Exhibit (a)(8)
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INDENTURE
Dated as of February 25, 1998
Among
UNIVERSAL HOSPITAL SERVICES, INC., as Issuer,
and
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
__________________
up to $180,000,000
10 1/4% Senior Notes due 2008, Series A
10 1/4% Senior Notes due 2008, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . 7.08; 7.10
(b) . . . . . . . . . . . . . . . . . 7.08; 7.10; 11.02
(c) . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . 4.06; 4.08; 11.02
(b) . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . 11.01
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of TIA . . . . . . . . . . . 28
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . . 28
ARTICLE TWO THE NOTES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.02. Execution and Authentication; Aggregate
Principal Amount . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . 31
SECTION 2.04. Paying Agent To Hold Assets in Trust . . . . . . . . . . 32
SECTION 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . 33
SECTION 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . 34
SECTION 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . 34
SECTION 2.09. Treasury Notes . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . 36
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.14. Deposit of Moneys . . . . . . . . . . . . . . . . . . . 37
SECTION 2.15. Book-Entry Provisions for Global Notes . . . . . . . . . 38
SECTION 2.16. Special Transfer Provisions . . . . . . . . . . . . . . 39
SECTION 2.17. Restrictive Legends . . . . . . . . . . . . . . . . . . 43
ARTICLE THREE REDEMPTION
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . 43
SECTION 3.02. Selection of Notes To Be Redeemed . . . . . . . . . . . 44
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . 44
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . 45
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . 46
SECTION 3.06. Notes Redeemed in Part . . . . . . . . . . . . . . . . . 46
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Notes . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.02. Maintenance of Office or Agency . . . . . . . . . . . . 47
SECTION 4.03. Corporate Existence . . . . . . . . . . . . . . . . . . 47
SECTION 4.04. Payment of Taxes and Other Claims . . . . . . . . . . . 47
SECTION 4.05. Maintenance of Properties and Insurance . . . . . . . . 48
SECTION 4.06. Compliance Certificate; Notice of Default . . . . . . . 48
SECTION 4.07. Compliance with Laws . . . . . . . . . . . . . . . . . . 49
SECTION 4.08. Reports to Holders . . . . . . . . . . . . . . . . . . . 50
SECTION 4.09. Waiver of Stay, Extension or Usury Laws . . . . . . . . 50
SECTION 4.10. Limitation on Restricted Payments . . . . . . . . . . . 51
SECTION 4.11. Limitations on Transactions with Affiliates . . . . . . 53
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.14. Change of Control . . . . . . . . . . . . . . . . . . . 57
SECTION 4.15. Limitation on Asset Sales . . . . . . . . . . . . . . . 59
SECTION 4.16. Limitation on Liens . . . . . . . . . . . . . . . . . . 63
SECTION 4.17. Conduct of Business . . . . . . . . . . . . . . . . . . 64
SECTION 4.18. Limitation on Preferred Stock of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 4.19. Limitation of Guarantees by Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE FIVE SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets . . . . . . . . 65
SECTION 5.02. Successor Corporation Substituted . . . . . . . . . . . 66
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . 67
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . 70
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . 70
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . 71
SECTION 6.07. Rights of Holders To Receive Payment . . . . . . . . . . 71
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . 71
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . 72
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . 73
ARTICLE SEVEN TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . 73
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . 75
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . 76
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 76
SECTION 7.05. Notice of Default . . . . . . . . . . . . . . . . . . . 77
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . 77
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . 78
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . 79
SECTION 7.09. Successor Trustee by Merger, Etc . . . . . . . . . . . . 80
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . 80
SECTION 7.11. Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations . . . . . . . . 81
SECTION 8.02. Legal Defeasance and Covenant Defeasance . . . . . . . . 82
SECTION 8.03. Conditions to Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.04. Application of Trust Money . . . . . . . . . . . . . . . 86
SECTION 8.05. Repayment to the Company . . . . . . . . . . . . . . . . 86
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . 87
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . 88
SECTION 9.03. Compliance with TIA . . . . . . . . . . . . . . . . . . 89
SECTION 9.04. Revocation and Effect of Consents . . . . . . . . . . . 89
SECTION 9.05. Notation on or Exchange of Notes . . . . . . . . . . . . 90
SECTION 9.06. Trustee To Sign Amendments, Etc . . . . . . . . . . . . 90
ARTICLE TEN GUARANTEE
SECTION 10.01. Unconditional Guarantee . . . . . . . . . . . . . . . . 91
SECTION 10.02. Release of a Guarantor . . . . . . . . . . . . . . . . . 92
SECTION 10.03. Limitation of a Guarantor's Liability . . . . . . . . . 92
SECTION 10.04. Guarantors May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.05. Contribution . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 10.06. Waiver of Subrogation . . . . . . . . . . . . . . . . . 95
SECTION 10.07. Execution of Guarantee . . . . . . . . . . . . . . . . . 95
SECTION 10.08. Waiver of Stay, Extension or Usury Laws . . . . . . . . 96
ARTICLE ELEVEN MISCELLANEOUS
SECTION 11.01. TIA Controls . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 11.03. Communications by Holders with Other Holders . . . . . . 98
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 11.05. Statements Required in Certificate or Opinion
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar . . . . . . . 99
SECTION 11.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 99
SECTION 11.08. Governing Law . . . . . . . . . . . . . . . . . . . . . 99
SECTION 11.09. No Adverse Interpretation of Other Agreements
. . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.10. No Recourse Against Others . . . . . . . . . . . . . . 100
SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.12. Duplicate Originals . . . . . . . . . . . . . . . . . 100
SECTION 11.13. Severability . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.14. Independence of Covenants . . . . . . . . . . . . . . 101
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S-1
Exhibit A - Form of Series A Note
Exhibit B - Form of Series B Note
Exhibit C - Form of Legend for Global Notes
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB Accredited
Investors
Exhibit E - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to Regulation S
Exhibit F - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE, dated as of February 25, 1998, between UNIVERSAL
HOSPITAL SERVICES, INC., a Minnesota corporation (the "Company"), and FIRST
TRUST NATIONAL ASSOCIATION, as trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 10 1/4%
Senior Notes due 2008, Series A, and 10 1/4% Senior Notes due 2008, Series
B, to be issued in exchange for the 10 1/4% Senior Notes due 2008, Series
A, pursuant to a Registration Rights Agreement (as defined) and, to provide
therefor, the Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make the Notes (as defined), when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid and binding obligations of the Company and to make
this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the
Company's 10 1/4% Senior Notes due 2008, Series A and Series B:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed in connection with
the acquisition of assets from such Person and in each case not incurred by
such Person in connection with, or in anticipation or contemplation of,
such Person becoming a Restricted Subsidiary of the Company or such
acquisition, merger or consolidation.
"Additional Interest" has the meaning provided in the
Registration Rights Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Applicable Premium" means, with respect to a Note, the greater
of (i) 1.0% of the then outstanding principal amount of such Note and (ii)
the excess of (A) the present value at such time of (1) the redemption
price of such Note at March 1, 2003 plus (2) all remaining required
interest payments due on such Note through March 1, 2003, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
then outstanding principal amount of such Note.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition
by the Company or any Restricted Subsidiary of the Company of the assets of
any Person (other than a Restricted Subsidiary of the Company) which
constitute all or substantially all of the assets of such Person or
comprises any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in
the ordinary course of business), assignment or other transfer for value by
the Company or any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Company or a Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted
Subsidiary of the Company; or (b) any other property or assets of the
Company or any Restricted Subsidiary of the Company other than in the
ordinary course of business; provided, however, that Asset Sales shall not
include (i) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of
less than $1.0 million; (ii) disposals or replacements of obsolete or worn-
out equipment in the ordinary course of business; (iii) the sale or
discount, in each case without recourse (other than recourse for a breach
of a representation or warranty) of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof; (iv) any Restricted Payment and (v) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of
the assets of the Company as permitted under Article Five.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of corporate
stock, including each class of Common Stock and Preferred Stock of such
Person and (ii) with respect to any Person that is not a corporation, any
and all partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified
and accounted for as capital lease obligations under GAAP and, for purposes
of this definition, the amount of such obligations at any date shall be the
capitalized amount of such obligations at such date, determined in
accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, 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 year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state
of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either Standard & Poor's
Corporation ("S&P") or Xxxxx'x Investors Service, Inc. ("Moody's"); (iii)
commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1
from S&P or at least P-1 from Moody's; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any U.S. branch
of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any
bank meeting the qualifications specified in clause (iv) above; and (vi)
investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the assets of the Company to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"), together
with any Affiliates thereof (whether or not otherwise in compliance with
the provisions of the Indenture) other than to the Permitted Holders; (ii)
the approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with the provisions of the Indenture); (iii) any
Person or Group (other than the Permitted Holders) shall become the owner,
directly or indirectly, beneficially or of record, of shares representing
more than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Capital Stock of the Company; or (iv) the
replacement of a majority of the Board of Directors of the Company over a
two-year period from the directors who constituted the Board of Directors
of the Company at the beginning of such period, and such replacement shall
not have been approved by a vote of at least a majority of the Board of
Directors of the Company then still in office who either were members of
such Board of Directors at the beginning of such period or whose election
as a member of such Board of Directors was previously so approved.
"Change of Control Offer" has the meaning provided in Section
4.14.
"Change of Control Payment Date" has the meaning provided in
Section 4.14.
"Commission" or "SEC" means the Securities and Exchange
Commission.
"Common Stock" of any Person means any and all shares, 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 Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means Universal Hospital Services, Inc., a Minnesota
corporation.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A)
all income taxes of such Person and its Restricted Subsidiaries paid or
accrued in accordance with GAAP for such period (other than income taxes
attributable to extraordinary, unusual or nonrecurring gains or losses or
taxes attributable to sales or dispositions outside the ordinary course of
business), (B) Consolidated Interest Expense and (C) Consolidated Non-cash
Charges less any non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the
date of the transaction giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio for which financial statements are
available (the "Transaction Date") to Consolidated Fixed Charges of such
Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA"
and "Consolidated Fixed Charges" shall be calculated after giving effect on
a pro forma basis for the period of such calculation to (i) the incurrence
or repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to
the need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to working capital facilities,
occurring during the Four Quarter Period or at any time subsequent to the
last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such incurrence or repayment, as the case may be (and the
application of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make
such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any Consolidated EBITDA
(including any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Exchange Act) attributable to the
assets which are the subject of the Asset Acquisition or Asset Sale during
the Four Quarter Period) occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall
give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in
calculating "Consolidated Fixed Charges" for purposes of determining the
denominator (but not the numerator) of this "Consolidated Fixed Charge
Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be
so determined thereafter shall be deemed to have accrued at a fixed rate
per annum equal to the rate of interest on such Indebtedness in effect on
the Transaction Date; (2) if interest on any Indebtedness actually incurred
on the Transaction Date may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Four
Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest
is covered by agreements relating to Interest Swap Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense, plus (ii) the product of (x) the amount of all dividend payments
on any series of Preferred Stock of such Person (other than dividends paid
in Qualified Capital Stock) paid, accrued or scheduled to be paid or
accrued during such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as
a decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP,
including without limitation, (a) any amortization of debt discount and
amortization or write-off of deferred financing costs, (b) the net costs
under Interest Swap Obligations, (c) all capitalized interest and (d) the
interest portion of any deferred payment obligation; and (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by such Person and its Restricted Subsidiaries during
such period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for
any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; provided that there shall be excluded therefrom
(a) after-tax gains or losses from Asset Sales or abandonments or reserves
relating thereto, (b) after-tax items classified as extraordinary or
nonrecurring gains or losses, (c) the net income or loss of any Person
acquired in a "pooling of interests" transaction accrued prior to the date
it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted
Subsidiary of the referent Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise, (e) the
net income of any Person, other than a Restricted Subsidiary of the
referent Person, except to the extent of cash dividends or distributions
paid to the referent Person or to a Restricted Subsidiary of the referent
Person by such Person, (f) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out
of Consolidated Net Income accrued at any time following the Issue Date,
(g) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued), and (h) in the case
of a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP
(excluding any such charges constituting an extraordinary item or loss or
any such charge which requires an accrual of or a reserve for cash charges
for any future period).
"Covenant Defeasance" has the meaning set forth in Section 8.02.
"Credit Agreement" means the Credit Agreement dated as of
February 25, 1998, among the Company, the lenders party thereto in their
capacities as lenders thereunder and Bankers Trust Company, as agent,
together with the related documents thereto (including, without limitation,
any guarantee agreements and security documents), in each case as such
agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including
any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including increasing the amount of available
borrowings thereunder or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) 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.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed
to protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"Depository" means, with respect to the Notes issued in the form
of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations
under, the Notes and to have satisfied all the obligations under this
Indenture relating to the Notes (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same upon
compliance by the Company with the provisions of Article Eight), except
(i) the rights of the Holders of Notes to receive, from the trust fund
described in Article Eight, payment of the principal of and the interest on
such Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes under Sections 2.03 through 2.07, 7.07 and 7.08 and
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Disqualified Capital Stock" means that portion of 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), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"Equity Offering" means a public or private offering of Qualified
Capital Stock of the Company.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 101/4% Senior Notes due 2008, Series B
to be issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement or, with respect to Initial Notes issued under this
Indenture subsequent to the Issue Date pursuant to Section 2.02, a
registration rights agreement substantially identical to the Registration
Rights Agreement.
"Exchange Offer" has the meaning provided in the Registration
Rights Agreement.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Board of Directors of the Company
delivered to the Trustee.
"Funds" means the aggregate amount of U.S. Legal Tender and/or
U.S. Government Obligations deposited with the Trustee pursuant to Article
Eight.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, which are in effect as
of the Issue Date.
"Global Note" has the meaning provided in Section 2.01.
"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" means each of the Company's Restricted Subsidiaries
that in the future executes a supplemental indenture in which such
Restricted Subsidiary agrees to be bound by the terms of the Indenture as a
Guarantor; provided that any Person constituting a Guarantor as described
above shall cease to constitute a Guarantor when its respective Guarantee
is released in accordance with the terms of the Indenture.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" has the meaning provided in Section 4.12.
"Indebtedness" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (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 (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue 180 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted), (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 (vi) which are secured by any lien on any property or
asset of such Person, the amount of such 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, (viii) all Obligations under currency agreements
and interest swap agreements of such Person and (ix) all Disqualified
Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater
of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to the Indenture,
and if such price is based upon, or measured by, the fair market value of
such Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of
such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not,
and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is otherwise independent
and qualified to perform the task for which it is to be engaged.
"Initial Notes" means, collectively, (i) the 10 1/4% Senior Notes
due 2008, Series A, of the Company issued on the Issue Date and (ii) one or
more series of 10 1/4% Senior Notes due 2008 that are issued under this
Indenture subsequent to the Issue Date pursuant to Section 2.02, in each
case for so long as such securities constitute Restricted Notes.
"Initial Purchaser" means BT Alex. Xxxxx Incorporated.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"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, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation,
a guarantee) or capital contribution to (by means of any transfer of cash
or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of
any Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any Person. "Investment" shall exclude
extensions of trade credit by the Company and its Restricted Subsidiaries
on commercially reasonable terms in accordance with normal trade practices
of the Company or such Restricted Subsidiary, as the case may be. For the
purposes of Section 4.10, (i) "Investment" shall include and be valued at
the fair market value of the net assets of any Restricted Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the fair market value of the net assets of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary and (ii) the amount of any Investment
shall be the original cost of such Investment plus the cost of all
additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment,
reduced by the payment of dividends or distributions in connection with
such Investment or any other amounts received in respect of such
Investment; provided that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment
if such payment of dividends or distributions or receipt of any such
amounts would be included in Consolidated Net Income. If the Company or
any Restricted Subsidiary of the Company sells or otherwise disposes of any
Common Stock of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such
Subsidiary is no longer a Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Common Stock of such
Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the Notes.
"Legal Defeasance" has the meaning set forth in Section 8.02.
"Legal Holiday" has the meaning provided in Section 11.07.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Management Agreement" means the management agreement by and
between the Company and X.X. Childs Associates, L.P., as in effect on the
Issue Date.
"Maturity Date" means March 1, 2008.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash
or Cash Equivalents (other than the portion of any such deferred payment
constituting interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of (a) out-of-pocket expenses and
fees relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions), (b) taxes
paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing
arrangements, (c) repayment of Indebtedness that is required to be repaid
in connection with such Asset Sale and (d) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case may be,
as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.15.
"Net Proceeds Offer Amount" has the meaning provided in
Section 4.15.
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.15.
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.15.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" means, collectively, the Initial Notes, the Private
Exchange Notes, if any, and the Exchange Notes, treated as a single class
of securities, as amended or supplemented from time to time in accordance
with the terms of this Indenture, that are issued pursuant to this
Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any
Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors
serving in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any
Vice President and the Chief Financial Officer or any Treasurer of such
Person that shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee complying with the requirements
of Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel, and delivered to the Trustee.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03, except
that, during the continuance of a Default or Event of Default and for the
purposes of Articles Three and Eight and Sections 4.14 and 4.15, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"Permitted Holders" means X.X. Childs Equity Partners, L.P. and
its Affiliates.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes and the Indenture up
to $100 million at any time outstanding;
(ii) Indebtedness incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not
to exceed the greater of $30.0 million and (y) the sum of 85% of
Eligible Accounts Receivable and 60% of the net book value of Eligible
Rental Equipment, in each case as defined in the Credit Agreement,
reduced, in either case, by any required permanent repayments pursuant
to the provisions of Section 4.15 (which are accompanied by a
corresponding permanent commitment reduction in the case of a
revolving credit facility) thereunder;
(iii) other Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Issue Date reduced by the
amount of any scheduled amortization payment or mandatory prepayments
when actually paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any of its Restricted Subsidiaries;
provided, however, that such Interest Swap Obligations are entered
into to protect the Company and its Restricted Subsidiaries from
fluctuations in interest rates on Indebtedness incurred in accordance
with the Indenture to the extent the notional principal amount of such
Interest Swap Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(v) Indebtedness of a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company
for so long as such Indebtedness is held by the Company or a
Restricted Subsidiary of the Company or the lenders or collateral
agent under the Credit Agreement, in each case subject to no Lien held
by a Person other than the Company or a Restricted Subsidiary of the
Company or the lenders or collateral agent under the Credit Agreement;
provided that if as of any date any Person other than the Company or a
Restricted Subsidiary of the Company or the lenders or collateral
agent under the Credit Agreement owns or holds any such Indebtedness
or holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness;
(vi) Indebtedness of the Company to a Restricted
Subsidiary of the Company for so long as such Indebtedness is held by
a Restricted Subsidiary of the Company or the lenders or collateral
agent under the Credit Agreement, in each case subject to no Lien held
by a Person other than the lenders or the collateral agent under the
Credit Agreement; provided that (a) any Indebtedness of the Company to
any Restricted Subsidiary of the Company is unsecured and
subordinated, pursuant to a written agreement, to the Company's
obligations under the Indenture and the Notes and (b) if as of any
date any Person other than a Restricted Subsidiary of the Company owns
or holds any such Indebtedness or any Person holds a Lien in respect
of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the Company;
(vii) Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within three
business days of incurrence;
(viii) Indebtedness of the Company or any of its
Restricted Subsidiaries represented by letters of credit for the
account of the Company or such Restricted Subsidiary, as the case may
be, in order to provide security for workers' compensation claims,
payment obligations in connection with self-insurance or similar
requirements in the ordinary course of business;
(ix) Refinancing Indebtedness;
(x) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$10.0 million at any one time outstanding;
(xi) Purchase Money Indebtedness and Capitalized Lease
Obligations in an aggregate amount for all Indebtedness incurred by
the Company or any Restricted Subsidiary pursuant to this subclause
(xi) not to exceed $5.0 million at any one time outstanding;
(xii) guarantees of Indebtedness otherwise permitted
under the Indenture; and
(xiii) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including, without limitation
shares of Capital Stock.
"Permitted Investments" means:
(i) Investments by the Company or any Restricted
Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a
Restricted Subsidiary of the Company;
(ii) Investments in the Company by any Restricted
Subsidiary of the Company; provided that any Indebtedness
evidencing such Investment is unsecured and subordinated,
pursuant to a written agreement, to the Company's obligations
under the Notes and the Indenture;
(iii) investments in cash and Cash Equivalents;
(iv) loans and advances to employees and officers
of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes (including to
permit the purchase of or to carry Capital Stock of the Company)
not in excess of $500,000 at any one time outstanding;
(v) Interest Swap Obligations entered into in the
ordinary course of the Company's or its Restricted Subsidiaries'
businesses and otherwise in compliance with the Indenture;
(vi) other Investments not to exceed $7.5 million
at any one time outstanding; provided that on the date such
Investment is made, after giving effect to such Investment, the
Consolidated Fixed Charge Coverage Ratio of the Company is
greater than (x) 2.25 to 1.0 if the Investment is made prior to
March 1, 2001 and (y) 2.50 to 1.0 if the Investment is made on or
after March 1, 2001;
(vii) Investments in securities of trade creditors
or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers;
(viii) Investments made by the Company or its
Restricted Subsidiaries as a result of consideration received in
connection with an Asset Sale made in compliance with Section
4.15;
(ix) Investments the payment of which consists
exclusively of Qualified Capital Stock of the Company;
(x) Investments in existence on the Issue Date;
(xi) guarantees of Indebtedness otherwise
permitted under the Indenture;
(xii) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance
with customary trade terms; and
(xiii) Investments consisting of Permitted
Indebtedness.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b) contested in
good faith by appropriate proceedings and as to which the Company
or its Restricted Subsidiaries shall have set aside on its books
such reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested
in good faith, if such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made in respect
thereof;
(iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in
the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of
Default;
(v) easements, rights-of-way, zoning
restrictions, eminent domain proceedings and other similar
charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of
the business of the Company or any of its Restricted
Subsidiaries;
(vi) any interest or title of a lessor under any
Capitalized Lease Obligation; provided that such Liens do not
extend to any property or assets which is not leased property
subject to such Capitalized Lease Obligation;
(vii) purchase money Liens to finance the
acquisition, construction or improvement in the ordinary course
of business of property or assets of the Company or any
Restricted Subsidiary of the Company; provided, however, that (A)
the related purchase money Indebtedness shall not exceed the cost
of such acquisition, construction or improvement of such property
or assets and shall not be secured by any property or assets of
the Company or any Restricted Subsidiary of the Company other
than the property and assets so acquired (whether through the
direct acquisition of such property or assets or indirectly
through the acquisition of the Capital Stock of any Person owning
such property or assets or completion of construction or
improvement), constructed or improved and (B) the Lien securing
such Indebtedness shall be created within 90 days of such
acquisition;
(viii) Liens upon specific items of inventory or
other goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or created
for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with
respect to commercial letters of credit which encumber documents
and other property relating to such letters of credit and
products and proceeds thereof;
(x) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual, or
warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations
which Interest Swap Obligations relate to Indebtedness that is
otherwise permitted under this Indenture;
(xii) Liens securing Acquired Indebtedness incurred
in accordance with Section 4.12; provided that (A) such Liens
secured such Acquired Indebtedness at the time of and prior to
the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in
connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary
of the Company and (B) such Liens do not extend to or cover any
property or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary
of the Company and are no more favorable to the lienholders than
those securing the Acquired Indebtedness prior to the incurrence
of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company;
(xiii) Liens existing as of the Issue Date;
(xiv) Liens securing Indebtedness under the Credit
Agreement incurred under clauses (ii) and (x) of the definition
of Permitted Indebtedness;
(xv) Liens in favor of the Company or a Restricted
Subsidiary;
(xvi) Liens on property or assets of the Company or
any Restricted Subsidiary securing Indebtedness incurred under
clause (x) of the definition of "Permitted Indebtedness";
(xvii) licenses, leases or subleases to third
parties;
(xviii) Liens arising from precautionary Uniform
Commercial Code financing statements relating to operating leases
of the Company and its Restricted Subsidiaries;
(xix) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $7.5
million at any one time outstanding and that (a) are not incurred
in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary
course of business) and (b) do not materially detract from the
value of the property or materially impair the use thereof in the
ordinary course of business of the Company and its Restricted
Subsidiaries; and
(xx) any extension, renewal or replacement, in
whole or in part, of any Lien described in the foregoing clauses
(i) through (xix); provided that the lien so extended, renewed or
replaced does not extent to any additional property or assets.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Physical Notes" shall have the meaning provided in Section 2.01.
"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.
"Private Exchange Notes" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth
on the Initial Notes in the form set forth on Exhibit A.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation
in accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company's Board of Directors in consultation with its
independent certified public accountants.
"Purchase Money Indebtedness" means Indebtedness of the Company
or its Restricted Subsidiaries incurred for the purpose of financing all or
any part of the purchase price or the cost of installation, construction or
improvement of any property and any Refinancing thereof.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Recapitalization" means the recapitalization of the Company
which is being effected through the merger of UHS Acquisition Corp. with
and into the Company pursuant an Agreement and Plan of Merger dated as of
November 25, 1997 (the "Merger Agreement").
"Redemption Date" means, with respect to any Notes, the Maturity
Date of such Note or the earlier date on which such Note is to be redeemed
by the Company pursuant to paragraph 5 of the Notes.
"Redemption Price" has the meaning provided in Section 3.03.
"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.
"Refinancing Indebtedness" means any Refinancing by the Company
or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.12 (other than pursuant to clause (ii), (iv),
(v), (vi), (vii), (viii), (x) or (xi) of the definition of Permitted
Indebtedness), in each case that does not (1) result in an increase in the
aggregate principal amount of Indebtedness of such Person as of the date of
such proposed Refinancing (plus the amount of any premium required to be
paid under the terms of the instrument governing such Indebtedness and plus
the amount of reasonable expenses incurred by the Company in connection
with such Refinancing) or (2) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced or (B) a final maturity
earlier than the final maturity of the Indebtedness being Refinanced;
provided that (x) if such Indebtedness being Refinanced is Indebtedness of
the Company, then such Refinancing Indebtedness shall be Indebtedness
solely of the Company and (y) if such Indebtedness being Refinanced is
subordinate or junior to the Notes, then such Refinancing Indebtedness
shall be subordinate to the Notes at least to the same extent and in the
same manner as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the registration rights
agreement dated the Issue Date between the Company and the Initial
Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold
in reliance on Regulation S under the Securities Act.
"Replacement Assets" has the meaning provided in Section 4.15.
"Restricted Note" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted
Subsidiary.
"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 Restricted Subsidiary of any
property, whether owned by the Company or any Restricted Subsidiary at the
Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or
to any other Person from whom funds have been or are to be advanced by such
Person on the security of such property.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Significant Subsidiary" shall have the meaning set forth in Rule
1.02(w) of Regulation S-X under the Securities Act.
"Stockholders' Agreement" means the stockholders' agreement dated
the Issue Date between the Company and the stockholders party thereto.
"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the
time, directly or indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa- 77bbbb), as amended, as in effect on the date hereof, except as
otherwise provided in Section 9.03.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity
(as compiled by, and published in, the most recent Federal Reserve
Statistical Release H.15 (519) which has become publicly available at least
two business days prior to the date fixed for redemption of the Notes
following a Change of Control (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most
nearly equal to the then remaining Weighted Average Life to Maturity of the
Notes; provided, however, that if the Weighted Average Life to Maturity of
the Notes is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall
be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the Weighted
Average Life to Maturity of the Notes is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted
to a constant maturity of one year shall be used.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters
or, in the case of a successor trustee, an officer assigned to the
department, division or group performing the corporate trust work of such
successor.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture
and thereafter means such successor.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary
of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock
of, or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be
so designated; provided that (x) the Company certifies to the Trustee that
such designation complies with Section 4.10 and (y) each Subsidiary to be
so designated and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to
any Indebtedness pursuant to which the lender has recourse to any of the
assets of the Company or any of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such designation,
the Company is able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12 and (y)
immediately before and immediately after giving effect to such designation,
no Default or Event of Default shall have occurred and be continuing. Any
such designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an officers' certificate certifying
that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
then outstanding aggregate principal amount of such Indebtedness into (b)
the sum of the total of the products obtained by multiplying (i) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payment of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of such
payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares required to
be owned by other Persons pursuant to applicable law) are owned by such
Person or any Wholly Owned Restricted Subsidiary of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by the TIA by reference to another statute or defined by
SEC rule and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the Issue Date;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes, the notation thereon relating to the
Guarantees, if any, and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Exchange Notes, the
notation thereon relating to the Guarantees, if any, and the Trustee's
certificate of authentication relating thereto shall be substantially in
the form of Exhibit B hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company
shall approve the form of the Notes and any notation, legend or endorsement
thereon. Each Note shall be dated the date of issuance and shall show the
date of its authentication. Each Note shall have an executed Guarantee
from each of the Guarantors, if any, endorsed thereon substantially in the
form of Exhibit F hereto.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A and B, shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes offered
and sold in reliance on Regulation S shall be issued initially in the form
of one or more Global Notes, substantially in the form set forth in
Exhibit A (the "Global Note"), deposited with the Trustee, as custodian for
the Depository, duly executed by the Company (and having an executed
Guarantee from each of the Guarantors, if any, endorsed thereon) and
authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Exhibit C. The aggregate principal amount of the
Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant
to Section 2.16 may be issued and Notes offered and sold in reliance on any
other exemption from registration under the Securities Act other than as
described in the preceding paragraph shall be issued in the form of
permanent certificated Notes in registered form in substantially the form
set forth in Exhibit A, with respect to Initial Notes, and Exhibit B, with
respect to Exchange Notes (in each case, the "Physical Notes").
All Notes offered and sold in reliance on Regulation S shall
remain in the form of a Global Note until the consummation of the Exchange
Offer pursuant to Section 2(a) of the Registration Rights Agreement;
provided, however, that such Exchange Offer shall be consummated in the
time period specified in the Registration Rights Agreement.
SECTION 2.02. Execution and Authentication;
Aggregate Principal Amount.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign, and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Company,
and the Guarantees for any Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note
or a Guarantee, as the case may be, was an Officer or Assistant Secretary
at the time of such execution but no longer holds that office or position
at the time the Trustee authenticates the Note, the Note shall nevertheless
be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature of such representative of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount not to exceed $180,000,000 in one or
more series; provided that the aggregate principal amount of Initial Notes
on the Issue Date shall not exceed $100,000,000, (ii) Private Exchange
Notes from time to time only in exchange for a like principal amount of
Initial Notes and (iii) Exchange Notes from time to time only in exchange
for (A) a like principal amount of Initial Notes or (B) a like principal
amount of Private Exchange Notes, in each case upon a written order of the
Company in the form of an Officers' Certificate of the Company. Each such
written order shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated, whether the Notes are to
be Initial Notes, Private Exchange Notes or Exchange Notes and whether
(subject to Section 2.01) the Notes are to be issued as Physical Notes or
Global Notes and such other information as the Trustee may reasonably
request. The aggregate principal amount of Notes outstanding at any time
may not exceed $180,000,000, except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any
of such Notes may vote or consent) as one class and no series of Notes will
have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided
in the 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 an Agent to deal with the Company and
Affiliates of the Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New
York) where (a) Notes may be presented or surrendered for registration of
transfer or for exchange ("Registrar"), (b) Notes may be presented or
surrendered for payment ("Paying Agent") and (c) notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
paying agent. The Company may change the Paying Agent or Registrar without
notice to any Holder. The Company may act as its own Paying Agent, except
that for the purposes of payments on the Notes pursuant to Sections 4.14
and 4.15, neither the Company nor any Affiliate of the Company may act as
Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee, in
advance, of the name and address of any such Agent. If the Company fails
to maintain a Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has
been appointed. Any of the Registrar, the Paying Agent or any other agent
may resign upon 30 days' notice to the Company. The office of the Paying
Agent as Registrar for purposes of this Section 2.03 shall initially be at
000 Xxxx Xxxxxx, Xxxxx 0000, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all assets held by the Paying
Agent for the payment of principal of, premium, if any, or interest on, the
Notes (whether such assets have been distributed to it by the Company or
any other obligor on the Notes), and shall notify the Trustee of any
default by the Company (or any other obligor on the Notes) in making any
such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any
payment Default, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying
Agent and the completion of any accounting required to be made hereunder,
the Paying Agent shall have no further liability for such assets.
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 the Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee five
(5) Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing a list as of the applicable Record
Date and in such form as the Trustee may reasonably require of the names
and addresses of the Holders, which list may be conclusively relied upon by
the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented to
the Registrar or a co-Registrar with a request to register the transfer of
such Notes or to exchange such Notes for an equal principal amount of Notes
of other authorized denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested if its requirements
for such transaction are met; provided, however, that the Notes presented
or surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes and the Guarantors, if any, shall execute
Guarantees thereon at the Registrar's or co-Registrar's written request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchanges or transfers pursuant to Section 2.10, 3.03,
4.14, 4.15 or 9.05, in which event the Company shall be responsible for the
payment of such taxes).
The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of any Note (i) during a period beginning at
the opening of business 15 days before the mailing of a notice of
redemption of Notes and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in
part.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book entry
system maintained by the Holder of such Global Note (or its agent), and
that ownership of a beneficial interest in the Note shall be required to be
reflected in a book entry system.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee 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 and each of the Guarantors, if any, shall
execute a Guarantee thereon if the Trustee's requirements are met. If
required by the Trustee or the Company, such Holder must provide an
indemnity bond or other indemnity, sufficient in the reasonable judgment of
the Company, the Guarantors, if any, and the Trustee, to protect the
Company, the Guarantors, if any, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. The Company and the
Trustee may charge such Holder for its reasonable out-of-pocket expenses in
replacing a Note, including reasonable fees and expenses of counsel. Every
replacement Note shall constitute an additional obligation of the Company
and every replacement Guarantee shall constitute an additional obligation
of the Guarantors.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not
outstanding. Subject to Section 2.09, a Note does not cease to be
outstanding because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), such Note, together with the
related Guarantee, if any, ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a bona
fide purchaser. A mutilated Note and the related Guarantee, if any, cease
to be outstanding upon surrender of such Note and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay
all of the principal, premium, if any, and interest due on the Notes
payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases
to accrue.
If on any date which is no earlier than 60 days prior to a
Redemption Date, the Company has irrevocably deposited in trust with the
Trustee U.S. Legal Tender, U.S. Government Obligations or a combination
thereof in an amount sufficient to pay all of the principal, premium, if
any, and interest due on the Notes payable on such Redemption Date,
together with irrevocable instructions from the Company directing the
Trustee to apply such finds to the payment thereof on such Redemption Date
pursuant to the terms of this Indenture, then and after the date of such
deposit such Notes shall be deemed to be not outstanding for purposes of
determining whether the Holders of the required aggregate principal amount
of Notes have concurred in any direction, waiver, consent or notice which
requires the consent of at least a majority in aggregate principal amount
of Notes then outstanding.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent
or notice, Notes owned by the Company or an Affiliate shall be considered
as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Trustee actually knows
are so owned shall be so considered. The Company shall notify the Trustee,
in writing, when it or any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes so
repurchased or otherwise acquired and such other information as the Trustee
may reasonably request and the Trustee shall be entitled to rely thereon.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes and the
Guarantors, if any, shall prepare temporary Guarantees thereon upon receipt
of a written order of the Company in the form of an Officers' Certificate.
The Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and so indicate in the Officers'
Certificate. Without unreasonable delay, the Company shall prepare and
execute, and the Trustee shall authenticate and the Guarantors, if any,
shall execute Guarantees on, upon receipt of a written order of the Company
pursuant to Section 2.02, definitive Notes in exchange for temporary Notes.
SECTION 2.11. 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 transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent, and no one else, shall cancel and dispose, in its customary
manner, and deliver evidence of disposal of all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that the Company has paid
or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
SECTION 2.12. Defaulted Interest.
The Company will pay interest on overdue principal from time to
time on demand at the rate of interest then borne by the Notes. The
Company shall, to the extent lawful, pay interest on overdue installments
of interest (without regard to any applicable grace periods) from time to
time on demand at the rate of interest then borne by the Notes. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, which special record date shall be the
fifteenth day next preceding the date fixed by the Company for the payment
of defaulted interest or the next succeeding Business Day if such date is
not a Business Day. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment (a "Default Interest Payment Date"), and on or
prior to the date of the proposed payment the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such defaulted interest, such money when deposited to be
held in trust for the benefit of the Persons entitled to such defaulted
interest as provided in this Section. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder, with
a copy to the Trustee, a notice that states the subsequent special record
date, the Default Interest Payment Date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be
paid.
Notwithstanding the foregoing, any interest which is paid prior
to the expiration of the 30-day period set forth in Section 6.01(1) shall
be paid to Holders as of the regular record date for the Interest Payment
Date for which interest has not been paid. Notwithstanding the foregoing,
the Company may make payment of any defaulted interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by
such exchange.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that
no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of the CUSIP numbers printed in the notice or on
the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company shall promptly notify the
Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
On or prior to each Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date, and Net Proceeds Offer
Payment Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date, and Net Proceeds Offer Payment Date, as the case
may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date, and Net Proceeds Offer Payment Date,
as the case may be.
SECTION 2.15. Book-Entry Provisions for
Global Notes.
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as
set forth in Exhibit C.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Note
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Note, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes
may be transferred or exchanged for Physical Notes in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16.
In addition, Physical Notes shall be transferred to all beneficial owners
in exchange for their beneficial interests in Global Notes if (i) the
Depository notifies the Company that it is unwilling or unable to continue
as Depository for any Global Note and a successor Depository is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a
written request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and
the Company shall execute and the Trustee shall authenticate and deliver,
one or more Physical Notes of authorized denominations in an aggregate
principal amount equal to the principal amount of the beneficial interest
in the Global Note so transferred.
(d) In connection with the transfer of a Global Note as an
entirety to beneficial owners pursuant to paragraph (b) of this Section
2.15, such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, any Guarantors shall execute
Guarantees on and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by
the Depository in exchange for its beneficial interest in such Global Note,
an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or
(c) of this Section 2.15 shall, except as otherwise provided by Section
2.16, bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any
Restricted Note, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that
neither the Company nor any Affiliate of the Company has held any
beneficial interest in such note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date or
(y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the
proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto and any legal
opinions and certifications required thereby and (2) in the case
of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the
form of Exhibit E hereto;
(ii) if the proposed transferee is a Participant and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note,
upon receipt by the Registrar of (x) written instructions given
in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required
by clause (y) of paragraph (i) above, the Registrar shall
register the transfer and reflect on its books and records the
date and an increase in the principal amount of the Global Note
in an amount equal to the principal amount of Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes
so transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in a Global Note, upon receipt by
the Registrar of (x) written instructions given in accordance
with the Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of
paragraph (i) above, the Registrar shall register the transfer
and reflect on its books and records the date and (A) a decrease
in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the
principal amount of the Notes to be transferred and (B) an
increase in the principal amount of the Global Note in an amount
equal to the principal amount of the Notes to be transferred.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Restricted
Security to a QIB:
(i) the Registrar shall register the transfer of any
Restricted Note, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that
neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date or
(y) such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided
for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the
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 QIB within the meaning of Rule 144A, 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 it 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 its foregoing representations
in order to claim the exemption from registration provided by
Rule 144A;
(ii) if the proposed transferee is a Participant and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note,
upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures,
the Registrar shall register the transfer and reflect on its book
and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of
Physical Notes to be transferred, and the Trustee shall cancel
the Physical Note so transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in the Regulation S Global Note,
upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures,
the Registrar shall register the transfer and reflect on its
books and records the date and (A) a decrease in the principal
amount of the Regulation S Global Note in an amount equal to the
principal amount of the Notes to be transferred and (B) an
increase in the principal amount of the Global Note in an amount
equal to the principal amount of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Notes that bear the Private Placement Legend unless (i) the
requested transfer is after the second anniversary of the Issue Date
(provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion thereof,
at any time prior to or on the second anniversary of the Issue Date), (ii)
there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under
the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this
Section 2.16. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
(f) Transfers of Notes Held by Affiliates. Any certificate (i)
evidencing a Note that has been transferred to an Affiliate of the Company
within two years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered
in respect thereof or (ii) evidencing a Note that has been acquired from an
Affiliate (other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two years
after the last date on which either the Company or any Affiliate of the
Company was an owner of such Note, in each case, bear the Private Placement
Legend, unless otherwise agreed by the Company (with written notice thereof
to the Trustee).
SECTION 2.17. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted
Note shall bear the legend (the "Private Placement Legend") as set forth in
Exhibit A on the face thereof until after the second anniversary of the
later of the Issue Date and the last date on which the Company or any
Affiliate of the Company was the owner of such Note (or any predecessor
security) (or such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder) (or such longer
period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company, unless
otherwise agreed by the Company and the Holder thereof).
Each Global Note shall also bear the legend as set forth in
Exhibit C.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5 of
the Notes, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the aggregate principal amount of the Notes to be
redeemed. Such notice must be given at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), but shall not be given more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Notes To Be Redeemed.
In the event that less than all of the Notes are to be redeemed
at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed or, if such
Notes are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and
appropriate; provided, however, that no Notes of a principal amount of
$1,000 or less shall be redeemed in part; provided, further, that if a
partial redemption is made with the proceeds of an Equity Offering,
selection of the Notes or portions thereof for redemption shall be made by
the Trustee only on a pro rata basis or on as nearly a pro rata basis as is
practicable (subject to DTC procedures), unless such method is otherwise
prohibited. If any Note is to be redeemed in part only, a new Note in a
principal amount equal to the unredeemed portion thereof will be issued in
the name of the Holder thereof upon cancellation of the original Note. On
and after the Redemption Date, interest will cease to accrue on Notes or
portions thereof called for redemption as long as the Company has deposited
with the Paying Agent funds in satisfaction of the applicable Redemption
Price.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption
by first-class mail to each Holder whose Notes are to be redeemed at its
registered address, with a copy to the Trustee. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name and
at the Company's expense. Each notice for redemption shall identify the
Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price (the "Redemption Price") and the amount
of accrued interest, if any, to be paid as of the Redemption Date;
(3) the paragraph and subparagraph of the Notes pursuant to
which the Notes are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(6) that, unless the Company defaults in paying the Redemption
Price, interest, if any, on Notes called for redemption shall cease to
accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption
Price plus accrued interest as of the Redemption Date, if any, upon
surrender to the Paying Agent of the Notes redeemed;
(7) that, if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in the aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
(8) that, if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
the purchase of Notes.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price plus accrued interest, if any.
Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the Redemption Price plus accrued interest
thereon to the Redemption Date, but installments of interest, the maturity
of which is on or prior to the Redemption Date, shall be payable to Holders
of record at the close of business on the relevant record dates referred to
in the Notes. Interest shall accrue on or after the Redemption Date and
shall be payable only if the Company defaults in payment of the Redemption
Price.
SECTION 3.05. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption
Price plus accrued interest, if any, of all Notes to be redeemed on that
date. The Paying Agent shall promptly return to the Company any U.S. Legal
Tender so deposited that is not required for that purpose, except with
respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
Unless the Company fails to comply with the preceding paragraph
and defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes
and in this Indenture. An installment of principal of or interest on the
Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds
on that date U.S. Legal Tender designated for and sufficient to pay in a
timely manner the installment in full and is not prohibited from paying
such money to the Holders, pursuant to the terms of this Indenture.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United
States of America from principal, premium or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee
of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof,
the presentations, surrenders, notices and demands referred to in Section
2.03 may be made or served at the address of the Trustee set forth in
Section 11.02.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall
do or cause to be done all things reasonably necessary to preserve and keep
in full force and effect its corporate or other existence and the corporate
or other existence of each of its Restricted Subsidiaries in accordance
with the respective organizational documents of the Company and each such
Restricted Subsidiary and the material rights (charter and statutory) and
franchises of the Company and each such Restricted Subsidiary; provided,
however, that the Company shall not be required to preserve, with respect
to itself, any material right or franchise and, with respect to any of its
Restricted Subsidiaries, any such existence, material right or franchise,
if the Board of Directors of the Company or such Restricted Subsidiary, as
the case may be, shall determine that the preservation thereof is no longer
reasonably necessary or desirable in the conduct of the business of the
Company or its Subsidiaries, taken as a whole.
SECTION 4.04. 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 material
taxes, assessments and governmental charges (including withholding taxes
and any penalties, interest and additions to taxes) levied or imposed upon
it or any of its Subsidiaries or properties of it or any of its
Subsidiaries and (ii) all material lawful claims for labor, materials,
supplies and services that, if unpaid, might by law become a Lien upon the
property of it or any of its Subsidiaries; provided, however, that there
shall not be required to be paid or discharged any such tax, assessment,
charge or claim, the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings and for which adequate
provision has been made or for which adequate reserves, to the extent
required under GAAP, have been taken or where the failure to effect such
payment or discharge is not adverse in any material respect to the Holders.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain all of its material properties used or useful in
the conduct of its business in good working order and in normal condition
(subject to ordinary wear and tear) and make all necessary repairs,
renewals and replacements thereto as in the reasonable judgment of the
Company are necessary to the active conduct of its business; provided,
however, that nothing in this Section 4.05 shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such properties are, in the
reasonable and good faith judgment of the Board of Directors of the Company
or the Restricted Subsidiary, as the case may be, no longer reasonably
necessary in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in
the reasonable, good faith judgment of the Board of Directors of the
Company, are adequate and appropriate for the conduct of the business of
the Company and such Restricted Subsidiaries.
SECTION 4.06 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each of the Company's fiscal years, an Officers'
Certificate stating that a review of its activities and the activities of
its Restricted Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining
whether it has kept, observed, performed and fulfilled its obligations
under this Indenture and further stating, as to each such officer signing
such certificate, that to the best of such officers' knowledge the Company
during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such obligation and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity.
The Officers' Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to
Section 4.08 shall be accompanied by a written report of the Company's
independent certified public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the
form of the Notes as they relate to accounting matters, and (B) whether, in
connection with their audit examination, any Default or Event of Default
has come to their attention and if such a Default or Event of Default has
come to their attention, specifying the nature and period of existence
thereof; provided, however, that, without any restriction as to the scope
of the audit examination, such independent certified public accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Default or Event of Default that would not be disclosed in the course
of an audit examination conducted in accordance with generally accepted
auditing standards.
(c) So long as any of the Notes are outstanding (i) if any
Default or Event of Default has occurred and is continuing or (ii) if any
Holder seeks to exercise any remedy hereunder with respect to a claimed
Default under this Indenture or the Notes, the Company shall deliver to the
Trustee as soon as practicable by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy by
registered or certified mail an Officers' Certificate specifying such
event, notice or other action.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as
are not in the aggregate reasonably likely to have a material adverse
effect on the financial condition or results of operations of the Company
and its Restricted Subsidiaries taken as a whole.
SECTION 4.08. Reports to Holders.
(a) The Company (at its own expense) will deliver to the Trustee
within 15 days after the filing of the same with the Commission, copies of
the quarterly and annual reports and of the information, documents and
other reports, if any, which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report on
the financial statements included therein by the Company's certified
independent accountants.
(b) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will provide the Trustee and each Holder with such annual reports
and such information, documents and other reports specified in Sections 13
and 15(d) of the Exchange Act.
(c) In addition, whether or not required by the rules and
regulations of the Commission, at any time after the Company files the
Exchange Offer Registration Statement with the Commission, the Company will
file a copy of all such information with the Commission for public
availability (unless the Commission will not accept such a filing) and make
such information available to investors who request it in writing. The
Company will also comply with the other provisions of TIA Section 314(a).
Notwithstanding anything to the contrary herein, the Trustee
shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive the
Company from paying all or any portion of the principal of, premium or
interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the obligations or the
performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company) on or in respect of
shares of the Company's Capital Stock to holders of such Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value (except from the
Company or a Restricted Subsidiary) any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock, (c) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value, prior to
any scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company not held by a Restricted
Subsidiary that is subordinate or junior in right of payment to the Notes
(except the prepayment, purchase, repurchase, or other acquisition or
retirement of Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity in each case within one
year of the date of prepayment, purchase, repurchase or other acquisition
or retirement) or (d) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b)
(c) and (d) being referred to as a "Restricted Payment"), if at the time of
such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing; (ii)
the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12; or
(iii) the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to the Issue Date (the amount expended
for such purposes, if other than in cash, being the fair market value of
such property as determined reasonably and in good faith by the Board of
Directors of the Company) shall exceed the sum of: (w) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to the Issue Date and on or prior to the date the Restricted
Payment occurs (the "Reference Date") (treating such period as a single
accounting period); plus (x) 100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date and on or
prior to the Reference Date of Qualified Capital Stock of the Company; plus
(y) without duplication of any amounts included in clause (iii)(x) above,
100% of the aggregate net cash proceeds of any equity contribution received
by the Company from a holder of the Company's Capital Stock (excluding, in
the case of clauses (iii)(x) and (y), any net cash proceeds from Equity
Offerings to the extent used to redeem the Notes in accordance with
Paragraph 5 of the Notes; plus (aa) 100% of the aggregate net cash proceeds
received after the Issue Date by the Company from any Person (other than a
Subsidiary of the Company) for debt securities that have been converted or
exchanged into or for Qualified Capital Stock of the Company (to the extent
such debt securities were originally sold for cash) plus the aggregate
amount of cash received by the Company (other than from a Subsidiary of the
Company) in connection with such conversion or exchange, plus (bb) in the
case of the disposition or repayment of any Investment constituting a
Restricted Payment after the Issue Date, an amount equal to the lesser of
the return of capital with respect to such Investment and the initial
amount of such Investment, in either case, less the cost of the disposition
of such Investment, and (cc) so long as the designation thereof was treated
as a Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date, the fair market value of the Company's
interest in such Subsidiary calculated in accordance with GAAP, provided
that such amount shall not in any case exceed the designation amount with
respect to such Restricted Subsidiary upon its designation.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any
dividend or the consummation of any purchase or redemption within 60 days
after the date of declaration of such dividend or the giving of any
irrevocable notice in respect of any such purchase or redemption if the
dividend or purchase or redemption would have been permitted on the date of
declaration or the giving of each irrevocable notice; (2) if no Default or
Event of Default shall have occurred and be continuing, the acquisition of
any shares of Capital Stock of the Company, either (i) solely in exchange
for shares of Qualified Capital Stock of the Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital
Stock of the Company; (3) if no Default or Event of Default shall have
occurred and be continuing, the purchase, defeasance, redemption,
prepayment or other acquisition or retirement for value of any Indebtedness
of the Company that is subordinate or junior in right of payment to the
Notes either (i) solely in exchange for shares of Qualified Capital Stock
of the Company, or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; (4) so long as no Default or Event of Default
shall have occurred and be continuing, repurchases by the Company of Common
Stock of the Company or stock appreciation rights or similar interests in
the Company from directors, officers or employees of the Company or any of
its Subsidiaries or their authorized representatives upon the death,
disability or termination of employment of such employees, in an aggregate
amount not to exceed $750,000 in any calendar year; (5) Investments in
securities not constituting cash or Cash Equivalents and received in
connection with an Asset Sale made pursuant to Section 4.15; and (6)
payments made in connection with the application of the net proceeds of the
Recapitalization. In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date in accordance with clause (iii)
of the immediately preceding paragraph, amounts expended pursuant to
clauses (1), (2) and (4) shall be included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment complies with the Indenture and setting forth in
reasonable detail the basis upon which the required calculations were
computed, which calculations may be based upon the Company's latest
available internal quarterly financial statements.
SECTION 4.11. Limitations on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any
transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its
Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on
an arm's-length basis from a Person that is not an Affiliate of the Company
or such Restricted Subsidiary. All Affiliate Transactions (and each series
of related Affiliate Transactions which are similar or part of a common
plan) involving aggregate payments or other property with a fair market
value in excess of $2.5 million shall be approved by the Board of Directors
of the Company or such Restricted Subsidiary, as the case may be, such
approval to be evidenced by a Board Resolution stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company
enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) that involves an aggregate fair
market value of more than $5.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof,
obtain a favorable opinion as to the fairness of such transaction or series
of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to
(i) reasonable fees and compensation paid to and indemnity provided on
behalf of, officers, directors, employees or consultants of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions
exclusively between or among the Company and any of its Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by the Indenture;
(iii) Restricted Payments permitted by the Indenture; (iv) payments made
pursuant to the Management Agreement; (v) loans and advances (or guarantees
of third party loans) to officers or employees of the Company or any of its
Restricted Subsidiaries in the ordinary course of business not to exceed
$750,000 at any time outstanding; (vi) any employment agreement, collective
bargaining agreement, employee benefit plan, related trust agreement,
indemnification agreement, benefit plan or similar plan (including
arrangements made with respect to bonuses) for the benefit of directors,
officers or employees of the Company or any of its Restricted Subsidiaries
entered into in the ordinary course of business; and (vii) the transactions
and payments contemplated by any agreement as in effect as of the Issue
Date (including without limitation, the Merger Agreement and the
Stockholders' Agreement).
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect
to, or otherwise become responsible for payment of (collectively, "incur")
any Indebtedness (other than Permitted Indebtedness); provided, however,
that if no Default or Event of Default shall have occurred and be
continuing at the time of or as a consequence of the incurrence of any such
Indebtedness, the Company may incur Indebtedness (including, without
limitation, Acquired Indebtedness) and Subsidiaries of the Company may
incur Acquired Indebtedness, in each case if on the date of the incurrence
of such Indebtedness, after giving effect to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than (w)
2.0 to 1.0 if the date of such incurrence is prior to March 1, 1999, or (x)
2.25 to 1.0, if the date of such incurrence is on or after March 1, 1999
and prior to March 1, 2001, or (y) 2.5 to 1.0, if the date of such
incurrence is on or after March 1, 2001.
(b) For the purposes of determining compliance with this Section
4.12, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness or is otherwise
entitled to be incurred pursuant to this Section 4.12, the Company shall,
in its sole discretion, classify such item of Indebtedness in any manner
that complies with this Section 4.12 and such items of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest and the
accretion of accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.12.
(c) Neither the Company nor any Guarantor will incur any
Indebtedness which by its terms (or by the terms of any agreement governing
such Indebtedness) is subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor, as the case may be, unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate in right of payment
to the Notes or the Guarantee (as defined in Section 4.19) pursuant to
subordination provisions that are substantively identical to the
subordination provisions of such Indebtedness (or such agreement) that are
most favorable to the holders of any other Indebtedness of the Company or
such Guarantor, as the case may be.
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to
(a) pay dividends or make any other distributions on or in respect of its
Capital Stock; (b) make loans or advances or to pay any Indebtedness or
other obligation owed to the Company or any other Restricted Subsidiary of
the Company; or (c) transfer any of its property or assets to the Company
or any other Restricted Subsidiary of the Company, except for such
encumbrances or restrictions existing under or by reason of: (1)
applicable law; (2) this Indenture; (3) customary non-assignment provisions
of any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or
the properties or assets of the Person so acquired (including, but not
limited to, such Person's direct and indirect Subsidiaries); (5) agreements
existing on the Issue Date to the extent and in the manner such agreements
are in effect on the Issue Date; (6) an agreement entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets
of a Restricted Subsidiary or an agreement entered into for the sale of
specified assets (in either case, so long as such encumbrance or
restriction, by its terms, terminates on the earlier of the termination of
such agreement or the consummation of such agreement and so long as such
restriction applies only to the Capital Stock or assets to be sold); (7)
the Credit Agreement; (8) an agreement governing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4), (5) or (7) above; provided,
however, that the provisions relating to such encumbrance or restriction
contained in any such Indebtedness are no less favorable to the Company in
any material respect as determined by the Board of Directors of the Company
in their reasonable and good faith judgment than the provisions relating to
such encumbrance or restriction contained in agreements referred to in such
clause (2), (4) or (5); (9) any security or pledge agreements, leases or
options (or similar agreements) containing customary restrictions on
transfers of the assets encumbered thereby or leased or subject to option
or on the transfer or subletting of the leasehold interest represented
thereby; or (10) any encumbrances or restrictions imposed by any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of contracts, instruments or
obligations referred to in clauses (1) through (9); provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of
the Company, no more restrictive with respect to such encumbrances or
restrictions than those contained in such contracts, instruments or
obligations prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
SECTION 4.14. Change of Control.
(a) Upon a Change of Control, each Holder will have the right to
require the Company to purchase all or a portion of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer"), at a
purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the date of purchase.
(b) Within 30 days following the date upon which a Change of
Control occurs, the Company shall send, by first class mail, a notice to
each Holder, with a copy to the Trustee, which notice shall govern the
terms of the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
Section 4.14 of this Indenture and that all Notes validly tendered and
not withdrawn will be accepted for payment and that the Change of
Control Offer shall remain open for such period as is required by law;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no earlier
than 30 days nor later than 45 days from the date such notice is
mailed, other than as may be required by law) (the "Change of Control
Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will 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 Paying Agent and Registrar for the Notes
at the address specified in the notice prior to the close of business
on the third Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the second Business Day
prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have
such Note purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; provided, however, that each Note
purchased and each new Note issued shall be in a principal amount of
$1,000 or integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change
of Control.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the purchase price plus accrued and unpaid interest, if any, of all
Notes so tendered and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Notes so accepted payment in an amount equal to the
purchase price plus accrued and unpaid interest, if any, and the Trustee
shall promptly authenticate and mail to such Holders new Notes equal in
principal amount to any unpurchased portion of the Notes surrendered. Any
Notes not so accepted shall be promptly mailed by the Company to the Holder
thereof. For purposes of this Section 4.14, the Trustee shall act as the
Paying Agent.
Neither the Board of Directors of the Company nor the Trustee may
waive provisions of this Section 4.14 relating to the Company's obligations
to make a Change of Control Offer.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the Company
shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations relating to such Change of
Control Offer by virtue thereof.
SECTION 4.15. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company
or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the assets sold or otherwise disposed of (as determined in
good faith by the Company's Board of Directors); (ii) at least 75% of the
consideration received by the Company or the Restricted Subsidiary, as the
case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and is received at the time of such disposition; and (iii) upon
the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such
Asset Sale within 360 days of receipt thereof either (A) to prepay any
Indebtedness ranking at least pari passu with the Notes (including amounts
under the Credit Agreement) and, in the case of any such Indebtedness under
any revolving credit facility, effect a permanent reduction in the
availability under such revolving credit facility, (B) to make an
investment in properties and assets that replace the properties and assets
that were the subject of such Asset Sale or in properties and assets that
will be used in the business of the Company and its Subsidiaries as
existing on the Issue Date or in businesses reasonably related thereto
("Replacement Assets"), or (C) a combination of prepayment and investment
permitted by the foregoing clauses (iii)(A) and (iii)(B). On the 361st day
after an Asset Sale or such earlier date, if any, as the Board of Directors
of the Company or of such Restricted Subsidiary determines not to apply the
Net Cash Proceeds relating to such Asset Sale as set forth in clauses
(iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a
"Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the
next preceding sentence (each a "Net Proceeds Offer Amount") shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata
basis, that amount of Notes equal to the Net Proceeds Offer Amount at a
price equal to 100% of the principal amount of the Notes to be purchased,
plus accrued and unpaid interest thereon, if any, to the date of purchase;
provided, however, that if at any time any non-cash consideration received
by the Company or any Restricted Subsidiary of the Company, as the case may
be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect
to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash
Proceeds thereof shall be applied in accordance with this covenant. The
Company may defer any Net Proceeds Offer until there is an aggregate
unutilized Net Proceeds Offer Amount equal to or in excess of $5.0 million
resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of
$5.0 million, shall be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Article Five,
the successor corporation shall be deemed to have sold the properties and
assets of the Company and its Restricted Subsidiaries not so transferred
for purposes of this Section 4.15, and shall comply with the provisions of
this Section 4.15 with respect to such deemed sale as if it were an Asset
Sale. In addition, the fair market value of such properties and assets of
the Company or its Restricted Subsidiaries deemed to be sold shall be
deemed to be Net Cash Proceeds for purposes of this Section 4.15.
(b) Notwithstanding Section 4.15(a), the Company and its
Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 75% of
the consideration for such Asset Sale constitutes Replacement Assets and
(ii) such Asset Sale is for fair market value; provided that any
consideration not constituting Replacement Assets received by the Company
and its Restricted Subsidiaries in connection with any Asset Sale permitted
to be consummated under this paragraph shall constitute Net Cash Proceeds
subject to the provisions of Section 4.15(a).
(c) Subject to the deferral of the Net Proceeds Offer contained
in clause (a) above, each notice of a Net Proceeds Offer will be mailed to
the record Holders as shown on the register of Holders within 25 days
following the Net Proceeds Offer Trigger Date, with a copy to the Trustee.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Net Proceeds Offer and shall
state the following terms:
(i) that the Net Proceeds Offer is being made pursuant
to this Section 4.15, that all Notes tendered will be accepted
for payment; provided, however, that if the aggregate principal
amount of Notes tendered in a Net Proceeds Offer plus accrued
interest at the expiration of such offer exceeds the aggregate
amount of the Net Proceeds Offer, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or multiples thereof shall be purchased)
and that the Net Proceeds Offer shall remain open for such period
as is required by law;
(ii) the purchase price (including the amount of
accrued interest) and the Net Proceeds Offer Payment Date (which
shall be not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date and which shall be at
least five Business Days after the Trustee receives notice
thereof from the Company);
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the
Net Proceeds Offer shall cease to accrue interest after the Net
Proceeds Offer Payment Date;
(v) that Holders electing to have a Note purchased
pursuant to a Net Proceeds Offer will 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 Paying
Agent at the address specified in the notice prior to the close
of business on the third Business Day prior to the Net Proceeds
Offer Payment Date;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the second
Business Day prior to the Net Proceeds Offer Payment Date, a
telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes the
Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Note purchased; and
(vii) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered; provided, however,
that each Note purchased and each new Note issued shall be in an
original principal amount of $1,000 or integral multiples
thereof;
On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Notes or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued and unpaid interest, if any, of all Notes to be
purchased and (iii) deliver to the Trustee Notes so accepted together with
an Officers' Certificate stating the Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an amount equal to the purchase
price plus accrued and unpaid interest, if any. For purposes of this
Section 4.15, the Trustee shall act as the Paying Agent. The Trustee shall
promptly authenticate and mail to such Holders new Notes equal in principal
amount to any unpurchased portion of the Notes surrendered. Upon the
payment of the purchase price for the Notes accepted for purchase, the
Trustee shall return the Notes purchased to the Company for cancellation.
Any monies remaining after the purchase of Notes pursuant to a Net Proceeds
Offer shall be returned within three Business Days by the Trustee to the
Company except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven. For purposes of this Section 4.15, the Trustee
shall act as the Paying agent.
To the extent the aggregate amount of the Notes tendered pursuant
to any Net Proceeds Offer is less than the Net Proceeds Offer Amount, the
Company may use such deficiency for general corporate purposes. Upon
completion of such offer to purchase, the Net Proceeds Offer Amount shall
be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Net Proceeds Offer.
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.15, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed
to have breached its obligations under the provisions of this Section 4.15
by virtue thereof.
SECTION 4.16. Limitation on Liens.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or permit or suffer to exist any Liens of any kind against or upon any
property or assets of the Company or any of its Restricted Subsidiaries
whether owned on the Issue Date or acquired after the Issue Date, or any
proceeds therefrom, or assign or otherwise convey any right to receive
income or profits therefrom unless (i) in the case of Liens securing
Indebtedness that is expressly subordinate or junior in right of payment to
the Notes, the Notes are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens and (ii) in all other
cases, the Notes are equally and ratably secured, except for (A) Liens
existing as of the Issue Date to the extent and in the manner such Liens
are in effect on the Issue Date; (B) Liens securing obligations under the
Credit Agreement; (C) Liens securing the Notes; (D) Liens of the Company or
a Restricted Subsidiary of the Company on assets of any Subsidiary of the
Company; (E) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under
this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens (A) are no
less favorable to the Holders and are not more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced and (B) do not extend to or cover any property or assets
of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and (F) Permitted Liens.
SECTION 4.17. Conduct of Business.
The Company and its Restricted Subsidiaries shall not engage in
any businesses which are not the same, similar, reasonably related,
ancillary or complementary to the businesses in which the Company and its
Restricted Subsidiaries are engaged on the Issue Date.
SECTION 4.18. Limitation on Preferred Stock of
Restricted Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or to a Wholly
Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company) to
own any Preferred Stock of any Restricted Subsidiary of the Company.
Notwithstanding the foregoing, nothing in this Section 4.18 will prohibit
the ownership of Preferred Stock issued by a person prior to the time (A)
such person becomes a Restricted Subsidiary of the Company, (B) such person
merges with or into a Restricted Subsidiary of the Company or (C) a
Restricted Subsidiary of the Company merges with or into such person;
provided that such Preferred Stock was not issued by such person in
anticipation of a transaction contemplated by subclause (A), (B) or (C)
above.
SECTION 4.19. Limitation of Guarantees by Restricted
Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, by way of the pledge of any intercompany note or
otherwise, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Restricted
Subsidiary (other than Indebtedness incurred under the Credit Agreement),
unless such Restricted Subsidiary executes and delivers a supplemental
indenture to the Indenture, providing a guarantee of payment of the Notes
by such Restricted Subsidiary (the "Guarantee").
Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any
further action required on the part of the Trustee or any Holder, upon:
(i) the unconditional release of such Restricted Subsidiary from its
liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to the preceding paragraph;
or (ii) any sale or other disposition (by merger or otherwise) to any
Person which is not a Restricted Subsidiary of the Company of all of the
Company's Capital Stock in, or all or substantially all of the assets of,
such Restricted Subsidiary; provided that (a) such sale or disposition of
such Capital Stock or assets is otherwise in compliance with the terms of
this Indenture and (b) such assumption, guarantee or other liability of
such Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of
Assets.
(a) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or
sell, assign, transfer, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the
Company's assets (determined on a consolidated basis for the Company and
the Company's Restricted Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless: (i) either (1) the
Company shall be the surviving or continuing corporation or (2) the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets
of the Company and of the Company's Restricted Subsidiaries substantially
as an entirety (the "Surviving Entity") (x) shall be a corporation
organized and validly existing under the laws of the United States or any
State thereof or the District of Columbia and (y) shall expressly assume,
by supplemental indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest on all of
the Notes and the performance of every covenant of the Notes, the Indenture
and the Registration Rights Agreement on the part of the Company to be
performed or observed; (ii) immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
such transaction), the Company or such Surviving Entity, as the case may
be, shall be able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (i)(2)(y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection
with or in respect of the transaction), no Default or Event of Default
shall have occurred or be continuing; and (iv) the Company or the Surviving
Entity shall have delivered to the Trustee an officers' certificate and an
opinion of counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to
such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of
one or more Restricted Subsidiaries of the Company the Capital Stock of
which constitutes all or substantially all of the properties and assets of
the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.
Notwithstanding clauses (a) (ii), (iii) and (iv), (A) any
Restricted Subsidiary may consolidate with, merge into or transfer all or
part of its properties and assets to the Company or another Restricted
Subsidiary of the Company and (B) the Company may merge with an Affiliate
incorporated solely for the purpose of reincorporating the Company in
another jurisdiction.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with
Section 5.01, in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture and the Notes with the same effect as if such
surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default":
(1) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30
days;
(2) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer);
(3) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 60 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a
default with respect to Article Five, which will constitute an Event
of Default with such notice requirement but without such passage of
time requirement);
(4) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
of the Company and such failure continues for a period of 20 days or
more, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 20 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated,
aggregates $5.0 million or more at any time;
(5) one or more judgments in an aggregate amount in excess of
$5.0 million shall have been rendered against the Company or any of
its Significant Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable;
(6) the Company or any of its Significant Subsidiaries pursuant
to or under or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(d) makes a general assignment for the benefit of its
creditors; or
(e) shall generally not pay its debts when such debts
become due or shall admit in writing its inability to pay its
debts generally; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding,
(b) appoints a Custodian of the Company or any Significant
Subsidiary of the Company for all or substantially all of its
properties, or
(c) orders the liquidation of the Company or any
Significant Subsidiary of the Company.
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.01(a)(6) or (7) with respect to the Company) shall
occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes may declare the principal of and
accrued interest on all the Notes to be due and payable by notice in
writing to the Company and the Trustee specifying the respective Event of
Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.01(a)(6) or
(7) occurs and is continuing with respect to the Company, all unpaid
principal of and premium, if any, and accrued and unpaid interest on all of
the outstanding 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 Holder.
(c) At any time after a declaration of acceleration with respect
to the Notes as described in Section 6.02(a) or (b), the Holders of a
majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict
with any judgment or decree, (ii) if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration, (iii) to the extent the
payment of such interest is lawful, interest (at the same rate specified in
the Notes) on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has been
paid, (iv) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances and
(v) in the event of the cure or waiver of an Event of Default of the type
described in Section 6.01(a)(6) or (7), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default
has been cured or waived. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of, premium, if any, or accrued and unpaid
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes
may be entered by the Trustee 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 Noteholder 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 to
the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may, on
behalf of the Holders of all the Notes, waive any existing Default or Event
of Default and its consequences under this Indenture, except a Default or
Event of Default specified in Section 6.01(1) or (2) or in respect of any
provision hereof which cannot be modified or amended without the consent of
the Holder so affected pursuant to Section 9.02. When a Default or Event
of Default is so waived, it shall be deemed cured and shall cease to exist.
This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and
such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it, including, without
limitation, any remedies provided for in Section 6.03. Subject to
Section 7.01, however, the Trustee may, in its discretion, refuse to follow
any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Holder (it being understood that the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders) or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action
deemed proper by the Trustee, in its discretion, that is not inconsistent
with such direction.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture
or the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(3) such Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be incurred in compliance
with such request which is satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 25 days
after receipt of the request and the offer of satisfactory indemnity
or security; and
(5) during such 25-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of, premium and interest on a
Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 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 of principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest at the
rate set forth in the Notes and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, its agents and counsel)
and the Holders allowed in any judicial proceedings relating to the Company
or any other obligor upon the Notes, any of their respective creditors or
any of their respective property, and shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same, and any custodian in any such
judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. The Company's payment
obligations under this Section 6.09 shall be secured in accordance with the
provisions of Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest, respectively;
and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by a Holder or Holders of more than 10% in aggregate principal amount of
the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent Person would exercise or use under the
circumstances in the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no duties,
covenants, responsibilities or obligations shall be implied in this
Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
(including Officers' Certificates) or opinions (including Opinions of
Counsel) furnished to the Trustee and conforming to the requirements
of this Indenture. However, as to any certificates or opinions which
are required by any provision of this Indenture to be delivered or
provided to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
(g) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall not be responsible
for the application of any money by any Paying Agent other than the
Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting
or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion
of Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for and shall be fully protected in respect of any
action it takes or omits to take in good faith in reliance on such
Officers' Certificate, or an Opinion of Counsel or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith that it reasonably believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate (including
any Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, 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, upon reasonable notice to
the Company, to examine the books, records, and premises of the Company,
personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of the Notes 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 may be incurred by it in compliance with such request,
order or direction.
(g) 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 with 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.
(h) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(i) Except with respect to Section 4.01, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in
Section 4. In addition, the Trustee shall be deemed not to have knowledge
of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Section 6.01(1) or (2) or Section 4.01 or (ii) any
Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Restricted or Unrestricted Subsidiary, or their respective Affiliates, with
the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and 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 in this Indenture or the Notes
other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if the Trustee has knowledge of such Default or Event of Default, the
Trustee shall mail to each Holder notice of the uncured Default or Event of
Default within 60 days after such Default or Event of Default occurs.
Except in the case of a Default or an Event of Default in the payment of
interest or principal of, premium or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change of
Control Payment Date pursuant to a Change of Control Offer or on the Net
Proceeds Offer Payment Date pursuant to a Net Proceeds Offer and, except in
the case of a failure to comply with Article Five, the Trustee may withhold
the notice if and so long as its Board of Directors, the executive
committee of its Board of Directors or a committee of its Board of
Directors and/or Trust Officers in good faith determines that withholding
the notice is in the interest of the Holders. The Trustee shall not be
deemed to have knowledge of a Default or Event of Default other than (i)
any Event of Default occurring pursuant to Sections 6.01(1) or 6.01(2); or
(ii) any Default or Event of Default of which a Trust Officer shall have
received written notification or obtained actual knowledge. As used
herein, the term "actual knowledge" means the actual fact or statement of
knowing, without any duty to make any investigation with regard thereto.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of each year beginning with May 15,
1998, the Trustee shall, to the extent that any of the events described in
TIA Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders
shall be mailed to the Company and filed with the SEC and each stock
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange, and if the Notes are so listed, the Trustee
shall comply with TIA Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as may be agreed upon by
the Company and the Trustee. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses, disbursements and advances incurred or made by it in
connection with the performance of its duties and the discharge of its
obligations under this Indenture. Such expenses shall include the
reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless
against, any loss, liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful
misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs
and expenses of defending themselves against or investigating any claim or
liability in connection with the exercise or performance of any of the
Trustee's rights, powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee or any of its
agents, employees, officers, stockholders and directors for which it may
seek indemnity. At the Trustee's sole discretion, the Company shall defend
the claim and the Trustee shall cooperate and may participate in the
defense; provided that any settlement of a claim shall be approved in
writing by the Trustee. Alternatively, the Trustee may at its option have
separate counsel of its own choosing and the Company shall pay the
reasonable fees and expenses of one such separate counsel; provided,
however, that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee and its agents, employees,
officers, stockholders and directors subject to the claim in connection
with such defense as reasonably determined by the Trustee. The Company
need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets
or money held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under
any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing at
least 30 days in advance. The Holders of a majority in principal amount of
the outstanding Notes may remove the Trustee by so notifying the Company
and the Trustee and may appoint a successor Trustee. A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only with the successor Trustee's acceptance of appointment as
provided in this Section. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder
of such event and shall promptly appoint a successor Trustee. Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after
that, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in
Section 7.07, 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. A successor Trustee
shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in aggregate principal amount of the
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall, if such resulting, surviving or transferee
corporation is otherwise eligible hereunder, be the successor Trustee;
provided, however, that such corporation shall be otherwise qualified and
eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (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
$100,000,000 as set forth in its most recent published annual report of
condition and have a Corporate Trust Office in the City of New York. In
addition, if the Trustee is a corporation included in a bank holding
company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). The Trustee
shall comply with TIA Section 310(b); provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other notes, or certificates of interest or
participation in other notes, of the Company are outstanding, if the require-
ments for such exclusion set forth in TIA section 310(b)(1) are met. The
provisions of TIA Section 310 shall apply to the Company and any other obligor
of the Notes.
SECTION 7.11. Preferential Collection of
Claims Against the Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company and any
other obligor of the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's
Obligations.
The Company may terminate its obligations under the Notes and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Notes previously authenticated and
delivered (other than destroyed, lost or stolen Notes which have been
replaced or paid or Notes for whose payment U.S. Legal Tender has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder,
or if:
(a) either (i) pursuant to Article Three, the Company shall have
given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Notes under arrangements
satisfactory to the Trustee for the giving of such notice or (ii) all
Notes have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee,
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds in trust solely
for the benefit of the Holders for that purpose, U.S. Legal Tender in
such amount as is sufficient, in the opinion of a nationally
recognized firm of independent public accountants, without
consideration of reinvestment of such interest, to pay principal of,
premium, if any, and interest on the outstanding Notes to maturity or
redemption; provided that the Trustee shall have been irrevocably
instructed to apply such U.S. Legal Tender to the payment of said
principal, premium, if any, and interest with respect to the Notes;
(c) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company
is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for or relating to the termination of
the Company's obligations under the Notes and this Indenture have been
complied with. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under the
Credit Agreement (if then in effect) or any other agreement or
instrument then known to such counsel that binds or affects the
Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and
8.06 shall survive until the Notes are no longer outstanding pursuant to
the last paragraph of Section 2.08. After the Notes are no longer
outstanding, the Company's obligations in Sections 7.07, 8.05 and 8.06
shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
SECTION 8.02. Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option by Board Resolution of the
Board of Directors of the Company, at any time, elect to have either
paragraph (b) or (c) below be applied to all outstanding Notes upon
compliance with the conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (b), the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.03, be deemed to
have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section
8.04 hereof and the other Sections of this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions, which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Notes when such
payments are due, (ii) the Company's obligations with respect to such Notes
under Article Two and Section 4.02 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (iv) this Article Eight. Subject
to compliance with this Article Eight, the Company may exercise its option
under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
If the Company exercises its Legal Defeasance option, upon
satisfaction of the conditions set forth in Section 8.03, payment of the
Notes may not be accelerated because of an Event of Default.
(c) Upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (c), the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.03 hereof, be
released from its obligations under the covenants contained in Sections
4.08, 4.10 through 4.19 and Article Five hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of
any thereof) in connection with such covenants, but shall continue to be
deemed "outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting purposes).
For this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01(3) hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 8.03. Conditions to Legal Defeasance or
Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
(a) the Company shall have irrevocably deposited with the
Trustee, in trust, for the benefit of the Holders cash in U.S.
dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable redemption date,
as the case may be;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of the 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 Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit and the grant of any lien securing such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under the
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an opinion
of counsel to the effect that after 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.
Notwithstanding the foregoing, the opinion of counsel required by
Section 8.03(b) and (c) need not be delivered if all the Notes not
therefore delivered to the Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable on the maturity date within one
year, or (iii) are to be called for redemption within one year under
arrangement satisfactory to the Trustee for giving of notice of redemption
by such Trustee in the name, and at the expense of the Company.
SECTION 8.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender
or U.S. Government Obligations deposited with it pursuant to Article Eight,
and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Legal Tender or
U.S. Government Obligations deposited pursuant to Section 8.03 hereof or
the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
Company's request any U.S. Legal Tender or U.S. Government Obligations held
by it as provided in Section 8.03 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.05. Repayment to the Company.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date of payment of such
principal and interest; provided that the Trustee or such Paying Agent,
before being required to make any payment, may at the expense of the
Company, cause to be published once in a newspaper of general circulation
in the City of New York or mail to each Holder entitled to such money
notice that such money remains unclaimed and that after a date specified
therein which shall be at least 30 days from the date of such publication
or mailing any unclaimed balance of such money then remaining will be
repaid to the Company. After payment to the Company, Holders entitled to
such money must look to the Company for payment as general creditors unless
an applicable law designates another Person.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Article Eight 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 Article Eight until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or
U.S. Government Obligations in accordance with Article Eight; provided that
if the Company has made any payment of interest on or principal of any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such
payment from the U.S. Legal Tender or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, any Guarantor
and the Trustee, together, may amend or supplement this Indenture or the
Notes without the consent of any Holders:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(5) to make any other change that would provide any additional
benefit or rights to the Holders or that does not adversely affect in
any material respect the rights of any Holders hereunder;
(6) to provide for issuance of the Exchange Notes, which will
have terms substantially identical in all material respects to the
Initial Notes (except that the transfer restrictions contained in the
Initial Notes will be modified or eliminated, as appropriate), and
which will be treated together with any outstanding Initial Notes, as
a single issue of securities; or
(7) to make any other change that does not, in the opinion of
the Trustee, adversely affect in any material respect the rights of
any Holders hereunder;
provided, however, that the Company has delivered to the Trustee an Opinion
of Counsel and an Officers' Certificate, each stating that such amendment
or supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
(a) Subject to Section 6.07, the Company, when authorized by a
Board Resolution, any Guarantor and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Notes, may amend or supplement this
Indenture or the Notes, without notice to any other Holders. Subject to
Section 6.07, the Holder or Holders of a majority in aggregate principal
amount of the outstanding Notes may waive compliance by the Company with
any provision of this Indenture or the Notes without notice to any other
Holder. No amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, shall, without the consent of each Holder of each Note
affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing
the time for payment of interest, if any, including defaulted
interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor;
(4) make any Notes payable in money other than that stated in
the Notes;
(5) make any change in provisions of this Indenture protecting
the right of each Holder to receive payment of principal and interest
on such Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting Holders of a majority in principal
amount of Notes to waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with
respect thereto after a Change of Control has occurred or the subject
Asset Sale has been consummated; or
(7) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to
the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is
not made on any Note. Subject to the following paragraph, any such Holder
or subsequent Holder may revoke the consent as to his Note or portion of
his Note by notice to the Trustee or the Company received before the date
on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver
(at which time such amendment, supplement or waiver shall become
effective).
The Company may, but shall not be obligated to, fix such record
date as it may select for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver. If a record date is
fixed, then notwithstanding the last sentence of 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
revoke any consent previously given, 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.
After an amendment or waiver becomes effective, it shall bind
every Noteholder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver 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 about
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.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided, however, that the Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate each
stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor unconditionally, jointly and severally, guarantees
to each Holder of a Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, that: (i) the principal of and
interest on the Notes will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration or
otherwise and interest on the overdue principal, if any, and interest on
any interest, to the extent lawful, of the Notes and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, subject to any applicable grace period, whether
at stated maturity, by acceleration or otherwise. Each Guarantor agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes, this
Indenture and in this Guarantee. If any Holder or the Trustee is required
by any court or otherwise to return to the Company, any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation
to the Company or any Guarantor, any amount paid by the Company or any
Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of
such obligations as provided in Article Six, such obligations (whether or
not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
SECTION 10.02. Release of a Guarantor.
Upon (i) the unconditional release of a Guarantor from its
liability in respect of the Indebtedness in connection with which its
Guarantee was executed and delivered pursuant to Section 4.19 or (ii) the
sale or disposition (whether by merger, stock purchase, asset sale or
otherwise) of a Guarantor (or all or substantially all its assets) to an
entity which is not a Restricted Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this Indenture,
such Guarantor shall be deemed released from all obligations under this
Article Ten without any further action required on the part of the Trustee
or any Holder; provided, however, that any such termination shall occur
only to the extent that all obligations of such Guarantor under the other
Indebtedness so guaranteed and all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, such
Indebtedness of the Company or the Guarantor shall also terminate upon such
release, sale or transfer.
The Trustee shall execute an appropriate instrument delivered by
the Company evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate and Opinion of Counsel
certifying as to the compliance with this Section 10.02. Any Guarantor not
so released remains liable for the full amount of principal of and interest
on the Notes as provided in this Article Ten.
SECTION 10.03. Limitation of a Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by
such Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of
such Guarantor under the Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities
of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to
Section 10.05, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.04. Guarantors May Consolidate, etc., on
Certain Terms.
(a) Nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor that is a Wholly Owned Restricted Subsidiary
of the Company or shall prevent any sale of assets or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety, to
the Company or another Guarantor that is a Wholly Owned Restricted
Subsidiary of the Company. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any
force or effect.
(b) Except as set forth in Article Four and Article Five hereof,
nothing contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of a Guarantor with or into a corporation or
corporations other than the Company or another Guarantor (whether or not
affiliated with the Guarantor) or shall prevent any sale of assets or
conveyance of the property of a Guarantor as an entirety or substantially
as an entirety, to a corporation or corporations other than the Company or
another Guarantor (whether or not affiliated with the Guarantor); provided,
however, that, subject to Sections 10.02 and 10.04(a), (i) immediately
after such transaction and giving effect thereto, such transaction does not
(a) violate any covenants set forth herein or (b) result in a Default or
Event of Default under this Indenture that is continuing, (ii) upon any
such consolidation, merger, sale or conveyance, the Guarantee of such
Guarantor set forth in this Article Ten, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, shall be expressly assumed (in
the event that the Guarantor is not the surviving corporation in the
merger), by supplemental indenture satisfactory in form to the Trustee and
in compliance with Section 9.06, executed and delivered to the Trustee, by
the corporation formed by such consolidation, or into which the Guarantor
shall have merged, or by the corporation that shall have acquired such
property, and (iii) in the event that such Guarantor is not the surviving
corporation in the merger, such surviving corporation shall be a
corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia. In the case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture executed and delivered to
the Trustee and satisfactory in form to the Trustee of 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.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from
all other Guarantors in a pro rata amount based on the Adjusted Net Assets
of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other Guarantor's
obligations with respect to the Guarantee. "Adjusted Net Assets" of such
Guarantor at any date shall mean the lesser of the amount by which (x) the
fair value of the property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), but excluding liabilities under the Guarantee, of
such Guarantor at such date and (y) the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Guarantor on its debts
(after giving effect to all other fixed and contingent liabilities incurred
or assumed on such date and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding debt in respect of the Guarantee
of such Guarantor, as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
Until all Obligations under this Indenture are paid in full each
Guarantor irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under
the Guarantees and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder of Notes against the
Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim or other rights. If any amount shall be paid to
any Guarantor in violation of the preceding sentence and the Notes shall
not have been paid in full, such amount shall have been deemed to have been
paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.06 is knowingly
made in contemplation of such benefits.
SECTION 10.07. Execution of Guarantee.
To evidence their guarantee to the Holders set forth in this
Article Ten, each Guarantor which is required pursuant to Section 4.19 to
execute and deliver a supplemental indenture agree to execute at such time
a Guarantee in substantially the form included in Exhibit F, which shall be
endorsed on each Note ordered to be authenticated and delivered by the
Trustee. Each Guarantor agrees that its Guarantee set forth in this
Article Ten shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by two Officers, or
an Officer and an Assistant Secretary or one Officer shall sign and one
Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to
such Guarantee prior to the authentication of the Note on which it is
endorsed, and the delivery of such Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signatures upon the Guarantees
may be by manual or facsimile signature of such officers and may be
imprinted or otherwise reproduced on the Guarantees, and in case any such
officer who shall have signed the Guarantees shall cease to be such officer
before the Note on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company,
such Note nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Guarantees had not ceased to be such
officer of the Guarantor.
SECTION 10.08. Waiver of Stay, Extension or Usury
Laws.
Each Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive each such
Guarantor from performing its Guarantee as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) each such Guarantor expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any
provision of this Indenture modifies or excludes any provision of the TIA
that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by
hand delivery, by telex, by telecopier, by reputable overnight delivery
service, or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if to the Company or any Guarantor:
UNIVERSAL HOSPITAL SERVICES, INC.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
if to the Trustee:
FIRST TRUST NATIONAL ASSOCIATION
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Administration
The Company and the Trustee by written notice to each other may
designate additional or different addresses for notices. Any notice or
communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if faxed; one (1)
business day after mailing by reputable overnight courier, and five (5)
calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to
him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder 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 11.03. Communications 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 any other Person shall have the
protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company or any Guarantor
to the Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all
conditions precedent to be performed by the Company, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed
action have been complied with;
provided, however, that, in the case of such request or application as to
which the furnishing of such certificates or opinions is otherwise
expressly provided for by any provision of this Indenture, no additional
certificate or opinion need be furnished.
SECTION 11.05 Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the
Officers' Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in
New York, New York, Minneapolis, Minnesota, or at such place of payment are
not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES, IF ANY, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
SECTION 11.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any Guarantor shall
not have any liability for any obligations of the Company or any Guarantor
under the Notes, the Guarantees, if any, or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creations. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of any Guarantor in this
Indenture and its Guarantee shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of
the provisions hereof shall be enforceable to the full extent permitted by
law.
SECTION 11.14. Independence of Covenants.
All covenants and agreements in this Indenture and the Notes
shall be given independent effect so that if any particular action or
condition is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or otherwise be within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
[Remainder of Page Intentionally Left Blank]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
UNIVERSAL HOSPITAL SERVICES, INC.,
as Issuer
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: President and CEO
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF SERIES A NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) OR
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (2) AGREES THAT IT
WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT, (C) INSIDE
THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1),(2),(3) or (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS
AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATIONS S UNDER THE ACT.
CUSIP No.
UNIVERSAL HOSPITAL SERVICES, INC.
10 1/4% Senior Note due 2008, Series A
No. $
UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota corporation (the
"Company"), for value received, promises to pay to CEDE & CO. or registered
assigns, the principal sum of Dollars, on
March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if
set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated: February 25, 1998 UNIVERSAL HOSPITAL SERVICES, INC.
By:____________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 10 1/4% Senior Notes due 2008, Series A,
referred to in the within-mentioned Indenture.
Dated: February 25, 1998
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Authorized Signatory
(REVERSE OF NOTE)
10 1/4% Senior Note due 2008, Series A
1. Interest. UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on the
Notes will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from February 25, 1998. The Company will
pay interest semi-annually in arrears on each March 1 and September 1
(each, an "Interest Payment Date") and at stated maturity, commencing on
September 1, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by
the Notes and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The
Company shall pay principal, premium and interest in money of the United
States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay
principal, premium and interest by its check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. FIRST TRUST NATIONAL ASSOCIATION
(the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of February 25, 1998 (the "Indenture"), between the Company and
the Trustee. This Note is one of a duly authorized issue of Notes of the
Company designated as its 10 1/4% Senior Notes due 2008, Series A (the
"Initial Notes"), limited (except as otherwise provided in the Indenture)
in aggregate principal amount to $180,000,000, which may be issued under
the Indenture; provided the principal amount of Initial Notes issued on the
Issue Date will not exceed $100,000,000. The Notes include the Initial
Notes, the Private Exchange Notes (as defined in the Registration Rights
Agreement) and the Exchange Notes, as defined below, issued in exchange for
the Initial Notes pursuant to the Registration Rights Agreement. The
Initial Notes, the Private Exchange Notes and the Exchange Notes are
treated as a single class of securities under the Indenture. Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
unless otherwise defined herein. 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) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and Holders
of Notes are referred to the Indenture and the TIA for a statement of them.
The Notes are general unsecured obligations of the Company.
5. (a) Redemption. The Notes will be redeemable at the Company's
option, in whole at any time or in part from time to time, on and after
March 1, 2003, upon not less than 30 nor more than 60 days' notice, at the
following redemption prices (expressed as percentages of principal amount
thereof) if redeemed during the twelve-month period commencing on March 1
of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
2003 . . . . . . . . . . . 105.125%
2004 . . . . . . . . . . . 103.844%
2005 . . . . . . . . . . . 102.563%
2006 . . . . . . . . . . . 101.281%
2007 and thereafter . . . 100.000%
(b) Optional Redemption Upon Equity Offerings. At any time, or
from time to time, on or prior to March 1, 2001, the Company may, at its
option, use the net cash proceeds of one or more Equity Offerings (as
defined below) to redeem up to 35% of the aggregate principal amount of
Notes originally issued at a redemption price equal to 110.250% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the date of redemption; provided that at least 65% of the principal
amount of Notes originally issued remains outstanding immediately after any
such redemption. In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such redemption not
more than 120 days after the consummation of any such Equity Offering.
As used in the preceding paragraph, "Equity Offering" means a
public or private offering of Qualified Capital Stock of the Company.
(c) Optional Redemption Upon a Change of Control. In addition
to the rights set forth above and the obligations set forth below, the
Notes will be subject to redemption, at the option of the Company, in whole
or in part, at any time prior to March 1, 2003 and within 180 days after a
Change of Control on not less than 30 nor more than 60 days' prior notice
to each Holder of Notes to be redeemed, in principal amounts of $1,000 or
integral multiples thereof, at a redemption price equal to the sum of (i)
the principal amount thereof plus (ii) accrued and unpaid interest, if any,
to the redemption date plus (iii) the Applicable Premium.
6. Notice of Redemption. Notice of redemption will be mailed
at least 30 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 may be redeemed in part.
7. Offers to Purchase. Sections 4.14 and 4.15 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and
upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make
an offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer or exchange of
Notes in accordance with this Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as required by law or
as permitted by the Indenture. The Registrar need not register the
transfer or exchange of any Notes during a period beginning 15 days before
the mailing of a redemption notice for any Notes or portions thereof
selected for redemption.
9. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of, premium and interest on the
Notes to redemption or maturity and complies with the other provisions of
this Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of, premium
and interest on the Notes).
12. Amendment; Supplement; Waiver. Subject to certain
exceptions set forth in the Indenture, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes, and
any existing Default or Event of Default or noncompliance with any
provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes.
Without consent of any Holder, the parties thereto may amend or supplement
this Indenture or the Notes to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated Notes in addition to or
in place of certificated Notes, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
13. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among
other things, incur additional Indebtedness, pay dividends or make certain
other Restricted Payments, consummate certain Asset Sales, enter into
certain transactions with Affiliates, incur Liens, impose restrictions on
the ability of a Subsidiary to pay dividends or make certain payments to
the Company and its Subsidiaries, merge or consolidate with any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of the assets of the Company. Such limitations are
subject to a number of important qualifications and exceptions. The
Company must annually report to the Trustee on compliance with such
limitations.
14. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes, the
Guarantees, if any, and the Indenture, the predecessor will be released
from those obligations.
15. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Notes may declare all the Notes to be due and
payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has been offered indemnity or
security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith
that withholding notice is in their interest.
16. Trustee Dealings with Company. 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 the Company, its Subsidiaries
or their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
18. Authentication. This Note shall not be valid until the
Trustee or authenticating agent manually signs the certificate of
authentication on this Note.
19. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. EACH OF THE HOLDERS AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS NOTE.
20. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes as a convenience to the
Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
22. Registration Rights. Pursuant to the 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 Series A Note for a 10 1/4% Senior
Note due 2008, Series B, of the Company (an "Exchange Note") which have
been registered under the Securities Act, in like principal amount and
having terms identical in all material respects as the Series A Notes. The
Holders shall be entitled to receive certain additional interest payments
in the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
23. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of this Indenture, as the same may
be amended from time to time. Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture.
24. Guarantees. This Note will be entitled to the benefits of
certain Guarantees, if any, made for the benefit of the Holders. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors,
if any, the Trustee and the Holders.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made
to: UNIVERSAL HOSPITAL SERVICES, INC., 1250 Northland Plaza, 0000 Xxxx
00xx Xxxxxx, Xxxxxxxxxxx, XX 00000-0000, Attention: Chief Executive
Officer.
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
________________________________
_______________________________________________________________
(please print or type name and address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
_______________________________________________________________
attorney to transfer the Note on the books of the Company with full power
of substitution in the premises.
Dated:_________________ ________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
Signature Guarantee: ___________________________________________________
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") covering resales
of this Note (which effectiveness shall not have been suspended or
terminated at the date of the transfer) and (ii) February 25, 2000 the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[Check One]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the
Securities Act; or
(3) ___ to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which
letter can be obtained from the Trustee); or
(4) ___ outside the United States to a "foreign purchaser" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) ___ pursuant to the exemption from registration provided by Rule
144 under the Securities Act; or
(6) ___ pursuant to an effective registration statement under the
Securities Act; or
(7) ___ pursuant to another available exemption from the
registration statement requirements of the Securities Act.
and unless the box below is checked, the undersigned confirms that such
Note is not being transferred to an "affiliate" of the Company as defined
in Rule 144 under the Securities Act (an "Affiliate"):
( ) The transferee is an Affiliate of the Company.
Unless one of the items 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
item (3), (4), (5) or (7) is checked, the Company or the Trustee may
require, prior to registering any such transfer of the Notes, in their sole
discretion, such written legal opinions, certifications (including an
investment letter in the case of box (3) or (4) and other information as
the Trustee or the Company have 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.
If none of the foregoing items are checked, the Trustee or
Registrar shall not be obligated to register this Note in the name of any
person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 2.16 of the
Indenture shall have been satisfied.
Dated:__________________ Signed:_______________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:__________________________________________
TO BE COMPLETED BY PURCHASER IF (2) 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, 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
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 4.14 or Section 4.15 of the Indenture,
state the amount: $_____________
Date:_______________ Your Signature:_________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:_______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
EXHIBIT B
CUSIP NO.
UNIVERSAL HOSPITAL SERVICES, INC.
10 1/4% Senior Note due 2008, Series B
No. 1 $
UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota corporation (the
"Company"), for value received, promises to pay to or
registered assigns, the principal sum of Dollars, on March 1,
2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if
set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated: [ ] [ ], [ ] UNIVERSAL HOSPITAL SERVICES, INC.
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 10 1/4% Senior Notes due 2008, Series B referred
to in the within-mentioned Indenture.
Dated: [ ] [ ], [ ]
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________________
Authorized Signatory
B-2
(REVERSE OF NOTE)
10 1/4% Senior Note due 2008, Series B
1. Interest. UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on the
Notes will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from February 25, 1998. The Company will
pay interest semi-annually in arrears on each March 1 and September 1
(each, an "Interest Payment Date") and at stated maturity, commencing on
September 1, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate
borne by the Notes and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding
the Interest Payment Date even if the Notes are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The
Company shall pay principal, premium and interest in money of the United
States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay
principal, premium and interest by its check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, FIRST TRUST NATIONAL
ASSOCIATION (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without
notice to the Holders. The Company or any of its Subsidiaries may, subject
to certain exceptions, act as Registrar or co-Registrar.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of February 25, 1998 (the "Indenture"), between the Company and
the Trustee. This Note is one of a duly authorized issue of Notes of the
Company designated as its 10 1/4% Senior Notes due 2008, Series B (the
"Exchange Notes"), limited (except as otherwise provided in the Indenture)
in aggregate principal amount to $180,000,000, which may be issued under
the Indenture; provided, the principal amount of Initial Notes issued on
the Issue Date shall not exceed $100,000,000. The Notes include the 10 1/4%
Senior Notes due 2008, Series A (the "Initial Notes"), the Private Exchange
Notes (as defined in the Registration Rights Agreement) and the Exchange
Notes. The Initial Notes, the Private Exchange Notes and the Exchange
Notes are treated as a single class of securities under the Indenture.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture unless otherwise defined herein. 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) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA
for a statement of them. The Notes are general unsecured obligations of the
Company.
5. (a) Redemption. The Notes will be redeemable at the
Company's option, in whole at any time or in part from time to time, on and
after March 1, 2003 at the following redemption prices (expressed as
percentages of principal amount thereof) if redeemed during the twelve-
month period commencing on March 1 of the year set forth below, plus, in
each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
2003 . . . . . . . . . . . . 105.125%
2004 . . . . . . . . . . . . 103.844%
2005 . . . . . . . . . . . . 102.563%
2006 . . . . . . . . . . . 101.281%
2007 and thereafter . . . . 100.000%
(b) Optional Redemption Upon Equity Offerings. At any time, or
from time to time, on or prior to March 1, 2001, the Company may, at its
option, use the net cash proceeds of one or more Equity Offerings (as
defined below) to redeem up to 35% of the aggregate principal amount of
Notes originally issued at a redemption price equal to 110.250% of the
principal amount of Notes to be redeemed, plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that at least 65% of
the principal amount of Notes originally issued remains outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Equity Offering, the Company shall make
such redemption not more than 120 days after the consummation of any such
Equity Offering.
As used in the preceding paragraph, "Equity Offering" means a
public or private offering of Qualified Capital Stock of the Company.
(c) Optional Redemption Upon a Change of Control. In addition
to the rights set forth above and the obligations set forth below, the
Notes will be subject to redemption, at the option of the Company, in whole
or in part, at any time prior to March 1, 2003 and within 180 days after a
Change of Control on not less than 30 nor more than 60 days' prior notice
to each Holder of Notes to be redeemed, in principal amounts of $1,000 or
integral multiples thereof, at a redemption price equal to the sum of (i)
the principal amount thereof plus (ii) accrued and unpaid interest, if any,
to the redemption date plus (iii) the Applicable Premium.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 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 may be redeemed in part.
7. Offers to Purchase. Sections 4.14 and 4.15 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and
upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make
an offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Notes in accordance with this Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as required by law or
as permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes during a period beginning 15 days before
the mailing of a redemption notice for any Notes or portions thereof
selected for redemption.
9. Persons Deemed Owners. The registered Holder of a Note shall
be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of, premium and interest on the
Notes to redemption or maturity and complies with the other provisions of
this Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of, premium
and interest on the Notes).
12. Amendment; Supplement; Waiver. Subject to certain
exceptions set forth in the Indenture, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes, and
any existing Default or Event of Default or noncompliance with any
provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes.
Without consent of any Holder, the parties thereto may amend or supplement
this Indenture or the Notes to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated Notes in addition to or
in place of certificated Notes, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
13. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among
other things, incur additional Indebtedness, pay dividends or make certain
other Restricted Payments, consummate certain Asset Sales, enter into
certain transactions with Affiliates, incur Liens, impose restrictions on
the ability of a Subsidiary to pay dividends or make certain payments to
the Company and its Subsidiaries, merge or consolidate with any other
Person, sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of the assets of the Company. Such limitations are
subject to a number of important qualifications and exceptions. The
Company must annually report to the Trustee on compliance with such
limitations.
14. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes, the
Guarantees, if any, and the Indenture, the predecessor will be released
from those obligations.
15. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Notes may declare all the Notes to be due and
payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has been offered indemnity or
Security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith
that withholding notice is in their interest.
16. Trustee Dealings with Company. 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 the Company, its Subsidiaries
or their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
18. Authentication. This Note shall not be valid until the
Trustee or authenticating agent manually signs the certificate of
authentication on this Note.
19. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. EACH OF THE HOLDERS AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
RELATING TO THIS NOTE.
20. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes as a convenience to the
Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
22. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of this Indenture, as the same may
be amended from time to time. Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture.
23. Guarantees. This Note will be entitled to the benefits of
certain Guarantees, if any, made for the benefit of the Holders. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors,
if any, the Trustee and the Holders.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made
to: UNIVERSAL HOSPITAL SERVICES, INC., 1250 Northland Plaza, 0000 Xxxx
00xx Xxxxxx, Xxxxxxxxxxx, XX 00000-0000, Attention: Chief Executive
Officer.
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
________________________________
_______________________________________________________________
(please print or type name and address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
_______________________________________________________________
attorney to transfer the Note on the books of the Company with full power
of substitution in the premises.
Dated:______________ ________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
Signature Guarantee: _________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 4.14 or Section 4.15 of the Indenture,
state the amount: $_____________
Date:______________ Your Signature:__________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:______________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTE
Any Global Note authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[ ], [ ]
First Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of 10 1/4% Senior Notes
due 2008 (the "Notes") of Universal Hospital Services, Inc. (the
"Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated February 23, 1998, relating to the Notes and
such other information as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agreed to the matters
stated on pages (i)-(iii) of the Offering Memorandum and in the section
entitled "Transfer Restrictions" of the Offering Memorandum, including the
restrictions on duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in this Indenture
relating to the Notes (as described in the Offering Memorandum) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act") and all applicable state securities laws.
3. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Notes prior to the date that
is the later of two years after the original issuance of the Notes and the
last date on which the Company or any affiliated person of the Company was
the owner of the Notes, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), (iii) inside the United States to
an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S. broker-
dealer) to the Trustee (as defined in the Indenture relating to the Notes),
a signed letter containing certain representations and agreements relating
to the restrictions on transfer of the Notes (the form of which letter can
be obtained from the Trustee), (iv) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (v) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
(if available), or (vi) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will
not transfer the Notes to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except
as permitted in the section entitled "Transfer Restrictions" of the
Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and the
Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Company, the Trustee and others are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: _______________________________
Name:
Title:
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
First Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Universal Hospital Services, Inc.
(the "Company") 10 1/4% Senior
Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Company and counsel for the Company are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: __________________________________
Authorized Signature
EXHIBIT F
GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of
this Note the cash payments in United States dollars of principal of,
premium, if any, and interest on this Note (and including Additional
Interest payable thereon) in the amounts and at the times when due and
interest on the overdue principal, premium, if any, and interest, if any,
of this Note, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture (as defined below) or the
Notes, to the Holder of this Note and the Trustee, all in accordance with
and subject to the terms and limitations of this Note, Article Ten of the
Indenture and this Guarantee. This Guarantee will become effective in
accordance with Article Ten of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Guarantee shall
not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of February 25, 1998,
between Universal Hospital Services, Inc., a Minnesota corporation, as
issuer (the "Company"), and First Trust National Association as trustee
(the "Trustee"), as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article Ten of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other
provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAW. THE UNDERSIGNED GUARANTOR HEREBY AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
IN WITNESS WHEREOF, the Guarantor has caused its Guarantee to be
duly executed.
Dated: [ ], [ ]
[ ], as Guarantor
By: __________________________________
Name:
Title:
