness described in clauses (i)
and (ii) above; PROVIDED, HOWEVER, that the following shall not constitute
Senior Indebtedness: (1) any Indebtedness as to which the terms of the
instrument creating or evidencing the same provide that such Indebtedness is not
superior in right of payment to the Notes, (2) any Indebtedness as to which the
terms of the instrument creating or evidencing the same provide that such
Indebtedness is subordinated in right of payment in any respect to any other
Indebtedness of the Company, (3) Indebtedness evidenced by the Notes or the
Guarantees, (4) any Indebtedness owed to a Person when such Person is a
Subsidiary of the Company, (5) any obligation of the Company arising from
Disqualified Capital Stock of the Company, (6) any portion of any Indebtedness
which is incurred in violation of this Indenture, (7) Existing Indebtedness, and
(8) Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to the
Company.
"SENIOR NONMONETARY DEFAULT" is defined in SECTION 11.03.
"SENIOR PAYMENT DEFAULT" is defined in SECTION 11.03.
"SHELF REGISTRATION STATEMENT" is defined in the APPENDIX.
Page 19
"SPECIAL INTEREST" is defined in EXHIBIT A.
"SPECIFIED ASSETS" means the Company's investments specified in
numbers 1 and 2 in Schedule 1(pp) to the Purchase Agreement.
"STATED MATURITY," when used with respect to any Note or any
installment of interest thereon, means the date specified in this Indenture or
such Note as the scheduled fixed date on which the principal amount of such Note
or such installment of interest is due and payable and shall not include any
contingent obligation to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for payment thereof.
"STATED MATURITY DATE" is defined in EXHIBIT A.
"STOCKHOLDERS AGREEMENT" means that certain Stockholders Agreement,
dated as of the Closing Date, by and among Holdings, the Purchasers, the
Principals and certain Management Investors.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or any
of its Subsidiaries which is expressly subordinated to and junior to the payment
and performance of the Notes or any such Subsidiary's guarantee, as applicable,
of the Notes.
"SUBORDINATED OBLIGATIONS" is defined in SECTION 11.01.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (A) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (B)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof). Any Person becoming a
Subsidiary of Holdings after the date of this Indenture should be deemed to have
Incurred all of its outstanding Indebtedness on the date it becomes a
Subsidiary.
"SUCCESSOR COMPANY" is defined in SECTION 6.01.
"SUPPLEMENTAL GUARANTEES" means Guarantees executed by future
Domestic Subsidiaries of the Company pursuant to SECTION 4.11.
"TAX RETURNS" means all reports and returns (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be filed with respect to Taxes.
"TAXES" means all federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, employment, withholding or other taxes, duties or
assessments of any kind whatsoever imposed on any Person,
Page 20
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties and includes any liability
for Taxes of another Person by contract, as a transferee or successor, under
Treasury regulation Section 1.1502-6 or analogous state, local or foreign law
provision or otherwise.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
sections 77aaa-77bbbb), as amended from time to time.
"TRANSACTION DOCUMENTS" is defined in the Purchase Agreement.
"TRANSFER RESTRICTED NOTES" is defined in the APPENDIX.
"TRIGGER DATE" is defined in the Exchange and Registration Rights
Agreement.
"TRUSTEE" is defined in the preamble.
"TRUST OFFICER" means, when used with respect to the Trustee, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, or any other
officer of the Trustee in its Corporate Trust Administration Department
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"UNITED STATES" shall have the meaning assigned to such term in
Regulation S.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and that are not callable or redeemable at the issuer's option.
"WARRANT AGREEMENT" is defined in the Holdings Purchase Agreement.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (B) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned
Page 21
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
SECTION 1.02. 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:
"indenture securities" means the Notes, the Exchange Notes, the
Guarantees and the Exchange Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meanings assigned to them by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) "to" and "until" each mean "to but excluding";
(f) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(g) any reference herein to any Person shall be construed to
include such Person's successors and assigns;
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(h) words in the singular include the plural and words in the
plural include the singular;
(i) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its nature
as unsecured Indebtedness;
(j) the principal amount of any non-interest 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
(k) 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.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING. Provisions relating to the Initial Notes
and the Exchange Notes to be issued in exchange for the Initial Notes or
otherwise as provided in this Indenture are set forth in the Appendix, which is
hereby incorporated in and expressly made a part of this Indenture. The Initial
Notes and the Trustee's certificate of authentication relating thereto shall
each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange Notes
and the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company or any Guarantor is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the
Company). Each Note shall be dated the date of its authentication. The Notes
shall bear interest as set forth in the first paragraph of the reverse side of
the Notes. The Notes shall be issuable only in registered form without interest
coupons and only in denominations of $1,000 (in principal amount at maturity)
and multiples thereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION. One officer shall sign the
Notes for the Company by manual or facsimile signature.
If an officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
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The Trustee shall, upon written direction of Holdings, authenticate
and make available for delivery Notes as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Any such appointment 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, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.03. REGISTRAR AND PAYING AGENT. (a) The Company shall maintain
an office or agency, which shall be located in the Borough of Manhattan, The
City of New York, where Notes may be presented for registration of transfer or
for exchange (the "REGISTRAR") and an office or agency where Notes may be
presented for payment (the "PAYING AGENT"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. 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-registrars. The Company initially appoints the Trustee as (i) Registrar
and Paying Agent in connection with the Notes and (ii) the Notes Custodian with
respect to the Global Exchange Notes (as defined in the Appendix).
(b) The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent 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 any 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 8.07. The
Company or any of its domestically organized Wholly Owned Subsidiaries may act
as Paying Agent or Registrar.
(c) 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 an
appointment by a successor as evidenced by an appropriate agreement entered into
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; PROVIDED,
HOWEVER, that the Trustee may resign as Paying Agent or Registrar only if the
Trustee also resigns as Trustee in accordance with SECTION 8.08.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each due
date of the principal of and interest on any Note, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a sum sufficient to pay such principal amount and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee)
Page 24
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Notes and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
Subsidiary of the Company 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 to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this SECTION 2.04, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.05. HOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at
least five 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
Holders.
SECTION 2.06. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with the Appendix. When a Note is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are met.
When Notes are presented to the Registrar with a request to exchange them for an
equal principal amount of Notes of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar's request. The Company may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this SECTION 2.06. The Company shall not be required to make and the Registrar
need not register transfers or exchanges of Notes selected for redemption
(except, in the case of Notes to be redeemed in part, the portion thereof not to
be redeemed) or any Notes for a period of 15 days before a selection of Notes to
be redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Guarantors, the Trustee, the Paying Agent and the
Registrar shall treat the Person in whose name a Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal of
and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, any Guarantor, the
Paying Agent, the Trustee or the Registrar shall be affected by notice to the
contrary.
Any Holder of a Global Exchange Note shall, by acceptance of such
Global Exchange Note, agree that transfers of beneficial interest in such Global
Exchange Note may be effected only through a book-entry system maintained by (a)
the Holder of such Global Exchange Note (or its agent) or (b) any Holder of a
beneficial interest in such Global Exchange Note, and that ownership of a
beneficial interest in such Global Exchange Note shall be required to be
reflected in a book entry.
Page 25
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.07. REPLACEMENT NOTES. If a mutilated Note is surrendered to the
Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the New
York Uniform Commercial Code are met, such that the Holder (a) satisfies the
Company or the Trustee within a reasonable time after such Holder has notice of
such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the New York 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 Trustee to protect
the Company, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Note is replaced, unless the Holder is an
institution with a Consolidated Net Worth in excess of $100 million and
contractually commits to protect the Company, the Trustee, the Paying Agent and
the Registrar from any loss that any of them may suffer if a Note is replaced,
in which case no such indemnity bond may be required. The Company and the
Trustee may charge the Holder for their expenses in replacing a Note. In the
event any such mutilated, lost, destroyed or wrongfully taken Note has become or
is about to become due and payable, the Company in its discretion may pay such
Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company.
The provisions of this SECTION 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.08. OUTSTANDING NOTES. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this SECTION 2.08 as not
outstanding. Subject to SECTION 13.06, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to SECTION 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected 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 the principal amount and interest and Special Interest, if any, payable
on that date with respect to the Notes (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 Holders on that date pursuant to the terms of this
Page 26
Indenture, then on and after that date such Notes (or portions thereof) cease to
be outstanding and interest on them ceases to accrue.
SECTION 2.09. TEMPORARY NOTES. Until Definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Notes and deliver them in exchange for temporary
Notes upon surrender of such temporary Notes at the office or agency of the
Company, without charge to the Holder.
SECTION 2.10. CANCELLATION. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
deliver canceled Notes to the Company pursuant to written direction by an
officer. The Company may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation. The Trustee shall not
authenticate Notes in place of canceled Notes other than pursuant to the terms
of this Indenture.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a payment of
interest or Special Interest, if any, on the Notes, the Company shall pay the
defaulted interest (plus interest on such defaulted interest to the extent
lawful) in any lawful manner. The Company may pay the defaulted interest to the
Persons who are Holders on a subsequent special record date. The Company shall
fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Notes may use
Committee on Uniform Securities Identification Procedures numbers (the "CUSIP
NUMBERS") (if then generally in use) and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders; PROVIDED, HOWEVER,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem Notes
pursuant to SECTION 4.09, SECTION 4.10 or paragraph 5 of the Notes, it shall
notify the Trustee in
Page 27
writing of the Redemption Date and the principal amount at maturity of Notes to
be redeemed. The redemption provisions of paragraph 5 of the Notes are fully
incorporated herein.
The Company shall give each notice to the Trustee provided for in
this SECTION 3.01 at least 30 days before the Redemption Date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the Notes
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
fewer than 15 days after the date of notice to the Trustee. Any such notice may
be canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If fewer than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro
rata from all of the Holders. The Trustee shall make the selection from
outstanding Notes not previously called for redemption. The Trustee may select
for redemption portions of the principal amount at maturity of Notes that have
denominations larger than $1,000. Notes and portions of them the Trustee selects
shall be in principal amounts at maturity of $1,000 or a multiple thereof.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. (a) At least 10 days but not more than
60 days before a date for redemption of Notes, the Company shall mail a notice
of redemption by first-class mail or by telefacsimile, with written confirmation
of receipt, to each Holder of Notes to be redeemed at such Holder's registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accrued
interest to the Redemption Date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(v) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amount at maturity of
the particular Notes to be redeemed;
Page 28
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest and any Special
Interest on Notes (or portion thereof) called for redemption ceases to
accrue on and after the Redemption Date;
(vii) the CUSIP number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
SECTION 3.03.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice. Upon surrender to the
Paying Agent, such Notes shall be paid at the Redemption Price stated in the
notice, plus accrued interest and Special Interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that if the Redemption Date is after a Regular Record
Date and on or prior to the Interest Payment Date, the accrued interest and
Special Interest, if any, shall be payable to the Holder of the redeemed Notes
registered on the relevant Regular Record Date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. (New York
City time) on the Redemption Date, the Company shall deposit with the Paying
Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the Redemption Price of, and accrued
interest and Special Interest, if any, on all Notes to be redeemed on that date
other than Notes or portions of Notes called for redemption that have been
delivered by the Company to the Trustee for cancellation. On or after the
Redemption Date, the interest shall cease to accrue on Notes or portions thereof
called for redemption so long as the Company has deposited with the Paying Agent
funds sufficient to pay the principal amount of, plus accrued and unpaid
interest and Special Interest, if any, on, the Notes to be redeemed, unless the
Paying Agent is prohibited from making such payment pursuant to the terms of
this Indenture.
SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder (at the Company's expense) a new Note equal in principal amount
at maturity to the unredeemed portion of the Note surrendered.
Page 29
ARTICLE 4.
AFFIRMATIVE COVENANTS
SECTION 4.01. PAYMENT OF NOTES. (a) The Company shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Principal amount of and interest on the
Notes shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal of and interest on the Notes then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture.
(b) The Company shall pay interest on overdue principal of the Notes
at the rate specified therefor in the Notes and shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. COMMISSION REPORTS. Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall from and after a Note Registration, file with the
Commission, and provide the Trustee, Holders and prospective Holders (upon
request) within 15 days after it files them with the Commission, copies of its
annual report and the information, documents and other reports that are
specified in Section 13 and 15(d) of the Exchange Act. In the event that the
rules and regulations promulgated under the Exchange Act or the interpretations
of the Commission thereof would permit the Company, if it were subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, to cease to
file separate reports pursuant thereto, Holdings may file with the Commission
copies of its annual report and the information, documents and other reports
that are specified in Section 13 and 15(d) of the Exchange Act (including such
information as would be required to so permit the Company to cease to file
separate reports) and provide them to the Trustee and Holders and prospective
Holders (upon request) within 15 days after it files them with the Commission,
in which case the Company shall be relieved of its obligations under the
previous sentence. In addition, following an initial Equity Offering, the
Company shall furnish to the Trustee and the Holders, promptly upon their
becoming available, copies of the annual report to shareholders and any other
information provided by Holdings to its public shareholders generally. The
Company also shall comply with the other provisions of TIA section 314(a).
SECTION 4.03. PRESERVATION OF CORPORATE EXISTENCE. The Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (a) its corporate existence, and the corporate, limited liability
company, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary and (b) the
rights (charter and statutory) and licenses of the Company and its Subsidiaries;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right or license, or the corporate, limited
Page 30
liability company, partnership or other existence of any of its Subsidiaries if
the loss thereof does not and would not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.04. MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business or the business of any
of its Subsidiaries to be maintained and kept in good condition, repair and
working order and will cause to be made all necessary repairs, renewals and
replacements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly conducted;
PROVIDED, HOWEVER, that the foregoing shall not prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance does not and would not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.05. TAXES
(a) PAYMENT OF TAXES AND OTHER CLAIMS. The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all Taxes of the Company or any of its Subsidiaries and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon the property of the Company or any of its Subsidiaries;
PROVIDED, HOWEVER, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such Tax or claim (1) whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings, PROVIDED that appropriate reserves therefor are established in the
Company's consolidated financial statements in accordance with GAAP or (2) if
the failure to pay such Tax or claim would not reasonably be expected to have a
Material Adverse Effect.
(b) TAX RETURNS. The Company and its Subsidiaries shall timely file
or cause to be filed when due all material Tax Returns that are required to be
filed by or with respect to the Company or any of its Subsidiaries for taxable
years ending after the Closing Date and shall pay any Taxes due in respect of
such Tax Returns except as permitted under SECTION 4.05(A).
(c) CONTEST PROVISIONS. Prior to Note Registration, the Company
shall promptly notify the Holders in writing upon receipt by the Company or any
of its Subsidiaries of notice of any pending or threatened federal, state, local
or foreign income or franchise Tax audits or assessments which may materially
affect the Tax liabilities of the Company or any of its Subsidiaries.
(d) TRANSFER TAXES. All transfer, transfer gains, documentary,
sales, use, stamp, registration and other similar Taxes and fees (including
costs and expenses relating to such Taxes) incurred in connection with the
consummation of the transactions contemplated by this Indenture, shall be borne
by the Company. The Holders shall reasonably cooperate with the Company in the
preparation and filing of any such Tax Returns and other documentation.
SECTION 4.06. 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 made on behalf of the Company 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 and whether or
Page 31
not the signers know of any Default that occurred during such period. If they
do, the certificate shall describe the Default, its status and what action the
Company is taking or proposes to take with respect thereto. The Company also
shall comply with Section 314(a)(4) of the TIA.
SECTION 4.07. COMPLIANCE WITH LAW. The Company will, and will cause each
of its Subsidiaries to, comply with all Applicable Laws and will obtain and
maintain, and will cause each of its Subsidiaries to obtain and maintain, all
Permits necessary to the ownership of their respective properties or to the
conduct of their respective businesses, in each case to the extent necessary to
ensure that any such non-compliance with Applicable Law or any failure to obtain
or maintain such Permits, individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.08. INSURANCE. The Company shall cause its Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and business against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities engaged
in a similar businesses.
SECTION 4.09. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "CHANGE OF CONTROL OFFER") to each Holder to repurchase all or
any part (equal to $1,000 or a multiple thereof) of each Holder's Notes at an
offer price in cash equal to 101% of the outstanding principal amount thereof,
plus accrued and unpaid interest thereon, if any, until the Change of Control
Payment Date (the "CHANGE OF CONTROL PAYMENT") in accordance with the terms set
forth below. The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control, and the Company
shall not be in violation of this Indenture by reason of any act required by
such rule or other applicable law.
(b) Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder stating:
(i) that the Change of Control Offer is being made pursuant to
this SECTION 4.09 and that all Notes tendered will be accepted for
payment;
(ii) the purchase price and the purchase date, which shall be
at least 10 Business Days but no more than 60 days from the date on which
the Company mails notice of the Change of Control (the "CHANGE OF CONTROL
PAYMENT DATE");
(iii) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the
Page 32
Paying Agent for such purpose, at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
(iv) that Holders will be entitled to withdraw their election
if the Company or its designated agent for such purpose, receives, not
later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(v) other information required to be included pursuant to
SECTION 3.03.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer and (ii) pay to the Holders of
Notes or portions thereof so tendered an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered. The Company
shall promptly mail or deliver by wire transfer to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Company shall
promptly execute and mail (or cause to be transferred by book-entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; PROVIDED, HOWEVER, that each such new Note shall be
in a principal amount of $1,000 or a multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(d) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in a manner, at the times and otherwise in compliance with the
requirements set forth in this SECTION 4.09 and such third party purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.10. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(a) In the event that, pursuant to SECTION 5.05, the Company shall
be required to commence an offer to all Holders to purchase Notes (an "ASSET
SALE OFFER"), it shall follow the procedures specified in this SECTION 4.10.
Each Asset Sale Offer shall remain open for not less than ten (10) Business Days
nor more than sixty (60) days immediately following its commencement, except to
the extent that a longer period is required by Applicable Law (the "OFFER
PERIOD"). On the Business Day immediately after the termination of the Offer
Period (the "PURCHASE DATE"), the Company shall purchase the principal amount of
Notes required to be purchased pursuant to SECTION 5.05 plus accrued and unpaid
interest, if any, thereon to the Purchase Date (the "OFFER AMOUNT") or, if less
than the Offer Amount has been tendered, the Company shall purchase all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
(b) Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to each of the Holders which shall contain
all instructions and
Page 33
materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this
SECTION 4.10 and SECTION 5.05 and the length of time the Asset Sale Offer
shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed to the Company at the address specified in the notice at
least three Business Days before the Purchase Date;
(iv) that Holders shall be entitled to withdraw their election
if the Company receives, not later than the second Business Day prior to
the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased; and
(v) other information required to be included pursuant to
SECTION 3.03.
(c) On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Holders and the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this SECTION 4.10. The Company shall
promptly (but in any case not later than five (5) Business Days after the
Purchase Date) mail or deliver by wire transfer to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note and deliver it to such Holder, in a principal amount at maturity equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof.
SECTION 4.11. POST-CLOSING GUARANTEES. The Company shall cause all of its
future Domestic Subsidiaries (other than Permitted Partially Owned Subsidiaries)
to become Guarantors and to execute simultaneously with and as a precondition to
such Person becoming a Domestic Subsidiary, a Supplemental Guarantee, a Notation
of Guarantee and to otherwise acknowledge its agreement to be bound by the
Provisions of Article 12.
SECTION 4.12 FURTHER ASSURANCES. The Company shall, upon the request of
Holders, execute and deliver such further instruments and do such further acts
as may be reasonably necessary or proper to carry out more effectively the
provisions of this Indenture.
Page 34
ARTICLE 5.
NEGATIVE COVENANTS OF THE COMPANY
SECTION 5.01. STAY, EXTENSION AND USURY LAWS. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of its
obligations under the Notes or this Indenture, and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants (to the extent that it may lawfully do so) that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Holders, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 5.02. RESTRICTED PAYMENTS. (a) The Company shall not, and shall
not permit any of its Subsidiaries to, (i) declare or make any dividend payment
or other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of Capital Stock or other
Equity Interests of, including any payment in connection with a merger or
consolidation involving, the Company or any of its Subsidiaries, (ii) purchase,
redeem or otherwise acquire for value any shares of Capital Stock or other
Equity Interests of the Company or any of its Subsidiaries now or hereafter
outstanding, (iii) make any payment or prepayment of principal of, premium, if
any, interest, redemption, exchange, purchase, retirement, defeasance, sinking
fund or other payment with respect to, any Subordinated Indebtedness or (iv)
make any Restricted Investments (the items described in CLAUSES (I), (II) (III)
and (IV) are referred to as "RESTRICTED PAYMENTS"); unless at the time of and
after giving effect to such Restricted Payment;
(A) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; and
(B) the Company would, at the time such Restricted
Payment was made and after giving pro forma effect thereto as
if such Restricted Payment had been made at the beginning of
the applicable four-Fiscal Quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to
the Coverage Ratio Test set forth in Section 5.04(a) hereof;
and
(C) such Restricted Payment, together with the aggregate
of all other Restricted Payments made by the Company and its
Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by the next succeeding
paragraph), is less than the sum of (1) 50% of the
Consolidated Net Income of the Company for the period (taken
as one accounting period) from the beginning of the first
Fiscal Quarter commencing after the date of this Indenture to
the end of the Company's most recently ended Fiscal Quarter
for which internal financial statements
Page 35
are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), plus (2) 100% of the aggregate
net cash proceeds received by the Company from contributions
of capital from Holdings to the Company since the date of
this Indenture or the issue or sale since the date of this
Indenture of Equity Interests of the Company or of debt
securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or
convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Capital Stock or debt
securities that have been converted into Disqualified
Capital Stock), plus (3) to the extent that any Restricted
Investment that was made after the date of this Indenture is
sold for cash or otherwise liquidated or repaid for cash,
the lesser of (x) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if
any) and (y) the initial amount of such Restricted
Investment.
(b) The foregoing provisions shall not prohibit any of the following
if no Default or Event of Default shall have occurred and be continuing
immediately after any such transaction:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement or other
acquisitions of any Equity Interests of the Company in exchange for, or
out of the proceeds of, the substantially concurrent sale of Capital Stock
of the Company (other than any Disqualified Capital Stock); provided,
however, that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement or other acquisition shall
be excluded from clause (C)(2) of the preceding paragraph;
(iii) the defeasance, redemption or repurchase of Subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or the substantially concurrent sale (other than
to a Subsidiary of the Company) of Capital Stock of the Company (other
than Disqualified Capital Stock); provided, however, that the amount of
any such net cash proceeds from the sale of Capital Stock of the Company
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (C)(2) of the preceding
paragraph;
(iv) the payment of any distribution or dividend or the making
of any loan or advance to Holdings to enable Holdings to (A) pay its
overhead expenses (including without limitation, all expenses under the
Stockholders Agreement, the Holdings Exchange and Registration Rights
Agreement and the Warrant Agreement pertaining to the registration under
the Securities Act of the Holdings Notes and the
Page 36
Capital Stock of Holdings), (B) pay all Taxes due and owing by
Holdings, (C) (w) pay regularly scheduled installments of accrued and
unpaid interest on the Holdings Notes that are required to be paid
only in cash, (x) pay regularly scheduled installments of principal
and interest on the Seller Notes that are required to be paid in cash,
and all amounts as and when due with respect to Earn-Out Obligations
that are required to be paid in cash, and (z) regularly scheduled
installments of principal and interest and any other fees and expenses
that are required under any Existing Indebtedness as to which Holdings
is an obligor to be paid in cash, and (z) pay after the Closing Date
obligations of Holdings prior to the Asset Dropdown (as defined in the
Purchase Agreement) which remain obligations of Holdings as a matter
of law and which are required to be paid in cash, (D) make any
payments Holdings is required to make under the Management Services
Agreement (or any agreement extending or replacing the Management
Services Agreement which contains the same terms with respect to fees
and other terms no less favorable to the Company and its
Subsidiaries), (E) consummate the Merger (including making non-compete
payments to senior officers of Holdings and the Company in connection
therewith, making settlement or termination payments with respect to
certain employment contracts, making retention or stay bonus payments
and making deferred payments after the Closing with respect to
restricted Capital Stock of Holdings held by certain employees of
Holdings and its Subsidiaries, to the extent the same have been
disclosed to the Purchasers pursuant to the Purchase Agreement), repay
any Indebtedness of Holdings outstanding immediately prior to the
Merger, specified in the Purchase Agreement, to be paid in connection
with the Merger, and pay all fees and expenses incurred by Holdings in
connection with the Merger and the financing thereof, (F) pay
Holdings' auditors' fees and expenses, (G) repurchase, redeem or
otherwise acquire or retire for value of any Equity Interests of
Holdings, held by any member of Holdings', the Company's (or any of
its Subsidiaries') management pursuant to the Stockholders Agreement,
any management equity subscription agreement or stock option
agreement; provided, however, that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $1,500,000 in any Fiscal Year plus the unused portion of
said $1,500,000 from the immediately preceding Fiscal Year plus the
aggregate cash proceeds received by the Company or any Subsidiary
during such Fiscal Year from any reissuance of Equity Interests by the
Company or any Subsidiary to members of management of the Company and
its Subsidiaries plus any proceeds received during such Fiscal Year
under key man insurance policies with respect to such members of
management; and PROVIDED, FURTHER, that any such aggregate cash
proceeds from any such reissuance of Equity Interests shall be
excluded from clause (C)(2) of the preceding paragraph; and (H) to
make any other Restricted Payment or Permitted Investment, or to
consummate any Affiliate Transaction, but in each case only to the
extent permitted under the Holdings Indenture as in effect as of the
date of this Indenture;
(v) the making by the Company and its Subsidiaries of loans or
advances to veterinarians (or professional corporations owned by such
veterinarians) substantially involved in the business of a Subsidiary of
the Company to allow such veterinarians (or such professional
corporations) to acquire Capital Stock of such Subsidiary, so long as such
Subsidiary remains a Permitted Partially Owned Subsidiary
Page 37
after such acquisition of its Capital Stock and the making by the
Company of Restricted Payments to Holdings to enable Holdings to make
the loans or advances permitted by this clause (v);
(vi) the redemption or repurchase of any Capital Stock of a
Permitted Partially Owned Subsidiary owned by a licensed veterinarian (or
professional corporation owned by a licensed veterinarian) whose
employment by the Company or any Subsidiary of the Company has terminated,
provided the consideration paid does not exceed the fair market value of
such Capital Stock as determined by the Board of Directors in good faith
and all Indebtedness owed by such veterinarian (or professional
corporation) to Holdings and its Subsidiaries is repaid in full
concurrently with such redemption or repurchase;
(vii) the payment by any Subsidiary of any dividend or
distribution on its Capital Stock or the redemption or repurchase by any
Subsidiary of its Capital Stock to the extent the proceeds thereof or any
property transferred pursuant thereto are paid pro rata to the holders of
such Capital Stock;
(viii) the making of Restricted Payments by the
Company to allow Holdings to make Restricted Payments necessary to
consummate the Merger or prepay Existing Indebtedness;
(ix) the making of Restricted Payments by the Company to
Holdings to the extent that Holdings is obligated under Section 4.10 and
5.05 of the Holdings Indenture by reason of one or more Asset Sales by the
Company and its Subsidiaries to make an Asset Sale Offer to holders of the
Holdings Notes; and
(x) the making of other Restricted Payments not to exceed $5.0
million in the aggregate since the date of this Indenture.
(c) The Company and its Subsidiaries may make regularly scheduled
payments in respect of any Subordinated Indebtedness permitted hereby in
accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, any agreement pursuant to which such
Subordinated Indebtedness was issued, so long as no Event of Default described
in SECTION 7.01 has occurred or is continuing or will result therefrom, provided
that in the event that any regularly scheduled payments in respect of any
Subordinated Indebtedness are not permitted to be made because of such Events of
Default, such regularly scheduled payments in respect of any Subordinated
Indebtedness shall accrue and may be paid upon the waiver, cure or rescission of
the applicable Event of Default so long as no other Event of Default described
in SECTION 7.01 has occurred and is continuing or will result therefrom.
(d) The amount of all Restricted Payments (other than cash) shall be
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the Company or
such Subsidiary, as the case may be, pursuant to the Restricted Payment.
Page 38
SECTION 5.03. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to (a)(i) pay dividends pro rata or make any other
distributions pro rata with respect to any Capital Stock of such Subsidiary or
any other interest or participation in, or measured by, such Subsidiary's
profits, or (ii) pay any indebtedness owed by such Subsidiary to the Company or
any of the Company's other Subsidiaries, (b) make loans or advances to the
Company or any of the Company's Subsidiaries or (c) transfer any of its
properties or assets pro rata to the Company or any of the Company's
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of:
(i) Existing Indebtedness as in effect on the date of
this Indenture;
(ii) the Credit Documents as in effect as of the date of this
Indenture, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or Refinancings thereof
permitted hereunder, PROVIDED, HOWEVER, that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or Refinancings are not materially more restrictive with
respect to such provisions than those contained in the Credit Documents on
the date hereof;
(iii) this Indenture and the Notes as in effect on the date of
this Indenture, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or Refinancings thereof;
(iv) the Holdings Indenture and the Holdings Notes;
(v) applicable law;
(vi) by reason of customary non-assignment provisions in
leases, licenses and other agreements entered into in the Ordinary Course
of Business and consistent with past practices;
(vii) capital leases or purchase money obligations for
property acquired in the Ordinary Course of Business that impose
restrictions of the nature described in clause (vi) above on the property
so acquired;
(viii) Permitted Refinancing Indebtedness; PROVIDED, HOWEVER,
that such restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more restrictive
than those contained in the agreements governing the Indebtedness being
Refinanced;
(ix) any instrument governing Indebtedness, Capital Stock or
assets of a Person acquired by the Company or any of its Subsidiaries as
in effect at the time of such acquisition (except to the extent such
instrument was created or such Indebtedness was Incurred in connection
with or in contemplation of such acquisition), which
Page 39
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, PROVIDED that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be Incurred;
(x) secured Indebtedness otherwise permitted to be Incurred
pursuant to this Indenture that limits the right of the debtor thereunder
to dispose of the assets securing such Indebtedness;
(xi) contracts for the sale of assets, including without
limitation customary restrictions with respect to a Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary;
(xii) restrictions on deposits or minimum net worth
requirements imposed by customers under contracts entered into in the
Ordinary Course of Business;
(xiii) customary provisions in joint venture agreements,
licenses and leases and other similar agreements entered into in the
Ordinary Course of Business; and
(xiv) statutory or contractual provisions requiring pro rata
treatment of holders of Capital Stock of Subsidiaries constituting
Permitted Partially Owned Subsidiaries.
SECTION 5.04. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
CAPITAL STOCK OR PREFERRED STOCK.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee
or otherwise become directly or indirectly liable, contingently or otherwise
(including any operation of law), with respect to (collectively, "INCUR") any
Indebtedness (including Acquired Indebtedness), and the Company shall not issue
any Disqualified Capital Stock and shall not permit any of its Subsidiaries to
issue any Preferred Stock; provided, however, that the Company and its
Subsidiaries may Incur Indebtedness (including Acquired Indebtedness), and the
Company and the Guarantors may guarantee such Indebtedness, if immediately after
the Incurrence of such Indebtedness, the Consolidated Interest Coverage Ratio
for the most recent four full fiscal quarter period exceeds 2.50 to 1.00 if such
Incurrence is prior to September 30, 2002 and exceeds 2.75 to 1.00 if such
Incurrence occurs thereafter (the test set forth in the foregoing clause is
referred to herein as "COVERAGE RATIO TEST"). For the purpose of the Coverage
Ratio Test, with respect to any period during which a Permitted Acquisition or
an Asset Disposition has occurred (each a "SUBJECT TRANSACTION"), Consolidated
EBITDA and the components of Consolidated Interest Expense shall be calculated
with respect to such period on a pro forma basis (including pro forma
adjustments arising out of events which are directly attributable to a specific
transaction, are factually supportable and are expected to have a continuing
impact, in each case determined on a basis which is consistent with Article 11
of Regulation S-X promulgated under the Securities Act and as interpreted by the
staff of the Commission, which would include cost savings resulting
Page 40
from head count reduction, closure of facilities and similar restructuring
charges which pro forma adjustments shall be certified on behalf of the Company
by the chief financial officer of the Company) using the historical financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of the Company and its Subsidiaries
which shall be reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith, had been consummated or incurred or
repaid at the beginning of such period (and assuming that such Indebtedness
bears interest during any portion of the applicable measurement period prior to
the relevant acquisition at the weighted average of the interest rates
applicable to outstanding revolving loans under the Credit Agreement Incurred
during such period); provided, however, such calculations of Consolidated
Adjusted EBITDA with respect to Permitted Acquisitions, the consideration for
which constitutes $3,000,000 or less, shall be based on reasonable estimations
of such pre-acquisition EBITDA based on actual pre-acquisition revenues.
(b) The foregoing provisions shall not apply to:
(i) the Incurrence by the Company and its Subsidiaries of
the Existing Indebtedness;
(ii) the Incurrence by the Company and its Subsidiaries of the
Indebtedness represented by the Notes and the Guarantees thereof or the
Exchange Notes and the Exchange Guarantees thereof, as the case may be;
(iii) the Incurrence by the Company or any of its Subsidiaries
of (x) Indebtedness represented by Capitalized Lease Obligations, mortgage
financings or purchase money Indebtedness, in each case, Incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Subsidiary, or (y) Acquired Indebtedness
Incurred in connection with a Permitted Acquisition provided such
Indebtedness was not Incurred in connection with or in contemplation of
such Permitted Acquisition, in an aggregate principal amount not to exceed
(without duplication) $15,000,000 at any one time outstanding; provided
that all or a portion of the Indebtedness permitted to be incurred under
this clause (iii) may, at the option of the Company, without limitation as
to purpose, be incurred under the Credit Agreement instead of pursuant to
Capitalized Lease Obligations, mortgage financing or purchase money
Indebtedness;
(iv) the Incurrence by the Company or any of its Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to extend, Refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be Incurred;
(v) the Incurrence by the Company or any of its Subsidiaries
of intercompany Indebtedness between or among the Company and any
Restricted Subsidiaries of the Company that (except for Permitted
Partially Owned Subsidiaries) are Guarantors; PROVIDED, HOWEVER, that (A)
if the Company is the obligor on such
Page 41
Indebtedness, such Indebtedness is expressly subordinate to the payment in
full of all Obligations with respect to the Notes to the same extent that
the Notes are subordinated to Senior Indebtedness and (B)(1) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company, a
Restricted Subsidiary of the Company that (except for Permitted Partially
Owned Subsidiaries) is a Guarantor or a lender or agent under the Credit
Documents, and (2) any sale or other transfer of any such Indebtedness to
a Person other than the Company, a Restricted Subsidiary of the Company
that (except for Permitted Partially Owned Subsidiaries) is a Guarantor,
or a lender or agent upon exercise of remedies under a pledge of such
Indebtedness under the Credit Documents, shall be deemed, in each case, to
constitute an Incurrence of such Indebtedness by the Company or such
Subsidiary, as the case may be;
(vi) the Incurrence by the Company or any of its Subsidiaries
of Interest Swap Obligations that are Incurred for the purpose of fixing
or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(vii) the Incurrence by the Company and its Subsidiaries of
the Senior Indebtedness evidenced by the Credit Documents (and the
Guarantees thereof by the Company's Subsidiaries) less the amount of all
term loan repayments and permanent reductions actually made under the
Credit Agreement with the Net Proceeds of an Asset Disposition applied
thereto to the extent required by SECTION 5.05; provided that the amount
of Indebtedness permitted to be Incurred pursuant to the Credit Agreement
in accordance with this clause (vii) shall be in addition to any
Indebtedness permitted to be incurred pursuant to the Credit Agreement in
reliance on and in accordance with SECTION 5.04(A) above, with clause
(iii) above and clause (xiii) below and with clause (z) in the definition
of Credit Agreement;
(viii) the Incurrence by the Company or any of its
Subsidiaries of Indebtedness under Currency Agreements;
(ix) the Incurrence by the Company or any of its Subsidiaries
of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except
in the case of daylight overdrafts) drawn against insufficient funds in
the Ordinary Course of Business;
(x) the Incurrence by the Company or any of its Subsidiaries
of Indebtedness of the Company or any of its Subsidiaries represented by
letters of credit for the account of the Company or such Subsidiary, as
the case may be, in order to provide security for workers' compensation
claims, payment obligations in connection with self-insurance or similar
requirements in the Ordinary Course of Business;
(xi) the Incurrence by the Company or any of its Subsidiaries
of Indebtedness in respect of performance bonds, bankers' acceptances,
workers'
Page 42
compensation claims, surety or appeal bonds, payment obligations in
connection with self-insurance or similar obligations Incurred in the
Ordinary Course of Business;
(xii) the Guarantee by the Company or any of its Subsidiaries
of Indebtedness of the Company or a Subsidiary of the Company that was
permitted to be Incurred by another provision of this SECTION 5.04;
(xiii) the Incurrence by the Company or any of its
Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any
other clause of this paragraph) in an aggregate principal amount at any
time outstanding not to exceed $15,000,000; provided that all or a portion
of the Indebtedness permitted to be incurred under this clause (xiii) may,
at the option of the Company be incurred under the Credit Agreement;
(xiv) Indebtedness arising from agreements of the Company or a
Subsidiary of the Company providing for indemnification, adjustment of
purchase price or similar obligations, in each case, Incurred in
connection with an Asset Disposition or a Permitted Acquisition;
(xv) Indebtedness arising from agreements of the Company or a
Subsidiary of the Company (including the Exchange and Registration Rights
Agreement and similar contractual undertakings) providing for
indemnification and payment of expenses relating to the registration under
the Securities Act of the sale of the Notes;
(xvi) the Incurrence by the Company or any Subsidiary of the
Company of Indebtedness constituting Restricted Payments to or Permitted
Investments in such Person permitted to be made hereunder by the Company
and its Subsidiaries;
(xvii) the Incurrence of Indebtedness by the Company or any
Subsidiary of the Company as a result of its indemnification permitted
pursuant to SECTION 5.06(C) and SECTION 5.06(D); and
(xviii) the Incurrence of Indebtedness by the Company or any
Subsidiary of the Company in connection with repurchases or redemption of
minority interests in Permitted Partially Owned Subsidiaries permitted by
SECTION 5.02(B)(VI), in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.
(c) For purposes of determining compliance with this SECTION 5.04,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Indebtedness described in clauses (i) through (xviii) of the
immediately preceding paragraph or is entitled to be Incurred pursuant to the
Coverage Ratio Test set forth above, the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any manner that
complies with this SECTION 5.04 and will only be required to include the amount
and type of such Indebtedness in one of such clauses of SECTION 5.04(B) or
pursuant to SECTION 5.04(A). Accrual of interest, accretion of accreted value,
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms as the
Indebtedness on which such interest is being paid and any other issuance of
securities
Page 43
paid-in-kind shall not be deemed to be an Incurrence of Indebtedness for
purposes of this SECTION 5.04. In addition, the Company may, at any time, change
the classification of an item of Indebtedness (or any portion thereof) to any
other clause of SECTION 5.04(B) or to Indebtedness properly incurred under
SECTION 5.04(A) PROVIDED that the Company would be permitted to Incur such item
of Indebtedness (or portion thereof) pursuant to such other clause of this
SECTION 5.04(B) or SECTION 5.04(A), as the case may be, at such time of
reclassification.
SECTION 5.05. ASSET DISPOSITIONS.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consummate any Asset Disposition (PROVIDED that the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company and its Subsidiaries taken as a whole shall be governed by the
provisions of SECTION 4.03 and/or ARTICLE 6 and not by the provisions of this
SECTION 5.05) unless all of the following conditions are met: (i) at any time
prior to a Note Registration, the aggregate fair market value of assets
(exclusive of (x) the Specified Assets, (y) any assets subject to a Sale and
Leaseback Transaction permitted hereunder and (z) assets involuntarily disposed
of in an insured loss or as a result of a condemnation proceeding) sold or
otherwise disposed of in any fiscal year of the Company does not exceed 20% of
the Consolidated Tangible Assets at the beginning of the fiscal year; (ii) the
consideration received is at least equal to the fair market value of such assets
(except as the result of any foreclosure or sale by the lenders under the Credit
Documents); (iii) at least 80% of the consideration received is cash; and (iv)
no Default or Event of Default then exists or shall result from such Asset
Disposition; PROVIDED, HOWEVER, that the amount of (x) any liabilities (as shown
on the Company's or such Subsidiary's most recent balance sheet) of the Company
or any Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee of any
such assets pursuant to any arrangement releasing the Company or such Subsidiary
from further liability and (y) any securities, notes or other obligations
received by the Company or any such Subsidiary from such transferee that are
converted by the Company or such Subsidiary into cash or Cash Equivalents within
90 days after the Asset Sale (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision.
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Disposition, the Company or the Subsidiary making such Asset Disposition,
as the case may be, may apply such Net Proceeds (i) to permanently reduce Senior
Indebtedness or Guarantor Senior Indebtedness or to purchase Notes (with the
consent of the Holders thereof to the extent required) or Indebtedness ranking
PARI PASSU with the Notes (and to correspondingly reduce commitments with
respect thereto) or (ii) to the acquisition of a controlling interest in another
business, the making of Capital Expenditures or the investment in or acquisition
of other long-term assets, in each case, in the same or a similar line of
business as the Company and its Subsidiaries engaged in at the time such assets
were sold or in a business reasonably related, complementing or ancillary
thereto or a reasonable expansion thereof. Pending the final application of any
such Net Proceeds, the Company may temporarily reduce revolving credit
Indebtedness under the Credit Agreement or otherwise invest such Net Proceeds in
any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the
Page 44
first sentence of this paragraph shall be deemed to constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds in any fiscal
year $5,000,000, the Company shall make an Asset Sale Offer pursuant to SECTION
4.10 to purchase the maximum principal amount of Notes that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the outstanding principal amount thereof, plus accrued and unpaid interest,
thereon to the date of purchase, in accordance with the procedures set forth in
SECTION 4.10. To the extent that the aggregate principal amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use any remaining Excess Proceeds for general corporate purposes. If
the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Company shall select the Notes to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero. To the extent that the
provisions of any securities laws or regulations conflict with the provision so
of this Indenture relating to such Asset Sale Offer, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
SECTION 5.06. TRANSACTIONS WITH AFFILIATES. The Company will not and will
not permit any of its Subsidiaries directly or indirectly to enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property or the rendering of any management, consulting, investment
banking, advisory or other similar services) with any Affiliate or with any
director, officer or employee of the Company or any Guarantor (each of the
foregoing, an "AFFILIATE TRANSACTION"), except:
(a) the performance of any of the Transaction Documents as in effect
as of the date of this Indenture and the consummation of the transactions
contemplated thereby (including pursuant to any amendment thereto so long as any
such amendment is not disadvantageous to the Holders of the Notes in any
material respect);
(b) transactions (i) in the ordinary course of and pursuant to the
reasonable requirements of the business of the Company or any of its
Subsidiaries and upon fair and reasonable terms which are not materially less
favorable to the Company or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate and
(ii) the Company delivers to the Trustee (A) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $1,000,000, a
resolution of the Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company, and (B) with
respect to any Affiliate Transaction or series of Affiliate Transactions
involving in excess of $5,000,000, an opinion as to the fairness of such
Affiliate Transaction to the Company from a financial point of view issued by an
investment banking firm of national standing;
(c) payment of customary compensation to officers, employees,
consultants and investment bankers for services actually rendered to the
Company, including indemnity;
Page 45
(d) payment of director's fees plus expenses and customary
indemnification of directors;
(e) payment of (i) fees and other expenses to Xxxxxxx Xxxxx &
Partners, L.P. and other Affiliates of GEI pursuant to the Management Services
Agreement (or any agreement extending or replacing the Management Services
Agreement that contains the same terms with respect to fees and other terms no
less favorable to Holdings and its Subsidiaries), not to exceed, in any Fiscal
Year the sum of (x) 1.6% of capital invested in Holdings by Principals, (y)
normal and customary fees for financial advice and investment banking services
that may be undertaken on behalf of the Company and its Subsidiaries that may be
undertaken from time to time, and (z) reimbursement of out-of-pocket costs and
expenses; and (ii) a one-time general services and structuring fee in connection
with the closing of the transactions contemplated in the Merger Agreement;
(f) the payment of the fees, expenses and other amounts payable by
the Company and its Subsidiaries in connection with the transactions
contemplated by the Transaction Documents (including non-competition payments to
be made to certain senior officers of Holdings or the Company disclosed to the
Purchasers pursuant to the Purchase Agreement) that were disclosed to the
Purchasers on or prior to the Closing Date;
(g) transactions undertaken pursuant to the agreements set forth on
SCHEDULE 5.06, copies of which shall have been provided to the Purchasers prior
to the Closing Date;
(h) Restricted Payments permitted by SECTION 5.03 and Permitted
Investments;
(i) transactions between or among the Company and/or its
Subsidiaries;
(j) the sale of Capital Stock of Subsidiaries of the Company to
Affiliates of such Subsidiaries to the extent that a Permitted Partially Owned
Subsidiary results therefrom, and the redemption or repurchase from Affiliates
of such Subsidiaries of minority interests in Permitted Partially Owned
Subsidiaries; and
(k) the issuance of payments, awards or grants, in cash or
otherwise, pursuant to, or the funding of, employment arrangements approved by
the Board of Directors of the Company in good faith and customary loans and
advances to employees of the Company or any Subsidiary of the Company to the
extent otherwise permitted in this Indenture.
Notwithstanding the foregoing, unless otherwise approved by the Required
Holders, no payments may be made with respect to the management fees and
expenses described in SECTION 5.06(E)(I)(X) after the Required Holders have
provided written notice to GEI of the occurrence and continuance of an Event of
Default under SECTION 7.01(A), SECTION 7.01(B) or SECTION 7.01(G) or, prior to a
Note Registration, an Event of Default caused by the failure of the Company to
comply with the covenants and agreements set forth in SECTION 9 of the Purchase
Agreement; PROVIDED such management fees may continue to accrue following such
notice and be payable (notwithstanding any maximum amount of payments otherwise
applicable to the Fiscal year in
Page 46
which such deferred payment is actually made) once such Event of Default is
cured, waived or rescinded.
SECTION 5.07. LIMITATION ON LIENS. The Company may not, and may not permit
any Subsidiary of the Company to, incur or suffer to exist any Lien on or with
respect to any property or assets now owned or hereafter acquired to secure any
Indebtedness of the Company or any Subsidiary of the Company that is expressly
by its terms pari passu with or subordinate or junior in right of payment to the
Notes or the Guarantees of the Notes made by the applicable Guarantor, (a)
without making, or causing such Subsidiary to make, effective provision for
securing the Notes (i) equally and ratably with such pari passu Indebtedness as
to such property or assets for so long as such Indebtedness will be so secured
or (ii) in the event such Indebtedness is subordinate in right of payment to the
Notes, prior to such Indebtedness as to such property or assets for so long as
such Indebtedness will be so secured, and (b) unless the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that the incurrence of such Lien complies with this Indenture.
SECTION 5.08. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF
SUBSIDIARIES. The Company shall not, and shall not permit any Subsidiary of the
Company to, transfer, convey, sell, issue, lease or otherwise dispose of any
Capital Stock of any Subsidiary of the Company to any Person (other than to the
Company or a Restricted Subsidiary of the Company), unless (a) (i) such
transfer, conveyance, sale, lease or other disposition is of all the Capital
Stock of such Subsidiary and its Subsidiaries, and (ii) the Net Proceeds from
such transfer, conveyance, sale, lease or other disposition are applied in
accordance with the provisions of SECTION 5.05, or (b) such transfer,
conveyance, sale, issuance, lease or other disposition is to a licensed
veterinarian (or professional corporation owned by a licensed veterinarian) in a
transaction resulting in a Permitted Partially Owned Subsidiary; PROVIDED,
HOWEVER, that this SECTION 5.08 shall not restrict any pledge of Capital Stock
of the Company and its Subsidiaries securing Indebtedness under the Credit
Documents.
SECTION 5.09. SALES AND LEASEBACK TRANSACTIONS. The Company shall not, and
shall not permit any of its Subsidiaries to, enter into any Sale and Leaseback
Transaction; PROVIDED, HOWEVER, that the Company and its Subsidiaries may (a)
enter into a Sale and Leaseback Transaction if (i) the Company or such
Subsidiary could have Incurred Indebtedness in an amount equal to the
Attributable Debt relating to such Sale and Leaseback Transaction pursuant to
SECTION 5.04, (ii) the gross cash proceeds of such Sale and Leaseback
Transaction are at least equal to the fair market value (as determined in good
faith by the Board of Directors) of the property that is the subject of such
Sale and Leaseback Transaction and (iii) the Company or such Subsidiary applies
the proceeds of such transaction in compliance with, the provisions of SECTION
5.05 (unless the Sale and Leaseback in question is excluded from the definition
of Asset Disposition by clauses (xi) or (xii) thereof), (b) enter into Sale and
Leaseback Transactions which are in the ordinary course of the Company's or such
Subsidiary's business consistent with past practice and at market rates with
respect to equipment acquired by the Company and its Subsidiaries after the
Closing Date if the proceeds of any such Sale Leaseback shall be entirely in
cash and shall not be less than 100% of the fair market value of the equipment
being sold (determined in good faith by the Company, provided that at the time
of and immediately after
Page 47
giving effect to any such Sale and Leaseback Transaction, the aggregate fair
market value of all equipment so sold or disposed of in connection with such
Sale and Leaseback Transactions covered by this clause (b) shall not exceed an
amount equal to $7,500,000.
SECTION 5.10. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED Debt. The
Company shall not, and shall not permit any Subsidiary that is a Guarantor to,
Incur or suffer to exist Indebtedness that is senior in right of payment to the
Notes or said Guarantor's Guarantee, as the case may be, and subordinate in
right of payment to any other Indebtedness of the Company or such Guarantor, as
the case may be.
SECTION 5.11. CONDUCT OF BUSINESS. The Company shall not and shall not
permit any of its Subsidiaries directly or indirectly to engage in any business
other than business of the type in which the Company and its Subsidiaries were
engaged on the date of this Indenture or any business reasonably related,
complementing or ancillary thereto or a reasonable expansion thereof.
ARTICLE 6.
MERGER, CONSOLIDATION, SALE OF ASSETS, ETC.
SECTION 6.01. WHEN COMPANY CAN MERGE, CONSOLIDATE, SELL ASSETS, Etc. The
Company shall not consolidate or merge with or into (whether or not the Company
is the surviving corporation), or directly and/or indirectly through its
Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of the properties and assets of the Company and its
Subsidiaries taken as a whole in one or more related transactions, to any other
Person, unless:
(a) the resulting, surviving or transferee Person (the "SUCCESSOR
COMPANY") shall be a corporation 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 a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Notes and this
Indenture;
(b) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Company
or any Subsidiary as a result of such transaction as having been Incurred by the
Successor Company or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing;
(c) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of Indebtedness
pursuant to the Coverage Ratio Test set forth in SECTION 5.04(A);
(d) 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) are permitted by and
comply with this Indenture; and
Page 48
(e) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of such transaction and will be
subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such transaction had not occurred.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but the
Company in the case of a conveyance, transfer or lease of all or substantially
all its assets shall not be released from the obligation to pay the principal of
and interest on the Notes.
ARTICLE 7.
EVENTS OF DEFAULT; REMEDIES
SECTION 7.01. EVENTS OF DEFAULT. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an "EVENT OF
DEFAULT"):
(a) the Company defaults in the payment when due of interest, if
any, on the Notes and such default continues for either (i) a period of ten (10)
days prior to a Note Registration or (ii) thirty (30) days thereafter;
(b) the Company defaults in the payment when due of the principal
amount of or premium, if any, on the Notes when the same becomes due and payable
at its Maturity, upon redemption or otherwise (whether or not such payment is
prohibited under Article 11);
(c) the Company fails to observe or perform any other covenant or
other agreement in this Indenture, the Purchase Agreement or the Notes and such
failure continues for a period of thirty (30) days after any senior officer of
the Company has obtained actual knowledge of the same;
(d) any representation, warranty, certification or statement made by
the Company or any Subsidiary of the Company in respect of the Purchase
Agreement and the related documents or in any statement or certificate at any
time given by or on behalf of the Company or any of its Subsidiaries in writing
pursuant to the Purchase Agreement or any other related documents shall be false
in any material respect on the date as of which made;
(e) a default occurs under any mortgage, indenture or agreement or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or payment of which is Guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the date of this Indenture (which default in the case (but only in the
case) of Senior Indebtedness or Guarantor Senior Indebtedness (i) constitutes a
failure to pay at final maturity (after giving effect to any applicable grace
periods and any extensions thereof) the principal amount of such Indebtedness or
(ii) shall have resulted in such
Page 49
Indebtedness being accelerated or otherwise become or being declared due and
payable prior to its stated maturity), and the principal amount of all such
Indebtedness as to which a default described in this paragraph (e) has occurred
aggregates $7,500,000 or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its Subsidiaries and such judgment or judgments remain unpaid and
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, and is not adequately covered by insurance or indemnities
which have been cash collateralized, provided that the aggregate of all such
undischarged or uninsured judgments exceeds $7,500,000;
(g) Holdings, the Company or any of its Material Subsidiaries:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of a decree or order for relief
against it in an involuntary case or proceeding or to the commencement of
any case or proceeding against it,
(iii) consents to the filing of a petition or to the
appointment of or taking possession by a Custodian (as defined below)
of it or for all or any substantial part of its property,
(iv) makes or consents to the making of a general
assignment for the benefit of its creditors,
(v) generally is not paying, or admits in writing that it
is not able to pay its debts as they become due, or
(vi) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Material Subsidiaries in an involuntary case or proceeding;
(B) appoints a Custodian of the Company or any of its
Material Subsidiaries or for all or any substantial part of
the property of the Company or any of its Material
Subsidiaries or approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of any of the foregoing; or
(C) orders the winding up or liquidation of the
Company or any of its Material Subsidiaries or adjudges any
of them as bankrupt or insolvent;
and any such order or decree remains unstayed and in effect for sixty
(60) consecutive days; or
Page 50
(h) any Guarantee of any Guarantor which is a Material Subsidiary
ceases to be in full force and effect (other than in accordance with its terms)
or any Guarantee of any Guarantor which is a Material Subsidiary is declared to
be null and void and unenforceable (other than in accordance with its terms or
as a result of payment in full of the Obligations secured thereby) or any
Guarantee of any Guarantor which is a Material Subsidiary is found to be invalid
or any Guarantor which is a Material Subsidiary denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance with the
terms of this Indenture or as a result of payment in full of the Obligations
secured thereby).
The term "CUSTODIAN" means any custodian, receiver, trustee,
assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
SECTION 7.02. ACCELERATION. If an Event of Default (other than an Event of
Default specified in SECTION 7.01(G) with respect to the Company) occurs and is
continuing, the Trustee by notice to the Company or the Holders of (i) until a
Note Registration, more than 50% in principal amount of the Notes at the time
outstanding, and (ii) thereafter, 25% or more in principal amount of the then
outstanding Notes may declare the principal of and accrued but unpaid interest
and any Special Interest on all the Notes to be due and payable; provided that
so long as the Credit Agreement shall be in force and effect, if an Event of
Default (other than an Event of Default specified in SECTION 7.01(G)) occurs and
is continuing, any such acceleration shall not be effective until the earlier to
occur of (x) five (5) Business Days following the delivery of a notice of such
acceleration to the Representative under the Credit Agreement and, if such
acceleration is declared by the Holders, to the Trustee and (y) the acceleration
of any Indebtedness under the Credit Agreement. The Company shall give notice of
any acceleration under clause (y) of the preceding sentence to the Holders and
the Trustee promptly upon its becoming aware thereof. Upon such a declaration,
such principal and interest will be due and payable immediately. If an Event of
Default specified in SECTION 7.01(G) with respect to Holdings or the Company
occurs, the principal of and interest on all the Notes shall IPSO FACTO become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. The Holders of a majority in principal
amount at maturity of the outstanding Notes by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal of or interest on Notes that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
In the interest of clarity and for the avoidance of doubt, if an
Event of Default under SECTION 7.01(E) shall have occurred, but the default
thereunder shall have been cured or waived, or any acceleration thereunder shall
have been rescinded, then such cure, waiver or rescission shall similarly and
automatically apply to the Event of Default under SECTION 7.01(E) hereof.
If an Event of Default has occurred and is continuing, the Notes
will accrue interest at 2% per annum plus the stated interest rate on the Notes,
until such time as no Event of
Page 51
Default shall be continuing (to the extent that the payment of such interest
shall be legally enforceable).
The Company shall give prompt notice to the Trustee and the Holders
of the occurrence of any Event of Default and the rescission, cure or waiver of
any Event of Default.
SECTION 7.03. OTHER REMEDIES. Notwithstanding any other provision of this
Indenture, 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
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding in its own name and as trustee
of an express trust even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 7.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount at maturity of the Notes by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of
principal of or interest on a Note, (b) a Default arising from the failure to
redeem or purchase any Note when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under SECTION 10.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 7.05. CONTROL BY MAJORITY. The Holders of a majority in principal
amount of the outstanding Notes 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 SECTION 8.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders 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 7.06. LIMITATION ON SUITS. (a) Except to enforce the right to
receive payment of principal of or interest on the Notes when due, no Holder may
pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder has previously given to the Trustee
written notice stating that an Event of Default has occurred and is
continuing;
Page 52
(ii) the Holders of at least 25% in principal amount at
maturity of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or indemnity;
and
(v) the Holders of a majority in principal amount at maturity
of the outstanding Notes do not give the Trustee a direction inconsistent
with the request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and any Special Interest and interest on the Notes held by such
Holder, on or after the respective due dates expressed or provided for in the
Notes, 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 7.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default specified
in SECTION 7.01(A) or (B) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Notes for the whole amount then due and owing
(together with interest on overdue portion of the principal amount and (to the
extent lawful) on any unpaid interest at the rate provided for in the Notes) and
the amounts provided for in SECTION 8.07.
SECTION 7.09. 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 and the Holders allowed in any
judicial proceedings relative to the Company or any Subsidiary or Guarantor,
their creditors or their property and, unless prohibited by law or applicable
regulations, 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 8.07.
SECTION 7.10. PRIORITIES. If the Trustee collects any money or property
pursuant to this ARTICLE 7, it shall pay out the money or property in the
following order:
Page 53
FIRST: to the Trustee for amounts due under SECTION 8.07;
SECOND: to Holders of Senior Indebtedness of the Company
to the extent required by Article 11;
THIRD: to Holders for amounts due and unpaid on the Notes
for principal and interest, ratably, and any Special Interest without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, any Special Interest and interest,
respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this SECTION 7.10. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and amount to be paid.
SECTION 7.11. 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 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 7.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to SECTION 7.07 or a suit by Holders of
more than 10% in principal amount at maturity of the Notes.
ARTICLE 8.
TRUSTEE
SECTION 8.01. 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.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
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(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:
(i) this paragraph does not limit the effect of SECTION
8.01(B);
(ii) 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
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 7.05.
(iv) 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.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to SECTIONS 8.01(A), 8.01(B) and 8.01(C).
(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) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall extend
to the Registrar, Notes Custodian, Paying Agent and an authenticating agent and
be subject to the provisions of this SECTION 8.01 and to the provisions of the
TIA.
SECTION 8.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute
willful misconduct or negligence.
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(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes 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.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document or as to whether or not an Event of
Default shall have occurred unless requested in writing to do so by the Holders
of not less than a majority in principal amount at maturity of the Notes at the
time outstanding, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(g) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
(h) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with SECTIONS 8.10 and 8.11.
SECTION 8.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible
for and makes no representation as to the validity, priority or adequacy of this
Indenture, any Guarantee or the Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Company or any Guarantor in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication. The Trustee shall not be
responsible for any conduct or omission by the Company or any Guarantor or the
occurrence of any Event of Default.
SECTION 8.05. NOTICE OF DEFAULTS. If a Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Holder notice of the Default ("NOTICE OF DEFAULT") within 30 days after it is
known to a trust officer or written notice of it is received by the Trustee.
Except in the case of a Default in payment of principal of or interest on any
Note (including payments pursuant to the mandatory redemption provisions of such
Note, if
Page 56
any), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Holders. If a Notice of Default has been given to the Company by
the Holders, a copy of such Notice of Default shall be delivered by the Company
to the Trustee. Except as expressly provided herein, the Trustee shall not be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein, in any other Transaction
Document or in any of the documents executed in connection with the Notes, or as
to the existence of a Default or Event of Default hereunder or thereunder, and
may assume that no such Default or Event of Default has occurred unless it has
actual knowledge or received written notice thereof.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as practicable
after each year beginning with the year 2001 following the date of this
Indenture, and in any event prior to February 1 in each year, the Trustee shall
mail (if required by Section 313(a) of the TIA) to each Holder a brief report
dated as of the preceding year that complies with Section 313(a) of the TIA. The
Trustee shall also comply with Section 313(b) of the TIA.
Following a Note Registration, a copy of each report at the time of
its mailing to Holders shall be filed with the Commission and each stock
exchange (if any) on which the Notes are listed. The Company agrees to notify
promptly the Trustee whenever the Notes become listed on any stock exchange and
of any delisting thereof.
SECTION 8.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time reasonable and documented compensation for its
services. 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 and documented out-of-pocket expenses
incurred or made by it, including costs of collection, 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 and each Guarantor, jointly and
severally, shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable and documented attorneys' fees) incurred by or in
connection with the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company of any claim for which it
may seek indemnity promptly upon obtaining actual knowledge thereof; PROVIDED,
HOWEVER, that any failure so to notify the Company shall not relieve the Company
of its indemnity obligations hereunder. The Company shall defend the claim and
the indemnified party shall provide reasonable cooperation at the Company's
expense in the defense. Such indemnified parties may have separate counsel and
the Company and the Guarantors as applicable shall pay the fees and expenses of
such counsel; PROVIDED, HOWEVER, that the Company shall not be required to pay
such fees and expenses if it assumes such indemnified parties' defense and, in
such indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and the Guarantors, as applicable, and such parties in
connection with such defense. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct or negligence.
Page 57
To secure the Company's payment obligations in this SECTION 8.07,
the Trustee shall have a lien prior to the Notes 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 and Special Interest, if any, on particular Notes.
The Company's obligations pursuant to this SECTION 8.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in SECTION 7.01(G) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
All indemnifications and releases from liability granted hereunder
to the Trustee shall extend to its officers, directors, employees, agents,
successors and assigns.
SECTION 8.08. REPLACEMENT OF TRUSTEE. (a) The Trustee may resign at any
time by so notifying the Company in writing in accordance with the provisions of
SECTION 13.02. Any resignation of the Trustee shall be effective immediately
upon receipt by the Company of such notice (unless such notice shall specify a
later time as the effective time of such resignation, in which case such later
time shall be the effective time), and the resignation of the Trustee shall not
prejudice any rights of the Trustee to receive any compensation, any
reimbursement of any expenses or any indemnity or right to being defended and
held harmless under this Indenture. The Holders of a majority in principal
amount at maturity of the Notes may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(i) the Trustee fails to comply with SECTION 8.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount at maturity of the Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) 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
Page 58
succession to Holders. 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 8.07.
(d) 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 10% in principal amount at maturity of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with SECTION 8.10, unless the
Trustee's duty to resign is stayed as provided in TIA section 310(b), any Holder
who has been a bona fide Holder of a Note for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
SECTION 8.08, the Company's obligations under SECTION 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers or sells 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, sale or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Notes 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 Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 8.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA section 310(a). The Trustee shall have, or
in the case of a corporation included in a bank holding company system, the
related bank holding company shall have, a combined capital and surplus of at
least $100.0 million as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA section 310(b), subject to its
right to apply for a stay of its duty to resign under the penultimate paragraph
of 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 8.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE Company. The
Trustee shall comply with TIA section 311(a), excluding any creditor
relationship listed in TIA
Page 59
section 311(b). A Trustee who has resigned or been removed shall be subject to
TIA section 311(a) to the extent indicated.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE. (a) When (i)
all outstanding Notes (other than Notes replaced or paid pursuant to SECTION
2.07) have been canceled or delivered to the Trustee for cancellation or (ii)
all outstanding Notes have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to ARTICLE 3 hereof,
and the Company irrevocably deposits with the Trustee funds in an amount
sufficient, or U.S. Government Obligations, the principal of and interest on
which will be sufficient, or a combination thereof sufficient, in the written
opinion of a nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), to pay the principal of and
interest on the outstanding Notes when due at maturity or upon redemption of all
outstanding Notes, including interest thereon to maturity or such Redemption
Date (other than Notes replaced or paid pursuant to SECTION 2.07), and Special
Interest, if any, and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to SECTION 9.01(C),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to SECTIONS 9.01(C) and 9.02, the Company at any time
may terminate (i) all of its obligations under the Notes and this Indenture
("LEGAL DEFEASANCE OPTION") or (ii) its obligations under SECTIONS 5.02, 5.03,
5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10 and 6.01 and the operation of 7.01(C),
7.01(D), 7.01(E), 7.01(F) and 7.01(G) ("COVENANT DEFEASANCE OPTION"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 7.01(c),
7.01(D), 7.01(E), 7.01(F) or 7.01(G).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in SECTIONS 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 8.07, 8.08 and in
this ARTICLE 9 shall survive until the Notes have been paid in full. Thereafter,
the Company's obligations in SECTIONS 8.07, 9.04 and 9.05 shall survive.
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SECTION 9.02. CONDITIONS TO DEFEASANCE.
(a) The Company may exercise its legal defeasance option or its
covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient, or U.S. Government Obligations the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of and interest on the Notes when
due at maturity or redemption, as the case may be, including interest
thereon to maturity or such Redemption Date and Special Interest, if any;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Notes to maturity or redemption, as the case may be;
(iii) the Company shall have delivered to the Trustee an
opinion of counsel to the effect that on the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(iv) the deposit does not constitute a default under any
other agreement binding on the Company and is not prohibited by Article
11;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (1)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and
Page 61
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes as contemplated by
this ARTICLE 9 have been complied with.
(b) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with ARTICLE 3.
SECTION 9.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this ARTICLE
9. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Notes. Money and securities so
held in trust are not subject to Article 11 or Section 12.05.
SECTION 9.04. REPAYMENT TO COMPANY. The Trustee and the Paying Agent shall
promptly turn over to the Company upon request any money or U.S. Government
Obligations held by it as provided in this ARTICLE 9 which, in the written
opinion of a nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this ARTICLE 9.
If money for the payment of principal of or interest on the Notes
has been deposited with the Trustee or Paying Agent and remains unclaimed for
two years after such amount is due and payable, the Trustee or Paying Agent
shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the
Trustee and the Paying Agent shall have no further liability for such funds and
Holders entitled to the money must look only to the recipient and not to the
Trustee for payment.
SECTION 9.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 9.06. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this ARTICLE 9
by reason of any legal proceeding or by reason of any order or judgment of any
court or Governmental Authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this ARTICLE 9 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
ARTICLE 9; PROVIDED, HOWEVER, that, if the Company has made any payment of
interest on principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated
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to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 10.
AMENDMENTS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
(a) The Company, the Guarantors and the Trustee may amend this
Indenture or the Notes without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; PROVIDED, HOWEVER, that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the
Code;
(iii) to make any change in Article 11 or SECTION 12.05 that
would limit or terminate the benefits available to any holder of Senior
Indebtedness (or any Representative therefor) under Article 11 or SECTION
12.05;
(iv) to add additional Guarantees with respect to the
Notes;
(v) to secure the Notes;
(vi) 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;
(vii) to comply with any requirement of the Commission in
connection with qualifying, or maintaining the qualification of, this
Indenture under the TIA;
(viii) to make any change that does not adversely
affect the rights of any Holder;
(ix) to provide for the issuance of the Exchange Notes, which
shall have terms substantially identical in all material respects to the
Initial Notes (except that the transfer restrictions contained in the
Initial Notes shall be modified or eliminated, as appropriate), and which
shall be treated, together with any outstanding Initial Notes, as a single
issue of securities; or
(x) to change the name or title of the Notes and any
conforming changes related thereto.
(b) No amendment under this SECTION 10.01 may make any change that
adversely affects the rights under ARTICLE 11 or SECTION 12.05 of any holder of
Senior Indebtedness then outstanding unless the Representative under the Credit
Agreement or, in the
Page 63
absence thereof, the holders holding a majority in principal amount of such
Senior Indebtedness consent to such change.
After an amendment under this SECTION 10.01 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this SECTION 10.01.
SECTION 10.02. WITH CONSENT OF HOLDERS. (a) The Company, the Guarantors
and the Trustee may amend this Indenture or the Notes without notice to any
Holder but with the written consent of the Holders of at least a majority in
principal amount at maturity of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for the Notes). However,
without the consent of each Holder affected, an amendment may not:
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest or any Special Interest on any Note;
(iii) reduce the principal amount of or extend the Stated
Maturity of any Note;
(iv) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may be redeemed in accordance
with ARTICLE 3;
(v) make any Note payable in money other than that stated
in the Note;
(vi) make any change in Article 11 or SECTION 12.05 that
adversely affects the rights of any Holder under Article 11 or SECTION
12.05;
(vii) impair the right of any holder to receive payment of
principal of and interest or any Special Interest on such Holder's Notes
on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Notes;
(viii) make any change in SECTION 7.04 or 7.07 or the
second sentence of this SECTION 10.02; or
(ix) modify the Guarantees in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under this
SECTION 10.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
Page 64
(b) No amendment under this SECTION 10.02 may make any change that
adversely affects the rights under ARTICLE 11 or SECTION 12.05 of any holder of
Senior Indebtedness then outstanding unless the Representative under the Credit
Agreement or, in the absence thereof, the holders holding a majority in
principal amount of such Senior Indebtedness consent to such change.
After an amendment under this SECTION 10.02 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this SECTION 10.02.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. (a) A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers' Certificate from the Company certifying that the
requisite number of consents have been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the requisite
number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Company and the Trustee.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders 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 Holders 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 be valid or effective for more than 120
days after such record date.
SECTION 10.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment changes
the terms of a Note, the Trustee may require the Holder of the Note to deliver
it to the Trustee. The Trustee may place an appropriate notation on the Note
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 Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Note shall not
affect the validity of such amendment.
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SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment authorized pursuant to this ARTICLE 10 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 SECTION 8.01) 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 the Guarantors
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including SECTION 10.03).
ARTICLE 11.
SUBORDINATION OF NOTES
SECTION 11.01. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS. The Company
covenants and agrees, and each Holder of a Note, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this ARTICLE 11, the payment of all Obligations under the Notes
(the "SUBORDINATED OBLIGATIONS") are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness of the Company. The provisions of this
ARTICLE 11 shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Senior Indebtedness is rescinded or
must otherwise be returned by a holder of Senior Indebtedness upon any
Proceeding or otherwise, all as though such payment had not been made.
SECTION 11.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization, adjustment, composition or other
similar case or proceeding in connection therewith, relative to the Company or
to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of the Company,
then and in any such event specified in clause (a), (b) or (c) above (each such
event, if any, herein sometimes referred to as a "PROCEEDING") the holders of
Senior Indebtedness shall be entitled to receive or retain payment in full in
cash or Cash Equivalents of all amounts due or to become due on or in respect of
all Senior Indebtedness, before the Trustee on behalf of the Holders of the
Notes or the Holders of the Notes are entitled to receive any payment or
distribution of any kind or character, whether in cash, property or securities,
on account of Subordinated Obligations, including, without limitation, principal
of (or premium, if any) or interest (including any Special Interest) on or other
obligations in respect of the Notes (including any interest and any Special
Interest accruing on or after the filing of any Proceeding relating to the
Company, whether or not allowed in such Proceeding) or on account of any
purchase or other acquisition of Notes by the Company or any Subsidiary of the
Company (all such payments, distributions, purchases and acquisitions, whether
payable in any Proceeding or otherwise, herein referred to, individually and
collectively, as a "NOTES PAYMENT"), and to that end the holders of Senior
Indebtedness shall be entitled to
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receive, for application to the payment thereof, any Notes Payment which may be
payable or deliverable in respect of the Subordinated Obligations in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
SECTION 11.02, the Holder of any Note or the Trustee on behalf of the Holders of
the Notes shall have received any Notes Payment before all Senior Indebtedness
of the Company is paid in full in cash or Cash Equivalents, then and in such
event such Notes Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy or other person making payment or distribution of assets
of the Company for the application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay the Senior Indebtedness in full
in cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this ARTICLE 11 only (including for purposes of the
definition of "NOTES PAYMENT") the words "any payment or distribution of any
kind or character, whether in cash, property or securities" shall not be deemed
to include a payment or distribution of stock or securities of the Company
provided for by a plan of reorganization or readjustment authorized by an order
or decree of a court of competent jurisdiction in a reorganization proceeding
under any applicable bankruptcy law or of any other corporation provided for by
such plan of reorganization or readjustment which stock or securities are
subordinated in right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the Notes are so
subordinated as provided in this ARTICLE 11. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in SECTION 6.01 shall not be deemed a
Proceeding for the purposes of this SECTION 11.02 if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in SECTION 6.01.
The Representative under the Credit Agreement (or in the absence
thereof, a designated Representative for the holders of the Senior Indebtedness
specified as such in a notice to the Trustee) shall have the right to request
the Holders to file and, in the event that a Holder fails to do so within 10
days, is hereby authorized to file, a proper claim or proof of debt in the form
required in any Proceeding for and on behalf of such Holder (including on behalf
of each such Holder with respect to any such rights received by such Holder from
holders of Indebtedness of the Company due to such Indebtedness being
subordinated to the Subordinated Obligations), to accept and receive any payment
or distribution which may be payable or deliverable at any time upon or in
respect of the Subordinated Obligations in an amount not in excess of the Senior
Indebtedness then outstanding and to take such other action as may be reasonably
necessary to effectuate the foregoing. Trustee and each Holder shall provide to
the Representative under the Credit Agreement all information and documents
reasonably necessary to present claims or seek enforcement as aforesaid.
Notwithstanding the foregoing, each other Holder shall retain the right to vote
to accept or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension; PROVIDED that such Holder shall not take
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any action or vote in any way so as to contest the enforceability of this
ARTICLE 11 or the Senior Indebtedness. The Representative under the Credit
Agreement and each holder of the Senior Indebtedness shall retain the right to
vote its Senior Indebtedness to accept or reject any plan of partial or complete
liquidation, reorganization, arrangement, composition or extension; PROVIDED
that such Representative or such holder shall not take any action or vote in any
way so as to contest the enforceability of this ARTICLE 11 or the Subordinated
Obligations.
SECTION 11.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. In the
event that any Senior Payment Default (as defined below) shall have occurred and
be continuing, then no Notes Payment shall be made unless and until such Senior
Payment Default shall have been cured or waived or shall have ceased to exist or
all amounts then due and payable in respect of Senior Indebtedness shall have
been paid in full in cash or Cash Equivalents. "SENIOR PAYMENT DEFAULT" means
any default in the payment of principal of (or premium, if any), interest or
fees on Designated Senior Indebtedness when due, whether at the due date of any
such payment or by declaration of acceleration, prepayment, call for redemption
or otherwise.
Upon the occurrence of a Senior Nonmonetary Default and receipt of
written notice by the Trustee of the occurrence of such Senior Nonmonetary
Default from the Representative under the Credit Agreement (or, if the Credit
Agreement is not then in effect, a designated Representative for the holders of
the Designated Senior Indebtedness which is the subject of such Senior
Nonmonetary Default specified as such in a notice to the Trustee), no Notes
Payment may be made during a period (the "PAYMENT BLOCKAGE PERIOD") commencing
on the date of the receipt by the Trustee of such notice and ending the earlier
of (i) the date on which such Senior Nonmonetary Default shall have been cured
or waived or ceased to exist or all Designated Senior Indebtedness which was the
subject of such Senior Nonmonetary Default shall have been paid in full in cash
or Cash Equivalents and (ii) the 179th day after the date of the receipt of such
notice. No Senior Nonmonetary Default that existed or was continuing on the date
of the commencement of a Payment Blockage Period may be made the basis of the
commencement of a subsequent Payment Blockage Period whether or not within a
period of 360 consecutive days, unless such Senior Nonmonetary Default shall
have been cured for a period of not less than 90 consecutive days; PROVIDED,
HOWEVER, any breach of any financial covenant for a period commencing after the
expiration of a Payment Blockage Period that would give rise to a new event of
default, even though such breach is a breach of a provision under which a prior
event of default previously existed, shall constitute a new event of default for
this purpose. In any event, notwithstanding the foregoing, no more than one
Payment Blockage Period may be commenced during any 360-day period and there
shall be a period of at least 181 days during each 360-day period when no
Payment Blockage Period is in effect. "SENIOR NONMONETARY DEFAULT" means the
occurrence or existence and continuance of an event of default with respect to
Designated Senior Indebtedness, other than a Senior Payment Default, that
permits the holders of the Designated Senior Indebtedness (or a trustee or other
agent on behalf of the holders thereof) then to declare such Designated Senior
Indebtedness due and payable prior to the date on which it would otherwise
become due and payable.
The failure to make any payment on the Notes by reason of the
provisions of this SECTION 11.03 will not be construed as preventing the
occurrence of an Event of Default with
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respect to the Notes arising from any such failure to make payment. Upon
termination of any period of Payment Blockage Period the Company shall resume
making any and all required payments in respect of the Notes, including any
missed payments.
In the event that, notwithstanding the foregoing, the Company shall
make any Notes Payment to the Trustee on behalf of the Holders or to any Holder
prohibited by the foregoing provisions of this SECTION 11.03, then and in such
event such Notes Payment shall be paid over and delivered forthwith to the
holders of the Senior Indebtedness of the Company in the same form received and,
until so turned over, the same shall be held in trust by the Trustee on behalf
of the Holders or such Holder as the property of the holders of the Senior
Indebtedness.
By reason of such subordination, in the event of insolvency by the
Company, unsubordinated creditors of the Company who are not holders of Senior
Indebtedness or of the Notes may recover less, ratably, than holders of Senior
Indebtedness and more, ratably, than Holders of the Notes.
The provisions of this SECTION 11.03 shall not apply to any Notes
Payment with respect to which SECTION 11.02 would be applicable.
SECTION 11.04. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
ARTICLE 11 or elsewhere in this Indenture or in any of the Notes shall prevent
the Company, at any time except during the pendency of any Proceeding referred
to in SECTION 11.02 or under the conditions described in SECTION 11.03 or
described in the proviso to the first sentence of SECTION 7.02, from making
Notes Payments. The Trustee and the Required Holders shall give a prompt notice
of any acceleration of the Notes to the Representative under the Credit
Agreement (or, in the absence thereof, to a designated Representative of the
Senior Indebtedness.)
SECTION 11.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Only after the payment in full in cash or Cash Equivalents of all amounts due or
to become due on or in respect of Senior Indebtedness of the Company and, unless
the holders of Senior Indebtedness shall have the ability to terminate such
commitments, the termination of all commitments in respect thereof, the Holders
of the Notes shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to such Senior Indebtedness until the principal of (and
premium, if any) and interest on the Notes shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of the Company of any cash, property or securities to which the
Holders of the Notes or the Trustee on their behalf would be entitled except for
the provisions of this ARTICLE 11, and no payments pursuant to the provisions of
this ARTICLE 11 to the holders of Senior Indebtedness by Holders of the Notes or
the Trustee on their behalf, shall, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Notes, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness of the Company.
SECTION 11.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The provisions
of this ARTICLE 11 are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing
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contained in this ARTICLE 11 or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its creditors (other than
holders of Senior Indebtedness) and the Holders of the Notes, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this ARTICLE 11 of the holders of Senior Indebtedness, is intended
to rank equally with all other general unsecured obligations of the Company), to
pay to the Holders of the Notes the principal of (and premium, if any) and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Notes and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Holder of any Note from
exercising (subject to the proviso to the first sentence of SECTION 7.02) all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this ARTICLE 11 of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to such Holder or the Trustee on behalf of the Holders.
SECTION 11.07. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
or any Holder with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with. Without in any way limiting the generality of the foregoing, the
holders of the Senior Indebtedness may at any time and from time to time,
without the consent of or the notice to the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this ARTICLE 11 or the obligations hereunder of the
Holders to the holders of the Senior Indebtedness, do any one or more of the
following: (a) subject to the limitations on Senior Indebtedness contained in
the definition thereof or in SECTION 5.04 or SECTION 5.10, change the manner,
place or terms of payment or extend the time of payment of, or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
the Senior Indebtedness; and (d) exercise or refrain from exercising or waiving
any rights, powers or remedies against the Company and any other Persons.
SECTION 11.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets or securities of the Company
referred to in this ARTICLE 11, the Trustee and the Holders of the Notes shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Holders of Notes, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders
of the Senior Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this ARTICLE 11.
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SECTION 11.09. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS. Each Holder of a Note, by accepting such Note, acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Note, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness, and such holder of such Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
SECTION 11.10. TRUST MONIES NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under ARTICLE 9 by the Trustee for the
payment of principal of and interest on the Notes and Special Interest, if any,
in respect thereof shall not be subordinated to the prior payment of any Senior
Indebtedness of the Company or subject to the restrictions set forth in this
ARTICLE 11, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Indebtedness of the Company or any
other creditor of the Company.
SECTION 11.11. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Note authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of the
Company as provided in this ARTICLE 11 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness of the Company and shall not be liable to any such holders
if it shall mistakenly pay over or distribute to Holders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this ARTICLE 11 or otherwise.
SECTION 11.13. THIRD PARTY BENEFICIARY; NO AMENDMENT. The provisions of
this ARTICLE 11 (including the defined terms used herein) are for the benefit of
the holders of any Senior Indebtedness and shall be enforceable by each of them
directly against any Holder and may not be amended without the consent of the
Representative under the Credit Agreement or, in the absence thereof, the
holders holding the majority in principal amount of such Senior Indebtedness.
SECTION 11.14. TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing in this
ARTICLE 11 shall apply to amounts due to the Trustee pursuant to other sections
of this Indenture.
SECTION 12.
GUARANTEES
SECTION 12.01. GUARANTEES. Each of the Guarantors hereby, jointly and
severally, unconditionally guarantees, on a senior subordinated basis, to each
Holder of a Note executed
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and delivered by the Company, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of and premium and interest, including any
Special Interest, on the Notes shall be promptly paid in full when due, whether
at Stated Maturity, by acceleration, redemption or otherwise, and interest and
Special Interest on the overdue principal of (and any premium) and interest on
the Notes, and all other obligations of the Company to the Holders hereunder or
thereunder shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. The Guarantors hereby agree
that their obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a prior proceeding against the Company,
protest, notice and all demands whatsoever and covenant that this Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture. If any Holder is required by any
court or otherwise to return to the Company or Guarantors, or any Custodian,
trustee, liquidator or other similar official acting in relation to either the
Company or Guarantors, any amount paid by such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation
in relation to the Holders of Notes in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders, on the other hand, (a) the Maturity of the obligations guaranteed
hereby may be accelerated as provided in ARTICLE 12 for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (b) in the
event of any declaration of acceleration of such obligations as provided in
ARTICLE 12, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Guarantee.
SECTION 12.02. EXECUTION AND DELIVERY OF THIS INDENTURE AND SUPPLEMENTAL
GUARANTEES. To evidence its Guarantee set forth in Section 12.01, each Guarantor
hereby agrees that this Indenture shall be executed on behalf of such Guarantor
by its President or one of its Vice Presidents and, to the extent not a party to
this Indenture on the date hereof, each Guarantor shall execute and deliver to
the Holders a Supplemental Guarantee ("SUPPLEMENTAL GUARANTEE") substantially in
the form of EXHIBIT C hereto, pursuant to which such Guarantor, shall become a
Guarantor under this ARTICLE 12 and shall guarantee the Obligations of the
Company under this
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Indenture and the Notes and shall become a party to the Exchange and
Registration Rights Agreement. Concurrently with the execution and delivery of
such Supplemental Guarantee, such Guarantor shall deliver to the Trustee an
Opinion of Counsel that the foregoing have been duly authorized, executed and
delivered by such Guarantor and that such Guarantor's Guarantee is a valid and
legally binding obligation of such Guarantor, enforceable against such Guarantor
in accordance with its terms.
If an officer whose signature is on this Indenture or on a
Supplemental Guarantee no longer holds that office at the time the Company
executes and delivers the Note on which a Guarantee is endorsed, the Guarantee
shall be valid nevertheless. The execution and delivery of any Note by the
Company shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.
SECTION 12.03. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. No
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person), another corporation, Person or entity (other
than the Company or another Guarantor) unless:
(a) subject to the provisions of SECTION 12.04, the Person formed by
or surviving any such consolidation or merger (if other than such Guarantor)
unconditionally assumes all the obligations of such Guarantor under the Notes
and this Indenture pursuant to a Supplemental Guarantee, in form and substance
reasonably satisfactory to the Holders;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists;
(c) such Guarantor, or any Person formed by or surviving any such
consolidation or merger, would have Consolidated Net Worth (immediately after
giving effect to transaction), equal to or greater than the Consolidated Net
Worth of such Guarantor immediately preceding the transaction; and
(d) the Company would be permitted immediately after giving effect
to such transaction, to Incur at least $1.00 of additional Indebtedness pursuant
to the Coverage Ratio Test set forth in SECTION 5.04(A).
Notwithstanding the foregoing, no Guarantor shall be permitted to
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person), another corporation, Person or entity pursuant to the
preceding sentence if such consolidation or merger would not be permitted by
ARTICLE 6.
In case of any such consolidation or merger and upon the assumption
by the person surviving such consolidation or merger, by supplemental agreement,
executed and delivered to the Holders and satisfactory in form to the Holders,
of the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted for
the Guarantor with the same effect as if it had been named herein as a
Guarantor.
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Such successor corporation thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company. All the Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Guarantees had been issued at
the date of the execution hereof.
Except as set forth in ARTICLE 5 or ARTICLE 6, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety to
the Company.
SECTION 12.04. RELEASES OF GUARANTEES. In the event of (i) a sale or other
disposition of all of the assets of any Guarantor, by way of merger,
consolidation or otherwise in a transaction that complies with the provisions of
SECTION 12.03 or, (ii) a sale or other disposition of all of the capital stock
of any Guarantor, such Guarantor (in the event of a sale or other disposition,
by way of such a merger, consolidation, distribution or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all of the assets of such Guarantor)
will be released and relieved of any obligations under its Guarantee; PROVIDED
that the Net Proceeds of such sale or other disposition shall be applied in
accordance with the provisions of SECTION 5.05. Any Guarantor not released from
its obligations under its Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this SECTION 14.4.
SECTION 12.05. SUBORDINATION OF GUARANTEES. The Obligations of each
Guarantor under its Guarantee pursuant to this ARTICLE 12 shall be junior and
subordinated in right of payment to the prior payment in full in cash or Cash
Equivalents of the Guarantor Senior Indebtedness of such Guarantor on the same
basis and to the same extent as the Subordinated Obligations are junior and
subordinated in right of payment to Senior Indebtedness of the Company pursuant
to ARTICLE 11, MUTATIS MUTANDIS, and the provisions of ARTICLE 11 are
incorporated MUTATIS MUTANDIS in this ARTICLE 12 by this reference. For the
purposes of the foregoing sentence, the Holders and the Trustee on behalf of the
Holders shall have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including ARTICLE 11.
SECTION 12.06. LIMITATION ON GUARANTOR LIABILITY. Each Guarantor, and by
its acceptance of the Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Guarantee. To
effectuate the foregoing intention, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Guarantee and
this ARTICLE 12 shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws, and after giving effect to
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any collections from, rights to receive contribution from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this SECTION 12.06, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 12.07. ENDORSEMENT OF GUARANTEES. To evidence its Guarantee set
forth in SECTION 12.01, each Guarantor hereby agrees that a notation of such
Guarantee ("NOTATION OF GUARANTEE") substantially in the form of EXHIBIT D to
this Indenture shall be endorsed by an officer of such Guarantor on each Note
authenticated and delivered by the Company.
Each Guarantor hereby agrees that its Guarantee set forth in SECTION
12.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a Notation of Guarantee.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of TIA sections 310 to 318, inclusive, such imposed
duties or incorporated provision shall control.
SECTION 13.02. NOTICES. Any notice or communication shall be in writing
and delivered in person, mailed by first-class mail addressed as follows or
transmitted via telecopy (or other facsimile device) with receipt confirmed as
set forth below:
if to the Company:
Vicar Operating, Inc.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
(telecopier no.: (000) 000-0000)
with copies to:
Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
(telecopier no.: (000) 000-0000)
and
Page 75
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxxxxxxxxx Xxxxxxx
(telecopier no.: (000) 000-0000)
if to the Trustee:
Chase Manhattan Bank and Trust Company,
National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
(telecopier no.: (000) 000-0000)
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed ,
first class mail, to the Holder at the Holder'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 Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders may
communicate pursuant to TIA section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form 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
(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Page 76
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.05) shall
include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such 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
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. WHEN NOTES DISREGARDED. In determining whether the Holders
of the required principal amount at maturity of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, any Guarantor or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any Guarantor 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 Notes which the Trustee knows are so owned
shall be so disregarded. Subject to the foregoing, only Notes outstanding at the
time shall be considered in any such determination.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
SECTION 13.08. LEGAL HOLIDAYS. 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 shall accrue for the intervening period. If a Regular Record
Date is a Legal Holiday, the record date shall not be affected.
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Page 77
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
stockholder or member, as such, of the Company or any of the Guarantors shall
not have any liability for any obligations of the Company or any of the
Guarantors under the Notes or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Notes.
SECTION 13.11. SUCCESSORS. All agreements of the Company and each
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. MULTIPLE ORIGINALS; COUNTERPARTS. The parties may sign any
number of counterparts 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. 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.
SECTION 13.14. INCORPORATION. All Exhibits and Schedules attached hereto
are incorporated as part of this Indenture as if fully set forth herein.
SECTION 13.15. INTENT TO LIMIT INTEREST TO MAXIMUM. In no event shall the
interest rate payable on the Notes under this Indenture, plus any other amounts
paid by the Company to the Holders in connection therewith, exceed the highest
rate permissible under law that a court of competent jurisdiction shall, in the
final determination, deem applicable. The Company and the Trustee, in executing
and delivering this Indenture, intend legally to agree upon the rate or rates of
interest and the manner of payment stated within it; PROVIDED, HOWEVER, that,
anything contained herein to the contrary notwithstanding, if said rate or rates
of interest or manner of payment exceed the maximum allowable under applicable
law, then, IPSO FACTO as of the date of this Indenture, the Company is and shall
be liable only for the payment of such maximum as allowed by law, and payment
received from the Company in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of any Notes then outstanding
to the extent of such excess, or, if such excess exceeds the then outstanding
principal balance, such excess shall be first set-off against any other amounts
then due and owing by the Company and refunded to the Company.
Page 78
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
VICAR OPERATING, INC.
By: /S/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title:
GUARANTORS:
By their signature below, the officers of the corporate
Guarantors and of the corporate general partners of the
limited partnership Guarantors hereby execute this Indenture
on behalf of each of the below-listed entities.
CORPORATE GUARANTORS
AAH Merger Corporation
Academy Animal, Inc.
Xxxxxxxx Animal Hospital, Inc.
Animal Clinic of Santa Xxxx, Inc.
Animal Emergency Clinic, P.C.
Beaumont Veterinary Associates, P.C.
BerLa, Inc.
Cacoosing Animal Hospital, Ltd.
Cacoosing Pet Care & Nutrition Center, Inc.
Clarmar Animal Hospital, Inc.
Xxxxxxxx Veterinary Clinic, Inc.
Diagnostic Veterinary Service, Inc.
Eagle Park Animal Clinic, Inc.
Eagle River Veterinary Hospital, Inc.
Edgebrook, Inc.
Florida Veterinary Laboratories, Inc.
Fox Chapel Animal Hospital, Inc.
Freehold, Inc.
Xxxx Animal Hospital, Inc.
Golden Merger Corporation
H.B. Animal Clinics, Inc.
Highlands Animal Hospital, , Inc.
Howell Branch Animal Hospital, P.A.
Lake Xxxxxxx Veterinary Hospital, Inc.
Lakewood Animal Hospital, Inc.
Xxxxxxx Veterinary Hospital, Inc.
Xxxxxxxxx Veterinary Clinic, Inc.
Xxxxxx Animal Hospital
M.S. Animal Hospitals, Inc.
Newark Animal Hospital, Inc.
Northern Animal Hospital, Inc.
North Rockville Veterinary Hospital, Inc.
Northside Animal Hospital, P.C.
Xxxxx Animal Hospital, Inc.
Oak Hill Veterinary Hospital, Inc.
Old Town Veterinary Animal Hospital, Inc.
Pet Practice (Massachusetts), Inc.
Pets' Rx, Inc.
Pets' Rx Nevada, Inc.
PPI of Pennsylvania, Inc.
Princeton Animal Hospital, Inc.
Professional Veterinary Services, Inc.
Riviera Animal Hospital, Inc.
Xxxxxxxxx Blvd. Animal Hospital, Inc.
Rossmoor Center Animal Clinic, Inc.
Rossmoor - El Dorado Animal Hospital, Inc.
San Xxxxxxx Animal Clinic
Silver Spur Animal Hospital, Inc.
South County Veterinary Clinic, Inc.
Spanish River Animal Hospital, Inc.
Tampa Animal Medical Center, Inc.
The Pet Practice (Florida), Inc.
The Pet Practice (Illinois), Inc.
The Pet Practice (Massachusetts), Inc.
The Pet Practice of Michigan, Inc.
VCA Alabama, Inc.
VCA Albany Animal Hospital, Inc.
VCA Albuquerque, Inc.
VCA All Pets Animal Complex, Inc.
VCA Alpine Animal Hospital, Inc.
VCA Xxxxxxxx of California Animal Hospital, Inc.
VCA Animal Hospitals, Inc.
VCA Animal Hospital West, Inc.
VCA APAC Animal Hospital, Inc.
VCA - Xxxxx, Inc.
VCA Bay Area Animal Hospital, Inc.
VCA Cacoosing Animal Hospital, Inc.
VCA Castle Xxxxxxx Veterinary Hospital, Inc.
VCA Centers-Texas, Inc.
VCA Cenvet, Inc.
VCA Clarmar Animal Hospital, Inc.
VCA Clinical Veterinary Labs, Inc.
VCA Clinipath Labs, Inc.
VCA Closter, Inc.
VCA Xxxxxxxx Animal Hospital, Inc.
VCA Dover Animal Hospital, Inc.
VCA Eagle River Animal Hospital, Inc.
VCA East Anchorage Animal Hospital, Inc.
VCA Golden Cove Animal Hospital, Inc.
VCA Howell Branch Animal Hospital, Inc.
VCA Greater Savannah Animal Hospital, Inc.
VCA Information Systems, Inc.
VCA Kaneohe Animal Hospital, Inc.
VCA Lakeside Animal Hospital, Inc.
VCA Lamb and Xxxxxxx Animal Hospital, Inc.
VCA Xxxxxxx Animal Hospital, Inc.
VCA Xxxxx Animal Hospital, Inc.
VCA Marina Animal Hospital, Inc.
VCA Xxxxxx Animal Hospital, Inc.
VCA - Mission, Inc.
VCA Northboro Animal Hospital, Inc.
VCA Northwest Veterinary Diagnostics, Inc.
VCA of Colorado-Xxxxxxxx, Inc.
VCA of New York, Inc.
VCA of San Xxxx, Inc.
VCA of Xxxxxxxx, Inc.
VCA Professional Animal Laboratory, Inc.
VCA Real Property Acquisition Corporation
VCA Referral Associates Animal Hospital, Inc.
VCA Xxxxxx Animal Hospital, Inc.
VCA - Rossmoor, Inc.
VCA St. Petersburg Animal Hospital, Inc.
VCA Silver Spur Animal Hospital, Inc.
VCA South Shore Animal Hospital, Inc.
VCA Specialty Pet Products, Inc.
VCA Squire Animal Hospital, Inc.
VCA Texas Management, Inc.
VCA Wyoming Animal Hospital, Inc.
Veterinary Hospitals, Inc.
West Los Angeles Veterinary Medical Group, Inc.
Westwood Dog & Cat Hospital
W.E. Xxxxxxxx, D.V.M., Worth Animal Hospital,
Chartered
Xxxxxxx X. Xxxxx, D.V.M., Ltd.
Xxxxxxx, Inc.
By: /S/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By: /S/ XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
LIMITED PARTNERSHIP GUARANTORS
VCA Villa Animal Hospital, L.P.
By: VCA Animal Hospitals, Inc.,
General Partner
By: /S/ XXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By: /S/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
Veterinary Centers of America - Texas, L.P.
By: VCA Centers-Texas, Inc., General Partner
By: /S/ XXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By: /S/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
By: /S/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES AND EXCHANGE NOTES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement, dated as of September 20, 2000, by and among the
Company, the Guarantors and the Purchasers.
"DEFINITIVE NOTE" means a certificated Initial Note or Exchange Note
(bearing the Restricted Notes Legend if the transfer of such Note is restricted
by Applicable Law) that does not include the Global Notes Legend.
"DEPOSITARY" means The Depository Trust Company, its nominees and
their respective successors.
"GLOBAL NOTES LEGEND" means the legend set forth under that caption
in Exhibit B to this Indenture.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
"accredited investor" as described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"NOTES" under the Indenture include the Initial Notes and any
Exchange Notes issued in exchange for Initial Notes.
"NOTES CUSTODIAN," who shall initially be the Trustee, means the
custodian with respect to a Global Exchange Note (as appointed by the
Depositary) or any successor person thereto.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of the
Closing Date, by and among the Company and the Purchasers.
"PURCHASERS" means GS Mezzanine Partners II, L.P., a Delaware
limited partnership, GS Mezzanine Partners II Offshore, L.P., an exempted
limited partnership organized under the laws of the Cayman Islands, TCW
Leveraged Income Trust, L.P., a Delaware limited partnership, TCW Leveraged
Income Trust II, L.P., a Delaware limited partnership, TCW Leveraged Income
Trust IV, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine
Page 1
Partners II, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust
II, a closed-end Delaware statutory business trust, and The Northwestern Mutual
Life Insurance Company, a Wisconsin corporation.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"REGISTERED EXCHANGE OFFER" means the offer by the Company, pursuant
to the Exchange and Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such Holders, in exchange for their Initial
Notes, a like aggregate principal amount at maturity of Exchange Notes
registered under the Securities Act.
"REGULATION S" means Regulation S under the Securities Act.
"RESTRICTED NOTES LEGEND" means the legend set forth in PARAGRAPH
2.3(D)(I) herein.
"RULE 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means a registration statement filed
by the Company in connection with the offer and sale of Initial Notes pursuant
to the Exchange and Registration Rights Agreement.
"TRANSFER RESTRICTED NOTES" means Definitive Notes and any other
Notes that bear or are required to bear the Restricted Notes Legend.
1.2 OTHER DEFINITIONS
TERM: DEFINED IN SECTION:
----- -------------------
"AGENT MEMBERS" 2.1(c)
"INITIAL DEFINITIVE NOTES" 2.1(b)
"GLOBAL EXCHANGE NOTE" 2.1(b)
2. THE NOTES
2.1 FORM AND DATING
(a) The Initial Notes issued on the date hereof will be sold by the
Company pursuant to the Purchase Agreement to the Purchasers. Such Initial Notes
may thereafter be
Page 2
transferred to, among others, QIBs, purchasers in reliance on Regulation S and,
except as set forth below, Institutional Accredited Investors in accordance with
Rule 501.
(b) The Initial Notes shall be issued in the form of Definitive
Notes, in fully registered form (the "INITIAL DEFINITIVE NOTES") bearing the
Restricted Notes Legend and shall be issued to and registered in the name of the
applicable Purchaser and duly executed by the Company and authenticated by the
Trustee as provided in this Indenture.
Initial Notes will be exchanged for Exchange Notes in the Registered
Exchange Offer pursuant to the Exchange and Registration Rights Agreement.
Exchange Notes will also be issued upon the sale of Initial Notes (i) under a
Shelf Registration Statement or (ii) at any time that the Initial Notes being
sold are not Transfer Restricted Notes. Exchange Notes shall, except as provided
in SECTIONS 2.3 and 2.4, be issued in global form bearing the Global Notes
Legend (the "GLOBAL EXCHANGE NOTES"). The aggregate principal amount at maturity
of the Global Exchange Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee
and on the schedules thereto as hereinafter provided.
(c) BOOK-ENTRY PROVISIONS. This PARAGRAPH 2.1(C) shall apply only to
a Global Exchange Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this PARAGRAPH 2.1(C) and PARAGRAPH 2.2 and pursuant to an order of the Company
signed by one officer, authenticate and deliver one Global Exchange Note that
(i) shall be registered in the name of the Depositary for such Global Exchange
Note or the nominee of such Depositary and (ii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or held
by the Trustee as Notes Custodian.
Members of, or participants in, the Depositary ("AGENT MEMBERS")
shall have no rights under this Indenture with respect to any Global Exchange
Note held on their behalf by the Depositary or by the Trustee as Notes Custodian
or under such Global Exchange Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Exchange Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Exchange Note.
(d) DEFINITIVE NOTES. Except as provided in PARAGRAPH 2.3 or
2.4, owners of beneficial interests in Global Exchange Notes will not be
entitled to receive physical delivery of certificated Notes.
Page 3
2.2 AUTHENTICATION. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by one officer (a) Initial
Definitive Notes for original issue on the date hereof in an aggregate principal
amount of $20,000,000, (b) subject to the terms of this Indenture, Exchange
Notes in the form of Global Exchange Notes for issue in a Registered Exchange
Offer pursuant to the Exchange and Registration Rights Agreement in a like
principal amount at maturity of the Initial Notes exchanged pursuant thereto,
(c) subject to the terms of this Indenture, Exchange Notes in the form of Global
Exchange Notes in lieu of Initial Notes upon the sale of such Initial Notes (i)
under a Shelf Registration Statement or (ii) at any time that such Initial Notes
being sold are not Transfer Restricted Notes and (d) subject to the terms of
this Indenture, Definitive Notes upon presentation to the Trustee of Initial
Notes that are not required to bear the Restricted Notes Legend. Such order
shall specify the amount of the Notes to be authenticated, the date on which the
original issue of Notes is to be authenticated and whether the Notes are to be
Initial Notes or Exchange Notes. The aggregate principal amount at maturity of
Notes outstanding at any time may not exceed $20,000,000, except as provided in
SECTIONS 2.07 and 2.08 of this Indenture.
2.3 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive
Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal
amount at maturity of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, however,
that the Definitive Notes surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and
the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(2) in the case of Transfer Restricted Notes are accompanied
by the following additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(in the form set forth on the reverse side of the Initial Note); or
Page 4
(B) if such Definitive Notes are being transferred to
the Company, a certification to that effect (in the form set forth
on the reverse side of the Initial Note); or
(C) if such Definitive Notes are being transferred
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or in reliance upon another exemption
from the registration requirements of the Securities Act, (x) a
certification to that effect (in the form set forth on the reverse
side of the Initial Note) and (y) if the Company, the Registrar or
the Trustee so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in PARAGRAPH
2.3(D)(I).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL EXCHANGE NOTE. A Definitive Note may not be exchanged for a
beneficial interest in a Global Exchange Note except (i) as part of a Registered
Exchange Offer, (ii) upon sale of the Definitive Note under the Shelf
Registration Statement, (iii) upon sale of the Definitive Note at the time such
Definitive Note is not a Transfer Restricted Note or (iv) upon presentation to
the Trustee of Definitive Notes that are not Transfer Restricted Notes. Upon
receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, together with written instructions directing the Trustee to
make, or to direct the Notes Custodian to make, an adjustment on its books and
records with respect to such Global Exchange Note to reflect an increase in the
aggregate principal amount at maturity of the Notes represented by the Global
Exchange Note, such instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee shall cancel such
Definitive Note and cause, or direct the Notes Custodian to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Notes Custodian, the aggregate principal amount at maturity of Notes
represented by the Global Exchange Note to be increased by the aggregate
principal amount at maturity of the Definitive Note to be exchanged and shall
credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Exchange Note equal to the
principal amount at maturity of the Definitive Note so canceled. If no Global
Exchange Notes are then outstanding and the Global Exchange Note has not been
previously exchanged for certificated Notes pursuant to PARAGRAPH 2.4, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Exchange Note
in the appropriate principal amount at maturity.
(c) TRANSFER AND EXCHANGE OF GLOBAL EXCHANGE NOTES. (i) The transfer
of the Global Exchange Note or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor. A transferor of a beneficial interest in a Global
Exchange Note shall deliver a written order given in accordance with the
Depositary's procedures containing information regarding the participant account
of the Depositary to be credited with a beneficial interest in such Global
Exchange Note and such account shall be credited in accordance with such order
with a
Page 5
beneficial interest in the applicable Global Exchange Note and the account of
the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Exchange Note being transferred.
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in PARAGRAPH 2.4), a Global Exchange Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(d) LEGEND.
(i) Except as permitted by the following clauses (ii), (iii)
or (iv), each Definitive Note (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following form
(each defined term in the legend being defined as such for purposes of the
legend only):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
SUCH NOTE), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
Page 6
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A MINIMUM PRINCIPAL AMOUNT AT MATURITY OF THE NOTES OF $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note
that is a Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that does not bear
the legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Note if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes during the period
of the effectiveness and pursuant to a Shelf Registration Statement with respect
to such Initial Notes, all requirements pertaining to the Restricted Notes
Legend on such Initial Notes shall cease to apply and the requirements that any
such Initial Notes be issued in global form shall become applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial Notes are
offered Exchange Notes in exchange for their Initial Notes, Exchange Notes in
global form without
Page 7
the Restricted Notes Legend shall be available to Holders that exchange such
Initial Notes in such Registered Exchange Offer.
(e) CANCELLATION OR ADJUSTMENT OF GLOBAL EXCHANGE NOTE. At such time
as all beneficial interests in a Global Exchange Note have either been exchanged
for Definitive Notes, transferred, redeemed, repurchased or canceled, such
Global Exchange Note shall be returned by the Depositary 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 Exchange Note is exchanged
for Definitive Notes, transferred in exchange for an interest in another Global
Exchange Note, redeemed, repurchased or canceled, the principal amount at
maturity of Notes represented by such Global Exchange Note shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Notes Custodian for such Global Exchange Note) with respect to such
Global Exchange Note, by the Trustee or the Notes Custodian, to reflect such
reduction.
(f) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive Notes
and Global Exchange Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon
exchanges pursuant to SECTIONS 2.06, 3.06, 4.09, 4.10 and 10.05 of this
Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Note is registered
as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on and Special Interest, if any, with respect to
such Note and for all other purposes whatsoever, whether or not such Note
is overdue, and none of the Company, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Exchange Note, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any
Page 8
ownership interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee in
the case of a Global Exchange Note). The rights of beneficial owners in
any Global Exchange Note shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and
any beneficial owners.
(ii) 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 Note (including any transfers between or
among Depositary participants, members or beneficial owners in any Global
Exchange Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
2.4 DEFINITIVE NOTES
(a) A Global Exchange Note deposited with the Depositary or with the
Trustee as Notes Custodian pursuant to PARAGRAPH 2.1 or issued in connection
with a Registered Exchange Offer shall be transferred to the beneficial owners
thereof in the form of Definitive Notes in an aggregate principal amount at
maturity equal to the principal amount at maturity of such Global Exchange Note,
in exchange for such Global Exchange Note, only if such transfer complies with
PARAGRAPH 2.3 and (i) the Depositary notifies the Company that it is unwilling
or unable to continue as a Depositary for such Global Exchange Note or if at any
time the Depositary ceases to be a "clearing agency" registered under the
Exchange Act, and a successor depositary is not appointed by the Company within
90 days of such notice or after the Company becomes aware of such cessation, or
(ii) an Event of Default has occurred and is continuing or (iii) the Company, in
its sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Notes under this Indenture.
(b) Any Global Exchange Note that is transferable to the beneficial
owners thereof pursuant to this PARAGRAPH 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Exchange Note, an equal aggregate
principal amount at maturity of Definitive Notes of authorized denominations.
Any portion of a Global Exchange Note transferred pursuant to this paragraph
shall be executed, authenticated and delivered only in denominations of $1,000
(in principal amount at maturity) and any multiple thereof and registered in
such names as the
Page 9
Depositary shall direct. Any certificated Initial Note in the form of a
Definitive Note delivered in exchange for an interest in the Global Exchange
Note shall, except as otherwise provided by PARAGRAPH 2.3(D), bear the
Restricted Notes Legend.
(c) Subject to the provisions of PARAGRAPH 2.4(B), the registered
Holder of a Global Exchange Note 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 Notes.
(d) In the event of the occurrence of any of the events specified in
PARAGRAPH 2.4(A)(I), (II) or (III), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Notes in fully registered form
without interest coupons.
Page 10
EXHIBIT A
FORM OF FACE OF INITIAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT AT
MATURITY OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
Page 1
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
This debt instrument has been issued with original issue discount.
The following information is provided pursuant to Treas. Reg. Section 1.1275-3:
Issue Price: $870.00 per $1,000 of face amount
Issue Date: September 20, 2000
Amount of Original Issue Discount: $$130 per $1,000 of face amount
Yield to Maturity: 16.16%
Page 2
No. [___________] $__________
13.5% Senior Subordinated Note due 2010
VICAR OPERATING, INC., a Delaware corporation, promises to pay
to ___________ or registered assigns, the principal amount at maturity of
[ ] Dollars on September 20, 2010 (the "STATED MATURITY Date").
Interest Payment Dates: March 31 and September 30.
Record Dates: March 15 and September 15.
Page 3
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
VICAR OPERATING, INC.
By:
-------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Chase Manhattan Bank and Trust Company, National Association, Trustee, certifies
that this is one of the Notes referred to in the Indenture.
By:
-------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
Page 4
FORM OF REVERSE SIDE OF INITIAL NOTE
13.5% Senior Subordinated Note due 2010
1. INTEREST
(a) VICAR OPERATING, 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 cash interest thereon from
the date hereof, semi-annually in arrears on September 30 and March 31 of each
year commencing March 31, 2001 and, if different, on the Stated Maturity Date
(each, an "INTEREST PAYMENT DATE") at the rate of 13.5% per annum, until the
principal hereof is paid. Such cash interest on the Notes shall accrue from the
most recent date to which interest has been paid or duly provided for or, if no
such cash interest has been paid or duly provided for, from September 20, 2000
until the principal hereof is due. Any principal of, or premium or installment
of interest or Special Interest (as hereinafter defined) on this Note which is
overdue shall bear interest at the rate equal to 2% per annum above the interest
rate specified on the face of this Note from the date such amounts are due until
they are paid (to the extent that the payment of such interest shall be legally
enforceable), and such excess interest shall be payable on demand. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
(b) SPECIAL INTEREST. The holder of this Note is entitled to the
benefits of the Exchange and Registration Rights Agreement, dated as of
September 20, 2000, by and among the Company, the Guarantors and the Purchasers
named therein. Capitalized terms used in this paragraph (b) but not defined
herein have the meanings assigned to them in the Exchange and Registration
Rights Agreement. If (i) the Shelf Registration Statement or Exchange Offer
Registration Statement, as applicable, under the Exchange and Registration
Rights Agreement, is not filed with the Commission on or prior to 90 days after
the Trigger Date, (ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is not declared effective on or
prior to 150 days after the Trigger Date, (iii) the Registered Exchange Offer is
not consummated on or prior to 180 days after the Trigger Date, or (iv) the
Shelf Registration Statement is filed and declared effective on or prior to 150
days after the Trigger Date but shall thereafter cease to be effective (at any
time that the Company and the Guarantors are obligated to maintain the
effectiveness thereof) without being succeeded within 45 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company and the
Guarantors will be jointly and severally obligated to pay Special Interest to
each holder of Transfer Restricted Notes, during the period of one or more such
Registration Defaults, in an amount equal to 0.5% per annum, which amount shall
increase to 1.0% per annum after the first 120-day period following the
occurrence of the first Registration Default, for the period from and including
the date of occurrence of the first Registration Default until such time as no
Registration Default is in effect (such amount equal to the "SPECIAL Interest")
(after which such Special Interest shall cease to be payable). The Trustee shall
have no responsibility with respect to the determination of the amount of any
such Special Interest.
Page 5
(c) RECORD DATES, ETC. Upon the issuance of an Exchange Note in
exchange for this Note, any accrued and unpaid interest (including Special
Interest) on this Note shall cease to be payable to the Holder hereof but such
accrued and unpaid interest (including Special Interest) shall be payable on the
next Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Agreement, be paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date (the "REGULAR RECORD DATE") for
such interest which shall be the fifteenth calendar day (whether or not a
Business Day) of the calendar month in which such Interest Payment Date occurs.
Notwithstanding the foregoing, if this Note is issued after a Regular Record
Date and prior to an Interest Payment Date, the record date for such Interest
Payment Date shall be the original issue date.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered holders of Notes at the close of
business on the March 15 or September 15 next preceding the Interest Payment
Date even if Notes are canceled after the record date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal, Special Interest, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. The Company
will make all payments in respect of a certificated Note (including principal
and interest), by mailing a check to the registered address of each Holder
thereof; PROVIDED, HOWEVER, that payments on the Notes may also be made, in the
case of a Holder of at least $1,000,000 aggregate principal amount at maturity
of Notes, 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 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. PAYING AGENT AND REGISTRAR
The Company shall maintain an office or agency, which shall be
located in the Borough of Manhattan, The City of New York, where Notes may be
presented for registration of transfer or for exchange (the "REGISTRAR") and an
office or agency where Notes may be presented for payment (the "PAYING AGENT").
Initially, Chase Manhattan Bank and Trust Company, National Association, a
national banking association organized under the federal laws of the United
States (the "TRUSTEE"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
Page 6
4. INDENTURE
The Company issued the Notes under an Indenture, dated as of
September 20, 2000 (the "INDENTURE"), by and among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. sections 77aaa-77bbbb) as in effect on the date of the Indenture
(the "TIA"). Terms defined in the Indenture and used but not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
terms and provisions of the Indenture, and Holders (as defined in the Indenture)
are referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Notes are senior subordinated unsecured obligations of the
Company limited to $20,000,000 aggregate principal amount at any one time
outstanding (subject to SECTION 2.07 of the Indenture). This Note is one of the
Initial Notes referred to in the Indenture issued in an aggregate original
principal amount of $20,000,000. The Notes include the Initial Notes and any
Exchange Notes issued in exchange for Initial Notes. The Initial Notes and the
Exchange Notes are treated as a single class of Notes under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Subsidiaries, issue or sell shares of Capital Stock of
such Subsidiaries, enter into or permit certain transactions with Affiliates and
make asset sales. The Indenture also imposes limitations on the ability of the
Company to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Company.
To guarantee the due and punctual payment of the principal of and
interest on the Notes and all other amounts payable by the Company under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors have jointly and severally unconditionally
guaranteed the Guaranteed Obligations on an unsecured senior subordinated basis
pursuant to the terms of the Indenture.
5. OPTIONAL REDEMPTION
The Notes are subject to redemption, at the election of the Company,
upon not less than ten (10) nor more than sixty (60) days' notice by mail (each
prepayment must relate to an aggregate principal amount of Notes of at least $5
million):
(i) At any time prior to the second anniversary of the Closing
Date, up to 35% of the aggregate principal amount of the Notes and the
Holdings Notes may be prepaid from the proceeds of an Equity Offering of
Common Stock of Holdings at a price of 110% of the principal amount
thereof plus accrued interest; provided that, so long as the Purchasers
and their Affiliates own a majority of the principal amount of the Notes
outstanding, any such proceeds shall be applied first to the prepayment of
the Holdings Notes, and if no Holdings Notes are then outstanding to the
prepayment of the Notes;
Page 7
provided further that, after giving effect to any such prepayment, at
least 65% of the original principal amount of the Notes issued on the
Closing Date remains outstanding. Each payment must relate to an aggregate
principal amount of Notes of at least $5 million;
(ii) at any time on or after the second anniversary of the
Closing Date and prior to the third anniversary of the Closing Date, the
entire aggregate principal amount of the Notes then outstanding may be
prepaid concurrently with the consummation of an Equity Offering of Common
Stock of Holdings or a Change of Control at a price of 110% of the
principal amount plus accrued interest; provided that, so long as the
Purchasers and their Affiliates own a majority of the principal amount of
the Notes outstanding, any such proceeds shall be applied first to the
prepayment of the Holdings Notes, and if no Holdings Notes are then
outstanding to the prepayment of the Notes.
(iii) prepayment of the notes will be permitted in whole or in
part, at any time on or after the third anniversary of the Closing Date at
the following Redemption Prices at the prices listed below (expressed as a
percentage of the principal amount of the Notes being prepaid as of the
Redemption Date) plus accrued interest to the date of prepayment; provided
that, so long as the Purchasers and their Affiliates own a majority of the
principal amount of the Notes outstanding, any such proceeds shall be
applied first to the prepayment of the Holdings Notes, and if no Holdings
Notes are then outstanding to the prepayment of the Notes:
Redemption Date Redemption Price
September 20, 2003 - September 19, 2006 106.75%
September 20, 2006 - September 19, 2007 105.40%
September 20, 2007 - September 19, 2008 104.05%
September 20, 2008 - September 19, 2009 102.70%
September 20, 2009 and thereafter 101.35%
6. SINKING FUND
The Notes are not subject to any sinking fund.
Page 8
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 10
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 (in principal amount at maturity) may be redeemed in part but
only in multiples of $1,000 (in principal amount at maturity). If money
sufficient to pay the redemption price of and accrued and unpaid interest and
Special Interest, if any, on all Notes (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent on or before the
Redemption Date and certain other conditions are satisfied, on and after such
date, cash interest and Special Interest, if any, ceases to accrue on such Notes
(or such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
SALE OF ASSETS
Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right, subject to certain conditions specified in the Indenture,
to require the Company to repurchase all or any part of the Notes of such Holder
at a purchase price in cash equal to 101% of the principal amount of the Notes
to be repurchased, plus accrued and unpaid interest thereon and Special
Interest, if any, in respect thereof to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
and Special Interest, if any, on the relevant Interest Payment Date) as provided
in, and subject to the terms of, the Indenture.
In accordance with SECTION 4.10 of the Indenture, the Company will
be required to offer to purchase Notes upon the occurrence of certain sales of
assets.
9. SUBORDINATION
The Notes are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Notes may be paid. Each of the Company and the Guarantor agrees,
and each Holder by accepting a Note agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 (in principal amount at maturity) and multiples thereof. A Holder may
transfer or exchange Initial Notes in accordance with the Indenture. Upon any
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture. The Company shall
not be required to make and the Registrar need not register transfers or
exchanges of Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or any Notes for a
period of 15 days prior to a selection of Notes to be redeemed.
Page 9
11. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of
this Note shall be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal of or interest on the Notes
has been deposited with the Trustee or Paying Agent and remains unclaimed for
two years after such amount is due and payable, the Trustee or Paying Agent
shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the
Trustee and the Paying Agent shall have no further liability for such funds and
Holders entitled to the money must look only to the recipient and not to the
Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Notes to redemption or maturity, as the case
may be.
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Notes may be amended without prior notice to any Holder but
with the written consent of the Holders of at least a majority in principal
amount at maturity of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange for the Notes) and (b) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount at maturity of the outstanding Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder of
Notes, the Company, the Guarantors and the Trustee may amend the Indenture or
the Notes (a) to cure any ambiguity, omission, defect or inconsistency; (b) to
provide for uncertificated Notes in addition to or in place of certificated
Notes (PROVIDED, HOWEVER, that the uncertificated Notes are issued in registered
form for purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code); (c) to
make any change in Article 11 or SECTION 12.05 of the Indenture that would limit
or terminate the benefits available to any holder of Senior Indebtedness (or any
Representative thereof) under Article 11 or SECTION 12.05 of the Indenture; (d)
to add additional Guarantees with respect to the Notes; (e) to secure the Notes;
(f) to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred on the Company in the Indenture; (g) to
comply with any requirement of the Commission in connection with qualifying, or
maintaining the qualification of, the Indenture under the TIA; (h) to make any
change that does not adversely affect the rights of any Holder; (i) to provide
for the issuance of the Exchange Notes which shall have terms substantially
identical in all material respects to the Initial Notes (except that the
transfer restrictions contained in the Initial Notes shall be modified or
eliminated, as appropriate), and which shall be treated,
Page 10
together with any outstanding Initial Notes, as a single issue of securities; or
(j) to change the name or title of the Notes.
15. DEFAULTS, REMEDIES AND ACCELERATION
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of (i) until a Note
Registration, more than 50% in principal amount of the Notes at the time
outstanding, and (ii) thereafter, 25% or more in principal amount at maturity of
the outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization
of Holdings or the Company occurs, the principal of and interest on all the
Notes shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount at maturity of the
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
Subject to the provisions of the Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Notes unless (i) such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing, (ii)
Holders of at least 25% in principal amount at maturity of the outstanding Notes
have requested the Trustee in writing to pursue the remedy, (iii) such Holder or
Holders have offered to the Trustee reasonable security or indemnity against any
loss, liability or expense, (iv) the Trustee has not complied with such request
within 60 days after receipt of the request and the offer of security or
indemnity and (v) the Holders of a majority in principal amount at maturity of
the outstanding Notes have not given the Trustee a direction inconsistent with
such request during such 60-day period. Subject to certain restrictions, the
Holders of a majority in principal amount at maturity of the outstanding Notes
are given the right to 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. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or, subject to certain
exceptions in the Indenture, that the Trustee determines is unduly prejudicial
to the rights of other Holders or would involve the Trustee in personal
liability. Prior to taking any action under the Indenture, 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.
Page 11
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes 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.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company or any of the Guarantors shall not have any liability for any
obligations of the Company or any of the Guarantors under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. REGISTRATION RIGHTS
Pursuant to the Exchange and Registration Rights Agreement, the
Company will be obligated upon the occurrence of certain events to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for an Exchange Note which has been registered under the
Securities Act, in like original principal amount and having terms identical in
all material respects to this Note, other than there shall be no provision for
Special Interest.
Page 12
THE COMPANY WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
Page 13
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note 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 Note
on the books of the Company. The agent may substitute another to act for him.
Date: ________________ Your Signature: _____________________
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Page 14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED NOTES
This certificate relates to $_________ principal amount at maturity of Notes
held in definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
[ ] (1) to the Company; or
[ ] (2) to the Registrar for registration in the name of the Holder,
without transfer; or
[ ] (3) pursuant to an effective registration statement under the
Securities Act of 1933; or
[ ] (4) inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
[ ] (5) outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
[ ] (6) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933)
that has furnished to the Trustee a signed letter containing
certain representations and agreements; or
[ ] (7) pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Page 15
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any Person
other than the registered holder thereof; PROVIDED, HOWEVER, that if box
(5), (6) or (7) is checked, the Trustee may require, prior to registering
any such transfer of the Notes, such legal opinions, certifications and
other information as the Company has reasonably requested 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 of 1933.
--------------------------
Your Signature
Signature Guarantee:
Date: ___________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
---------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note 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, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
Page 16
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY PURSUANT
TO SECTION 4.09 (CHANGE OF CONTROL) OR SECTION 4.10 (APPLICATION OF EXCESS
PROCEEDS FROM SALE OF ASSETS) OF THE INDENTURE, CHECK THE BOX:
[ ]
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK CHANGE OF CONTROL
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.09 OR 4.10 OF THE INDENTURE, STATE THE PRINCIPAL
AMOUNT AT MATURITY ($1,000 OR A MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR
OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
Page 17
EXHIBIT B
FORM OF FACE OF EXCHANGE NOTE
[Global Notes Legend]
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
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 EXCHANGE NOTE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL EXCHANGE
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
This debt instrument has been issued with original issue discount.
The following information is provided pursuant to Treas. Reg. Section 1.1275-3:
Issue Price: $870.00
Issue Date: September 20, 2000
Amount of Original Issue Discount: $130 per $1,000 of face amount
Yield to Maturity: 16.16%
Page 18
No. $__________
13.5% Senior Subordinated Note due 2010
[CUSIP No. ______]
VICAR OPERATING, INC., a Delaware corporation, promises to pay
to ________________, or registered assigns, the principal amount at maturity
[of ] Dollars on September 20, 2010 (the "STATED MATURITY DATE").
Interest Payment Dates: March 31 and September 30.
Record Dates: March 15 and September 15.
Page 19
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
VICAR OPERATING, INC.
By:
-------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Chase Manhattan Bank and Trust Company, National Association, Trustee, certifies
that this is one of the Notes referred to in the Indenture.
By:
-------------------------------------
Authorized Signatory
*/ If the Note is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL EXCHANGE NOTES
- SCHEDULE OF INCREASES OR DECREASES IN GLOBAL EXCHANGE NOTE".
Page 20
FORM OF REVERSE SIDE OF EXCHANGE NOTE
13.5% Senior Subordinated Note due 2010
1. INTEREST
VICAR OPERATING, 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 cash interest thereon from the
date hereof, semi-annually in arrears on September 30 and March 31 of each year
commencing March 31, 2001 and, if different, on the Stated Maturity Date (each,
an "Interest Payment Date") at the rate of 13.5% per annum, until the principal
hereof is paid. Such cash interest on the Notes shall accrue from the most
recent date to which interest has been paid or duly provided for or, if no such
cash interest has been paid or duly provided for, from September 20, 2000 until
the principal hereof is due. Any principal of, or premium or installment of
interest on this Note which is overdue shall bear interest at the rate equal to
2% per annum above the interest rate specified on the face of this Note from the
date such amounts are due until they are paid (to the extent that the payment of
such interest shall be legally enforceable), and such excess interest shall be
payable on demand. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Agreement,
be paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date. "REGULAR RECORD DATE" for such interest
shall be the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date. Notwithstanding the foregoing, if this
Note is issued after a Regular Record Date and prior to an Interest Payment
Date, the record date for such Interest Payment Date shall be the original issue
date.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered holders of Notes at the close of
business on the March 15 or September 15 next preceding the Interest Payment
Date even if Notes are canceled after the record date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. The Company will make all payments in respect of a
certificated Note (including principal and interest), by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments on
the Notes may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount at maturity of Notes, 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 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
Page 21
3. PAYING AGENT AND REGISTRAR
The Company shall maintain an office or agency, which shall be
located in the Borough of Manhattan, The City of New York, where Notes may be
presented for registration of transfer or for exchange (the "REGISTRAR") and an
office or agency where Notes may be presented for payment (the "PAYING AGENT").
Initially, Chase Manhattan Bank and Trust Company, National Association, a
national banking association organized under the federal laws of the United
States (the "TRUSTEE"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Notes under an Indenture, dated as of
September 20, 2000 (the "INDENTURE"), by and among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. sections 77aaa-77bbbb) as in effect on the date Of the Indenture
(the "TIA"). Terms defined in the Indenture and used but not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
terms and provisions of the Indenture, and Holders (as defined in the Indenture)
are referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Notes are senior subordinated unsecured obligations of the
Company limited to $20,000,000 aggregate principal amount at any one time
outstanding (subject to SECTION 2.07 of the Indenture). This Note is one of the
Exchange Notes referred to in the Indenture issued in an aggregate original
principal amount of $20,000,000. The Notes include the Initial Notes and any
Exchange Notes issued in exchange for Initial Notes. The Initial Notes and the
Exchange Notes are treated as a single class of Notes under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Subsidiaries, issue or sell shares of Capital Stock of
such Subsidiaries, enter into or permit certain transactions with Affiliates and
make asset sales. The Indenture also imposes limitations on the ability of the
Company to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Company.
To guarantee the due and punctual payment of the principal of and
interest on the Notes and all other amounts payable by the Company under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors have jointly and severally unconditionally
guaranteed the Guaranteed Obligations on an unsecured senior subordinated basis
pursuant to the terms of the Indenture.
Page 22
5. OPTIONAL REDEMPTION
The Notes are subject to redemption, at the election of the Company,
upon not less than ten (10) nor more than sixty (60) days' notice by mail (each
prepayment must relate to an aggregate principal amount of Notes of at least $5
million):
(i) At any time prior to the second anniversary of the Closing
Date, up to 35% of the aggregate principal amount of the Notes and the
Holdings Notes may be prepaid from the proceeds of an Equity Offering of
Common Stock of Holdings at a price of 110% of the principal amount
thereof plus accrued interest; provided that, so long as the Purchasers
and their Affiliates own a majority of the principal amount of the Notes
outstanding, any such proceeds shall be applied first to the prepayment of
the Holdings Notes, and if no Holdings Notes are then outstanding to the
prepayment of the Notes; provided further that, after giving effect to any
such prepayment, at least 65% of the original principal amount of the
Notes issued on the Closing Date remains outstanding. Each payment must
relate to an aggregate principal amount of Notes of at least $5 million;
(ii) at any time on or after the second anniversary of the
Closing Date and prior to the third anniversary of the Closing Date, the
entire aggregate principal amount of the Notes then outstanding may be
prepaid concurrently with the consummation of an Equity Offering of Common
Stock of Holdings or a Change of Control at a price of 110% of the
principal amount plus accrued interest; provided that, so long as the
Purchasers and their Affiliates own a majority of the principal amount of
the Notes outstanding, any such proceeds shall be applied first to the
prepayment of the Holdings Notes, and if no Holdings Notes are then
outstanding to the prepayment of the Notes
(iii) prepayment of the notes will be permitted in whole or in
part, at any time on or after the third anniversary of the Closing Date at
the following Redemption Prices at the prices listed below (expressed as a
percentage of the principal amount of the Notes being prepaid as of the
Redemption Date) plus accrued interest to the date of prepayment; provided
that, so long as the Purchasers and their Affiliates own a majority of the
principal amount of the Notes outstanding, any such proceeds shall be
applied first to the prepayment of the Holdings Notes, and if no Holdings
Notes are then outstanding to the prepayment of the Notes:
Redemption Date Redemption Price
September 20, 2003 - September 19, 2006 106.75%
September 20, 2006 - September 19, 2007 105.40%
September 20, 2007 - September 19, 2008 104.05%
September 20, 2008 - September 19, 2009 102.70%
September 20, 2009 and thereafter 101.35%
Page 23
6. SINKING FUND
The Notes are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 10
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 (in principal amount at maturity) may be redeemed in part but
only in multiples of $1,000 (in principal amount at maturity). If money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Notes (or portions thereof) to be redeemed on the Redemption Date is deposited
with the Paying Agent on or before the Redemption Date and certain other
conditions are satisfied, on and after such date, cash interest ceases to accrue
on such Notes (or such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
SALE OF ASSETS
Upon the occurrence of a Change of Control, each Holder of Notes shall have the
right, subject to certain conditions specified in the Indenture, to require the
Company to repurchase all or any part of the Notes of such Holder at a purchase
price in cash equal to 101% of the principal amount of the Notes to be
repurchased, plus accrued and unpaid interest thereon and Special Interest, if
any, in respect thereof to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due and
Special Interest, if any, on the relevant Interest Payment Date) as provided in,
and subject to the terms of, the Indenture.
In accordance with SECTION 4.10 of the Indenture, the Company will
be required to offer to purchase Notes upon the occurrence of certain sales of
assets.
9. SUBORDINATION
The Notes are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Notes may be paid. Each of the Company and the Guarantor agrees,
and each Holder by accepting a Note agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 (in principal amount at maturity) and multiples thereof. A Holder may
transfer or exchange Initial Notes in accordance with the Indenture. Upon any
transfer or exchange, the Registrar and the
Page 24
Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Notes selected for
redemption (except, in the case of a Note to be redeemed in part, the portion of
the Note not to be redeemed) or any Notes for a period of 15 days prior to a
selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of
this Note shall be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal of or interest on the Notes
has been deposited with the Trustee or Paying Agent and remains unclaimed for
two years after such amount is due and payable, the Trustee or Paying Agent
shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the
Trustee and the Paying Agent shall have no further liability for such funds and
Holders entitled to the money must look only to the recipient and not to the
Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Notes to redemption or maturity, as the case
may be.
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Notes may be amended without prior notice to any Holder but
with the written consent of the Holders of at least a majority in principal
amount at maturity of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange for the Notes) and (b) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount at maturity of the outstanding Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder of
Notes, the Company, the Guarantors and the Trustee may amend the Indenture or
the Notes (a) to cure any ambiguity, omission, defect or inconsistency; (b) to
provide for uncertificated Notes in addition to or in place of certificated
Notes (PROVIDED, HOWEVER, that the uncertificated Notes are issued in registered
form for purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code); (c) to
make any change in Article 11 or SECTION 12.05 of the Indenture that would limit
or terminate the benefits available to any holder of Senior Indebtedness (or any
Representative thereof) under Article 11 or SECTION 12.05 of the Indenture;
Page 25
(d) to add additional Guarantees with respect to the Notes; (e) to secure the
Notes; (f) to add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power conferred on the Company in the Indenture;
(g) to comply with any requirement of the Commission in connection with
qualifying, or maintaining the qualification of, the Indenture under the TIA;
(h) to make any change that does not adversely affect the rights of any Holder;
(i) to provide for the issuance of the Exchange Notes which shall have terms
substantially identical in all material respects to the Initial Notes (except
that the transfer restrictions contained in the Initial Notes shall be modified
or eliminated, as appropriate), and which shall be treated, together with any
outstanding Initial Notes, as a single issue of securities; or (j) to change the
name or title of the Notes.
15. DEFAULTS, REMEDIES AND ACCELERATION
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of (i) until a Note
Registration, more than 50% in principal amount of the Notes at the time
outstanding, and (ii) thereafter, 25% or more in principal amount at maturity of
the outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization
of Holdings or the Company occurs, the principal of and interest on all the
Notes shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount at maturity of the
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
Subject to the provisions of the Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Notes unless (i) such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing, (ii)
Holders of at least 25% in principal amount at maturity of the outstanding Notes
have requested the Trustee in writing to pursue the remedy, (iii) such Holder or
Holders have offered to the Trustee reasonable security or indemnity against any
loss, liability or expense, (iv) the Trustee has not complied with such request
within 60 days after receipt of the request and the offer of security or
indemnity and (v) the Holders of a majority in principal amount at maturity of
the outstanding Notes have not given the Trustee a direction inconsistent with
such request during such 60-day period. Subject to certain restrictions, the
Holders of a majority in principal amount at maturity of the outstanding Notes
are given the right to 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. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or, subject to certain
exceptions in the Indenture, that the Trustee determines is unduly prejudicial
to the rights of other Holders or
Page 26
would involve the Trustee in personal liability. Prior to taking any action
under the Indenture, 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.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes 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.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company or any of the Guarantors shall not have any liability for any
obligations of the Company or any of the Guarantors under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP NUMBERS
The Company has caused CUSIP numbers to be printed on the Notes and
has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as
Page 27
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
Page 28
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note 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 Note
on the books of the Company. The agent may substitute another to act for him.
------------------------------------------------------------
Date: ________________ Your Signature: _____________________
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Page 29
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY PURSUANT
TO SECTION 4.09 (CHANGE OF CONTROL) OR SECTION 4.10 (APPLICATION OF EXCESS
PROCEEDS FROM SALE OF ASSETS) OF THE INDENTURE, CHECK THE BOX:
[ ]
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK CHANGE OF CONTROL
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.09 OR 4.10 OF THE INDENTURE, STATE THE PRINCIPAL
AMOUNT AT MATURITY ($1,000 OR A MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE NOTE)
SIGNATURE GUARANTEE:________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR
OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
Page 30
EXHIBIT C
FORM OF SUPPLEMENTAL GUARANTEE
SUPPLEMENTAL GUARANTEE (this "SUPPLEMENTAL GUARANTEE"), dated as of
_______________, between ____________________ (the "GUARANTOR"), a direct or
indirect subsidiary of Vicar Recap, Inc. (or its successor), a Delaware
corporation (the "COMPANY"), and ______________, as trustee (the "TRUSTEE")
W I T N E S S E T H
WHEREAS, the Company and the Subsidiaries listed on the signature
pages thereof have each heretofore executed and delivered to the Trustee an
Indenture (the "INDENTURE"), dated as of September ___, 2000, providing for the
issuance by the Company of an aggregate principal amount of $20,000,000 of
13.50% Senior Subordinated Notes Due 2010 (the "NOTES"); and
WHEREAS, SECTION 12.02 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee for the benefit of the Holders a supplemental agreement
pursuant to which the Guarantor shall unconditionally guarantee all of the
Company's obligations under the Notes pursuant to a Guarantee on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor covenants and agrees for the equal and ratable benefit of the Holders
of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE; EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT. The Guarantor hereby agrees, jointly and severally with all other
Guarantors, to unconditionally guarantee the Company's obligations under the
Notes on the terms and subject to the conditions set forth in ARTICLE 12 of the
Indenture and to be bound by all other applicable provisions of the Indenture.
The Guarantor further agrees to become a party to the Exchange and Registration
Rights Agreement and to be bound by all provisions thereof.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, any
Guarantee, the Indenture or this Supplemental Guarantee or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Page C-1
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Securities and Exchange Commission
that such a waiver is against public policy.
4. EFFECTIVENESS. This Supplemental Guarantee shall be
effective upon execution by the parties hereto.
5. RECITALS. The recitals contained herein shall be taken as
the statements of the Company and the Guarantors assume no responsibility for
their correctness.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL AGREEMENT.
7. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Guarantee. Each signed copy shall be an original, but all
of them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[Guarantor]
By: _________________________
Name:
Title:
Page C-2
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
The undersigned have guaranteed this Note on a subordinated basis as
provided in the Indenture.
Page 3
VICAR OPERATING, INC.
Senior Subordinated Notes due 2010
INDENTURE
Dated as of September 20, 2000
Chase Manhattan Bank and Trust Company, National Association,
Trustee
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS.................................1
SECTION 1.01. DEFINITIONS..................................................1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...........22
SECTION 1.03. RULES OF CONSTRUCTION.......................................22
ARTICLE 2. THE NOTES.......................................................23
SECTION 2.01. FORM AND DATING.............................................23
SECTION 2.02. EXECUTION AND AUTHENTICATION................................23
SECTION 2.03. REGISTRAR AND PAYING AGENT..................................24
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.........................24
SECTION 2.05. HOLDER LISTS................................................25
SECTION 2.06. TRANSFER AND EXCHANGE.......................................25
SECTION 2.07. REPLACEMENT NOTES...........................................26
SECTION 2.08. OUTSTANDING NOTES...........................................26
SECTION 2.09. TEMPORARY NOTES.............................................27
SECTION 2.10. CANCELLATION................................................27
SECTION 2.11. DEFAULTED INTEREST..........................................27
SECTION 2.12. CUSIP NUMBERS...............................................27
ARTICLE 3. REDEMPTION......................................................27
SECTION 3.01. NOTICES TO TRUSTEE..........................................27
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED...........................28
SECTION 3.03. NOTICE OF REDEMPTION........................................28
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION..............................29
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.................................29
SECTION 3.06. NOTES REDEEMED IN PART......................................29
ARTICLE 4. AFFIRMATIVE COVENANTS...........................................30
SECTION 4.01. PAYMENT OF NOTES............................................30
SECTION 4.02. COMMISSION REPORTS..........................................30
SECTION 4.03. PRESERVATION OF CORPORATE EXISTENCE.........................30
SECTION 4.04. MAINTENANCE OF PROPERTIES...................................31
SECTION 4.05. TAXES.......................................................31
SECTION 4.06. COMPLIANCE CERTIFICATE......................................31
SECTION 4.07. COMPLIANCE WITH LAW.........................................32
SECTION 4.08. INSURANCE...................................................32
SECTION 4.09. OFFER TO REPURCHASE UPON CHANGE OF CONTROL..................32
SECTION 4.10. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.........33
SECTION 4.11. POST-CLOSING GUARANTEES.....................................34
SECTION 4.12. FURTHER ASSURANCES..........................................34
ARTICLE 5. NEGATIVE COVENANTS OF THE COMPANY...............................35
SECTION 5.01. STAY, EXTENSION AND USURY LAWS..............................35
SECTION 5.02. RESTRICTED PAYMENTS.........................................35
SECTION 5.03. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES..............................................39
SECTION 5.04. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
CAPITAL STOCK OR PREFERRED STOCK..........................40
SECTION 5.05. ASSET DISPOSITIONS..........................................44
SECTION 5.06. TRANSACTIONS WITH AFFILIATES................................45
SECTION 5.07. LIMITATION ON LIENS.........................................47
SECTION 5.08. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF
SUBSIDIARIES..............................................47
SECTION 5.09. SALES AND LEASEBACK TRANSACTIONS............................47
SECTION 5.10. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED DEBT.......48
SECTION 5.11. CONDUCT OF BUSINESS.........................................48
ARTICLE 6. MERGER, CONSOLIDATION, SALE OF ASSETS, ETC......................48
SECTION 6.01. WHEN COMPANY CAN MERGE, CONSOLIDATE, SELL ASSETS, ETC.......48
ARTICLE 7. EVENTS OF DEFAULT; REMEDIES.....................................49
SECTION 7.01. EVENTS OF DEFAULT...........................................49
SECTION 7.02. ACCELERATION................................................51
SECTION 7.03. OTHER REMEDIES..............................................52
SECTION 7.04. WAIVER OF PAST DEFAULTS.....................................52
SECTION 7.05. CONTROL BY MAJORITY.........................................52
SECTION 7.06. LIMITATION ON SUITS.........................................52
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT........................53
SECTION 7.08. COLLECTION SUIT BY TRUSTEE..................................53
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM............................53
SECTION 7.10. PRIORITIES..................................................53
SECTION 7.11. UNDERTAKING FOR COSTS.......................................54
ARTICLE 8. TRUSTEE.........................................................54
SECTION 8.01. DUTIES OF TRUSTEE...........................................54
SECTION 8.02. RIGHTS OF TRUSTEE...........................................55
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE................................56
SECTION 8.04. TRUSTEE'S DISCLAIMER........................................56
SECTION 8.05. NOTICE OF DEFAULTS..........................................56
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS...............................57
SECTION 8.07. COMPENSATION AND INDEMNITY..................................57
SECTION 8.08. REPLACEMENT OF TRUSTEE......................................58
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER.................................59
SECTION 8.10. ELIGIBILITY; DISQUALIFICATION...............................59
SECTION 8.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.......59
ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE..............................60
SECTION 9.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE.................60
SECTION 9.02. CONDITIONS TO DEFEASANCE....................................61
SECTION 9.03. APPLICATION OF TRUST MONEY..................................62
SECTION 9.04. REPAYMENT TO COMPANY........................................62
SECTION 9.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS........................62
SECTION 9.06. REINSTATEMENT...............................................62
ARTICLE 10. AMENDMENTS.....................................................63
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.................................63
SECTION 10.02. WITH CONSENT OF HOLDERS....................................64
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT........................65
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS..............65
SECTION 10.05. NOTATION ON OR EXCHANGE OF NOTES...........................65
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS.................................66
ARTICLE 11. SUBORDINATION OF NOTES.........................................66
SECTION 11.01. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS...................66
SECTION 11.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.............66
SECTION 11.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.............68
SECTION 11.04. PAYMENT PERMITTED IF NO DEFAULT............................69
SECTION 11.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS....69
SECTION 11.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................69
SECTION 11.07. NO WAIVER OF SUBORDINATION PROVISIONS......................70
SECTION 11.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.........................................70
SECTION 11.09. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS..................................71
SECTION 11.10. TRUST MONIES NOT SUBORDINATED..............................71
SECTION 11.11. TRUSTEE TO EFFECTUATE SUBORDINATION........................71
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS...71
SECTION 11.13. THIRD PARTY BENEFICIARY; NO AMENDMENT......................71
SECTION 11.14. TRUSTEE'S COMPENSATION NOT PREJUDICED......................71
SECTION 12. GUARANTEES.....................................................71
SECTION 12.01. GUARANTEES.................................................71
SECTION 12.02. EXECUTION AND DELIVERY OF THIS INDENTURE AND SUPPLEMENTAL
GUARANTEES................................................72
SECTION 12.03. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS..........73
SECTION 12.04. RELEASES OF GUARANTEES.....................................74
SECTION 12.05. SUBORDINATION OF GUARANTEES................................74
SECTION 12.06. LIMITATION ON GUARANTOR LIABILITY..........................74
SECTION 12.07. ENDORSEMENT OF GUARANTEES..................................75
ARTICLE 13. MISCELLANEOUS..................................................75
SECTION 13.01. TRUST INDENTURE ACT CONTROLS...............................75
SECTION 13.02. NOTICES....................................................75
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS................76
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.........76
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..............77
SECTION 13.06. WHEN NOTES DISREGARDED.....................................77
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR...............77
SECTION 13.08. LEGAL HOLIDAYS.............................................77
SECTION 13.09. GOVERNING LAW..............................................77
SECTION 13.10. NO RECOURSE AGAINST OTHERS.................................78
SECTION 13.11. SUCCESSORS.................................................78
SECTION 13.12. MULTIPLE ORIGINALS; COUNTERPARTS...........................78
SECTION 13.13. TABLE OF CONTENTS; HEADINGS................................78
SECTION 13.14. INCORPORATION..............................................78
SECTION 13.15. INTENT TO LIMIT INTEREST TO MAXIMUM........................78
Appendix A. Provisions Relating to the Initial Notes and the Exchange Notes
EXHIBITS:
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
Exhibit C - Form of Supplemental Guarantee
Exhibit D - Form of Notation of Guarantee
SCHEDULES:
Schedule 5.06 - Affiliate Transactions