XXXXX HEALTHCARE CORPORATION
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$400,000,000
9 1/4% SENIOR NOTES due 2010
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INDENTURE
Dated as of June 16, 2000
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THE BANK OF NEW YORK
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as Trustee
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS .................................................... 1
SECTION 1.02. OTHER DEFINITIONS .............................................. 11
SECTION 1.03. INCORPORATION BY REFERENCE OF TIA .............................. 11
SECTION 1.04. RULES OF CONSTRUCTION .......................................... 12
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING ................................................ 12
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY ............................. 12
SECTION 2.03. EXECUTION AND AUTHENTICATION ................................... 13
SECTION 2.04. REGISTRAR AND PAYING AGENT ..................................... 13
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST ............................ 14
SECTION 2.06. HOLDER LISTS ................................................... 14
SECTION 2.07. TRANSFER AND EXCHANGE .......................................... 14
SECTION 2.08. PERSONS DEEMED OWNERS .......................................... 15
SECTION 2.09. REPLACEMENT SECURITIES ......................................... 16
SECTION 2.10. OUTSTANDING SECURITIES ......................................... 16
SECTION 2.11. TREASURY SECURITIES ............................................ 16
SECTION 2.12. TEMPORARY SECURITIES ........................................... 17
SECTION 2.13. CANCELLATION . .. .............................................. 17
SECTION 2.14. DEFAULTED INTEREST ............................................. 17
SECTION 2.15. RECORD DATE .................................................... 17
SECTION 2.16. CUSIP NUMBER ................................................... 17
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE ............................................. 18
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED ......................... 18
SECTION 3.03. NOTICE OF REDEMPTION ........................................... 18
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION ................................. 19
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE .................................... 19
SECTION 3.06. SECURITIES REDEEMED IN PART .................................... 20
SECTION 3.07. OPTIONAL REDEMPTION ............................................ 20
SECTION 3.08. MANDATORY REDEMPTION ........................................... 21
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES .......................................... 21
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY ................................ 21
SECTION 4.03. COMMISSION REPORTS ............................................. 22
SECTION 4.04. COMPLIANCE CERTIFICATE ......................................... 23
SECTION 4.05. TAXES .......................................................... 24
SECTION 4.06. STAY, EXTENSION AND USURY LAWS ................................. 24
SECTION 4.07. LIMITATIONS ON RESTRICTED PAYMENTS ............................. 24
SECTION 4.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES ............................ 26
SECTION 4.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND
ISSUANCE OF PREFERRED STOCK .................................... 27
SECTION 4.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES .................... 28
SECTION 4.11. LIMITATIONS ON LIENS ........................................... 29
SECTION 4.12. CHANGE OF CONTROL . ............................................ 29
SECTION 4.13. CORPORATE EXISTENCE ............................................ 30
SECTION 4.14. LINE OF BUSINESS ............................................... 31
SECTION 4.15. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES ................................................... 31
SECTION 4.16. NO AMENDMENT TO SUBORDINATION PROVISIONS OF SENIOR
SUBORDINATED NOTE INDENTURE .................................... 31
ARTICLE 5
SUCCESSORS
SECTION 5.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF
ASSETS ......................................................... 31
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED .............................. 32
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT .............................................. 33
SECTION 6.02. ACCELERATION ................................................... 34
SECTION 6.03. OTHER REMEDIES ................................................. 35
SECTION 6.04. WAIVER OF PAST DEFAULTS ........................................ 35
SECTION 6.05. CONTROL BY MAJORITY ............................................ 35
SECTION 6.06. LIMITATION ON SUITS ............................................ 35
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT ........................... 36
SECTION 6.09. COLLECTION SUIT BY TRUSTEE ..................................... 36
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM ............................... 36
SECTION 6.10. PRIORITIES ..................................................... 37
SECTION 6.11. UNDERTAKING FOR COSTS .......................................... 37
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE .............................................. 37
SECTION 7.02. RIGHTS OF TRUSTEE .............................................. 38
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE ................................... 39
SECTION 7.04. TRUSTEE'S DISCLAIMER ........................................... 39
SECTION 7.05. NOTICE OF DEFAULTS ............................................. 39
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS .................................. 40
SECTION 7.07. COMPENSATION AND INDEMNITY ..................................... 40
SECTION 7.08. REPLACEMENT OF TRUSTEE ......................................... 41
SECTION 7.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC. ..................... 42
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION .................................. 42
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY .............. 42
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE SECURITIES .. 42
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE ................................ 42
SECTION 8.03. COVENANT DEFEASANCE ............................................ 43
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE ..................... 43
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS .................. 45
SECTION 8.06. REPAYMENT TO COMPANY ........................................... 45
SECTION 8.07. REINSTATEMENT .................................................. 46
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS ..................................... 46
SECTION 9.02. WITH CONSENT OF HOLDERS ........................................ 47
SECTION 9.03. COMPLIANCE WITH TIA ............................................ 48
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS .............................. 48
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES .......................... 48
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. ............................... 49
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA CONTROLS ................................................... 49
SECTION 10.02. NOTICES ........................................................ 49
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS .................... 50
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT ............. 50
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SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION .................. 51
SECTION 10.06. RULES BY TRUSTEE AND AGENTS .................................... 51
SECTION 10.07. LEGAL HOLIDAYS ................................................. 51
SECTION 10.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS ..................................... 51
SECTION 10.09. DUPLICATE ORIGINALS ............................................ 51
SECTION 10.10. GOVERNING LAW .................................................. 52
SECTION 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS .................. 52
SECTION 10.12. SUCCESSORS ..................................................... 52
SECTION 10.13. SEVERABILITY ................................................... 52
SECTION 10.14. COUNTERPART ORIGINALS .......................................... 52
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC. .............................. 52
SIGNATURES
APPENDIX A
APPENDIX B FORM OF SUPPLEMENTAL INDENTURE
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CROSS-REFERENCE TABLE
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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31O (a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... N.A.
(a)(4)....................................................................... N.A.
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08; 7.10
(c).......................................................................... N.A.
311 (a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... N.A.
312 (a).......................................................................... 2.06
(b).......................................................................... 10.03
(c).......................................................................... 10.03
313 (a).......................................................................... 7.06
(b)(1)....................................................................... N.A.
(b)(2)....................................................................... 7.06
(c).......................................................................... 7.06; 10.02
(d).......................................................................... N.A.
314 (a).......................................................................... 4.03; 10.02
(b).......................................................................... N.A.
(c)(1)....................................................................... 10.04
(c)(2)....................................................................... 10.04
(c)(3)....................................................................... N.A.
(d).......................................................................... N.A.
(e).......................................................................... 10.05
(f).......................................................................... N.A.
315 (a).......................................................................... 7.01(iii)(b)
(b).......................................................................... 7.05; 10.02
(c).......................................................................... 7.01(i)
(d).......................................................................... 7.01(iii)
(e).......................................................................... 6.11
316 (a)(last sentence)........................................................... 2.11
(a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... N.A.
(b).......................................................................... 6.07
(c).......................................................................... 2.15; 9.04
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* This Cross-Reference Table is not part of the indenture.
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TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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317 (a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.05
318 (a).......................................................................... 10.01
(b).......................................................................... N.A.
(c).......................................................................... 10.01
N.A. means not applicable
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INDENTURE dated as of June 16, 2000 between Xxxxx Healthcare
Corporation, a Nevada corporation (the "COMPANY"), and The Bank of New York, as
trustee (the "TRUSTEE").
The Company and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 9 1/4% Senior Notes due 2010:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
PROVIDED that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) other than in the ordinary course of business consistent with past
practices and (ii) the issuance or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single transaction or a series
of related transactions (a) that have a fair market value in excess of $25.0
million or (b) for net proceeds in excess of $25.0 million. Notwithstanding the
foregoing: (a) a transfer of assets by the Company to a Subsidiary or by a
Subsidiary to the Company or to another Subsidiary, (b) an issuance of Equity
Interests by a Subsidiary to the Company or to another Subsidiary, (c) a
Restricted Payment that is permitted by Section 4.07 hereof and (d) a Hospital
Swap shall not be deemed to be an Asset Sale.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any authorized committee thereof.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE" means, at the time any determination thereof
is to be made, any lease of property, real or personal, in respect of which the
present value of the minimum rental commitment would be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
Capital Lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition, in
one or a series of related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole to any Person or
group (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) other than to a Person or group who, prior to such transaction, held a
majority of the voting power of the voting stock of the Company, (ii) the
acquisition by any Person or group (as defined above) of a direct or indirect
interest in more than 50% of the voting power of the voting stock of the
Company, by way of merger or consolidation or otherwise, or (iii) the first day
on which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of
both a Change of Control and a Rating Decline.
"CLOSING DATE" means June 16, 2000.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means Xxxxx Healthcare Corporation, as obligor
under the Securities, unless and until a successor replaces Xxxxx Healthcare
Corporation, in accordance with Article 5 hereof and thereafter includes such
successor.
"CONSOLIDATED CASH FLOW" means, with respect to any Person
for any period, the Consolidated Net Income of such Person for such period PLUS
in each case, without duplication (i) an amount equal to any extraordinary loss
plus any net loss realized in connection with an Asset Sale (to the extent such
losses were deducted in computing such Consolidated Net Income), (ii) provision
for taxes based on income or profits of such Person and its Subsidiaries for
such period, to the extent that such provision for taxes was included in
computing such Consolidated Net Income, (iii) the Fixed Charges of such Person
and its Subsidiaries for such period, to the extent that such Fixed Charges were
deducted in computing such Consolidated Net Income, (iv) depreciation and
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) of such Person and its Subsidiaries for such period to the extent that
such depreciation and amortization were deducted in computing such Consolidated
Net Income, in each case, on a consolidated basis and determined in accordance
with GAAP, (v) the amount of any restructuring charges deducted in such
period in computing Consolidated Net Income for such period, (vi) the amount of
all losses related
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to discontinued operations deducted in such period in computing Consolidated
Net Income for such period, (vii) the amount of all non-recurring charges and
expenses related to acquisitions and mergers deducted in such period in
computing Consolidated Net Income for such period and (viii) any non-cash
charges reducing Consolidated Net Income for such period (excluding any
portion of such charge requiring an accrual of a cash reserve for anticipated
cash charges for any future period). Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization of, a Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in same proportion) that the Net Income of such Subsidiary was included
in calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED that(i) the Net Income of any Person that is not a Subsidiary or
that is accounted for by the equity method of accounting shall be included
only to the extent of the amount of dividends or distributions paid in cash
to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that
Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income of
any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date PLUS (ii) the
respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than Disqualified
Stock), LESS all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made in accordance with GAAP as a result of the acquisition of such
business) subsequent to the Closing Date in the book value of any asset owned
by such Person or a consolidated Subsidiary of such Person, and excluding the
cumulative effect of a change in accounting principles, all as determined in
accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board
of Directors on the Closing Date or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which
the Trustee may give notice to the Company.
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"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEPOSITARY" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the Holder thereof, in whole or in part, on or prior to
September 1, 2010.
"EQUITY INTERESTS" means any Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE SECURITIES" shall have the meaning set forth in Appendix A.
"EXISTING CREDIT FACILITY" means that certain Credit Agreement by and
among the Company and Xxxxxx Guaranty Trust Company of New York and the other
banks that are party thereto, providing for $2.8 billion in aggregate
principal amount of Indebtedness, including any related notes, instruments,
and agreements executed in connection therewith, as amended, modified,
extended, renewed, refunded, replaced or refinanced, in whole or in part,
from time to time.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Existing Credit Facility) in
existence on the Closing Date, until such amounts are repaid, including all
reimbursement obligations with respect to letters of credit outstanding as of
the Closing Date.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Subsidiaries incurs, assumes, Guarantees or redeems
any Indebtedness (other than revolving credit borrowings) or issues preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event
for which the calculation of the Fixed Charge Coverage Ratio is made (the
"CALCULATION DATE"), then the Fixed Charge Coverage Ratio shall be calculated
giving PRO FORMA effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of making the computation
referred to above, (i) acquisitions that have been made by the Company or any
of its Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to
the Calculation Date shall be deemed to have occurred on the first day of the
four-quarter reference period, and (ii) the Consolidated Cash Flow and Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or business disposed of prior to the Calculation
Date, shall be excluded.
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"FIXED CHARGES" means, with respect to any Person for any period, the sum
of (i) the consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or acrrued (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of
letters of credit or bankers' acceptance financing, and net payments or
receipts (if any) pursuant to Hedging Obligations) and (ii) the consolidated
interest expense of such Person and its Subsidiaries that was capitalized
during such period, and (iii) any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Subsidiaries or
secured by a Lien on assets of such Person or one of its Subsidiaries
(whether or not such Guarantee or Lien is called upon) and (iv) the product
of (a) all cash dividend payments (and non-cash dividend payments in the case
of a Person that is a Subsidiary) on any series of preferred stock of such
Person, TIMES (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state
and local statutory tax rate of such Person, expressed as a decimal, in each
case, on a consolidated basis and in accordance with GAAP.
"GAAP" means accounting principles generally accepted in the United
States of America as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, as in effect
from time to time.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.02.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"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.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) forward foreign exchange
contracts or currency swap agreements and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values.
"HOLDER" means a Person in whose name in a Security is registered.
"HOSPITAL" means a hospital, outpatient clinic, long-term care facility
or other facility or business that is used or useful in or related to the
provision of healthcare services.
"HOSPITAL SWAP" means an exchange of assets by the Company or a
Subsidiary of the Company for one or more Hospitals and/or one or more
Related Businesses or for the Capital Stock of any Person owning one or more
Hospitals and/or one or more Related Businesses.
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"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well
as all indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the extent
not otherwise included, the Guarantee by such Person of any indebtedness of
any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INITIAL SECURITIES" shall have the meaning set forth in Appendix A.
"INVESTMENT GRADE" means a rating of BBB- or higher by S&P or Baa3 or
higher by Xxxxx'x or the equivalent of such ratings by S&P or Xxxxx'x. In the
event that the Company shall select any other Rating Agency, the equivalent
of such ratings by such Rating Agency shall be used.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction with respect to any such lien,
pledge, charge or security interest).
"MOODY'S" means Xxxxx'x Investors Services, Inc. and its successors.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction
in respect of preferred stock dividends, excluding, however, (i) any gain
(but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions)
or (b) the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not
loss), together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICERS" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
and any Vice President of the Company or any Subsidiary, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers, one
of whom must be the principal executive officer, principal financial officer
or principal accounting officer of the Company.
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"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
"PAYMENT DEFAULT" means any failure to pay any scheduled installment of
interest or principal on any Indebtedness within the grace period provided
for such payment in the documentation governing such Indebtedness.
"PERMITTED LIENS" means (i) Liens in favor of the Company; (ii) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; PROVIDED that such Liens were in existence prior
to the contemplation of such merger, consolidation or acquisition (unless
such Liens secure Indebtedness that was incurred in connection with or in
contemplation of such acquisition and is used to refinance tax-exempt
Indebtedness) and do not extend to any assets or the Company or its
Subsidiaries other than those of the Person merged into or consolidated with
the Company or that becomes a Subsidiary of the Company; (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company; PROVIDED that such Liens were in existence prior
to the contemplation of such acquisition (unless such Liens secure
Indebtedness that was incurred in connection with or in contemplation of
such acquisition and is used to refinance tax-exempt Indebtedness); (iv)
Liens to secure the performance of statutory obligations, tender, bid,
performance, government contract, surety or appeal bonds or other obligations
of a like nature incurred in the ordinary course of business; (v) Liens
existing on the Closing Date; (vi) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; PROVIDED that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been made
therefor; (vii) other Liens on assets of the Company or any Subsidiary of
the Company securing Indebtedness that is permitted by the terms hereof to be
outstanding having an aggregate principal amount at any one time outstanding
not to exceed 10% of the Stockholders' Equity of the Company; and (viii)
Liens to secure Permitted Refinancing Indebtedness incurred to refinance
Indebtedness that was secured by a Lien permitted hereunder and that was
incurred in accordance with the provisions hereof; PROVIDED that such Liens
do not extend to or cover any property or assets of the Company or any
Subsidiary other than assets or property securing the Indebtedness so
refinanced.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used solely to extend, refinance, renew, replace,
defease or refund, other Indebtedness of the Company or any of its
Subsidiaries; PROVIDED that, except in the case of Indebtedness of the
Company issued in exchange for, or the net proceeds of which are used solely
to extend, refinance, renew, replace, defease or refund, Indebtedness of a
Subsidiary of the Company: (i) the principal amount of such Permitted
Refinancing Indebtedness (or if such Permitted Refinancing Indebtedness is
issued at a discount, the initial issuance price of such Permitted
Refinancing Indebtedness) does not exceed the principal amount of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of any premiums paid and reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities, such
Permitted Refinancing Indebtedness has a final maturity date
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later than the final maturity date of, and is subordinated in right of
payment to, the Securities on subordination terms at least as favorable to
the Holders of Securities as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iv) such Indebtedness is incurred by the Company if the Company is
the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (v) such Indebtedness is incurred by the
Company or a Subsidiary if a Subsidiary is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust or unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PHYSICIAN JOINT VENTURE DISTRIBUTIONS" means distributions made by the
Company or any of its Subsidiaries to any physician, pharmacist or other
allied healthcare professional in connection with the unwinding, liquidation
or other termination of any joint venture or similar arrangement between any
such Person and the Company or any of its Subsidiaries.
"PHYSICIAN SUPPORT OBLIGATIONS" means any obligation or Guarantee
incurred in the ordinary course of business by the Company or a Subsidiary of
the Company in connection with any advance, loan or payment to, or on behalf
of or for the benefit of any physician, pharmacist or other allied healthcare
professional for the purpose of recruiting, redirecting or retaining the
physician, pharmacist or other allied healthcare professional to provide
service to patients in the service area of any Hospital or Related Business
owned or operated by the Company or any of its Subsidiaries; EXCLUDING,
HOWEVER, compensation for services provided by physicians, pharmacists or
other allied healthcare professionals to any Hospital or Related Business
owned or operated by the Company or any of its Subsidiaries.
"QUALIFIED EQUITY INTERESTS" shall mean all Equity Interests of the
Company other than Disqualified Stock of the Company.
"RATING AGENCIES" means (i) S&P and (ii) Xxxxx'x or (iii) if neither
S&P nor Xxxxx'x shall make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may
be, selected by the Company, which shall be substituted for S&P or Xxxxx'x or
both, as the case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories);
(ii) with respect to Moody's, any of the following categories: Ba, B, Caa, Ca,
C and D (or equivalent successor categories); and (iii) the equivalent of any
such category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Securities has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Xxxxx'x;
or the equivalent gradations for another Rating Agency) shall be taken into
account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, as
well as from BB- to B+, shall constitute a decrease of one gradation).
"RATING DATE" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) the first public notice of the occurrence of
a Change of Control or of the intention by the Company to effect a Change of
Control.
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"RATING DECLINE" means the occurrence on or within 90 days after the
date of the first public notice of the occurrence of a Change of Control or
of the intention by the Company to effect a Change of Control (which period
shall be extended so long as the rating of the Securities is under publicly
announced consideration for possible downgrade by any of the Rating Agencies)
of: (a) in the event the Securities are rated by either Xxxxx'x or S&P on the
Rating Date as Investment Grade, a decrease in the rating of the Securities
by both Rating Agencies to a rating that is below Investment Grade, or (b) in
the event the Securities are rated below Investment Grade by both Rating
Agencies on the Rating Date, a decrease in the rating of the Securities by
either Rating Agency by one or more gradations (including gradations within
Rating Categories as well as between Rating Categories).
"RELATED BUSINESS" means a healthcare business affiliated or associated
with a Hospital or any business related or ancillary to the provision of
healthcare services or information or the investment in, management, leasing
or operation of a Hospital.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"SECURITIES" means the securities described above, issued under this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in
effect on the Closing Date.
"S&P" means Standard & Poor's Corporation and its successors.
"SPECIFIED EXCHANGE" means any retirement of Indebtedness upon the
exercise by a holder of such Indebtedness, pursuant to the terms thereof, of
any right to exchange such Indebtedness for shares of common stock of Ventas,
Inc. or any successor thereto or any other equity securities, other than
Equity Interests of a subsidiary, owned by the Company as of October 11,
1995, or for any securities or other property received with respect to such
common stock or equity securities or cash in lieu thereof, whether or not
such right is subject to the Company's ability to pay an amount in cash in
lieu thereof.
"STOCKHOLDERS' EQUITY" means, with respect to any Person as of any
date, the stockholders' equity of such Person determined in accordance with
GAAP as of the date of the most recent available internal financial
statements of such Person, and calculated on a PRO FORMA basis to give effect
to any acquisition or disposition by such Person consummated or to be
consummated since the date of such financial statements and on or prior to
the date of such calculation.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more
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of the other Subsidiaries of that Person (or a combination thereof) and (ii)
any partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more Subsidiaries of
such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03 hereof.
"TRANSFER RESTRICTION" means, with respect to the Company's
Subsidiaries, any encumbrance or restriction on the ability of any Subsidiary
to (i)(a) pay dividends or make any other distributions to the Company or any
of its Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Company or any of its Subsidiaries, (ii) make loans
or advances to the Company or any of its Subsidiaries, or (iii) transfer any
of its properties or assets to the Company or any of its Subsidiaries.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
"2005 EXCHANGEABLE SUBORDINATED NOTES" means the 6% Exchangeable
Subordinated Notes due 2005 of the Company in an aggregate principal amount
of $320.0 million, issued pursuant to the Indenture dated as of January 10,
1996, between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
"2005 SENIOR SUBORDINATED NOTES" means the 10 1/8% Senior Subordinated
Notes due 2005 of the Company in an aggregate principal amount of $900.0
million, issued pursuant to the Indenture dated as of March 1, 1995, between
the Company and The Bank of New York, as trustee, as amended or supplemented
from time to time.
"2007 SENIOR SUBORDINATED NOTES" means the 8 5/8% Senior Subordinated
Notes due 2007 of the Company in an aggregate principal amount of $700.0
million, issued pursuant to the Indenture dated as of January 15, 1997,
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
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"2008 SENIOR SUBORDINATED NOTES" means the 8 1/8% Senior Subordinated
Notes due 2008 of the Company in an aggregate principal amount of $1,005
million, issued pursuant to the Indenture dated as of May 21, 1998, between
the Company and The Bank of New York, as trustee, as amended or supplemented
from time to time.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ----------
"Affiliate Transaction"..................... 4.10
"Bankruptcy Law"............................ 6.01
"Change of Control Offer"................... 4.12
"Change of Control Payment"................. 4.12
"Change of Control Payment Date"............ 4.12
"Company Deposit"........................... 9.04
"Covenant Defeasance"....................... 8.03
"Custodian"................................. 6.01
"Deposits".................................. 9.04
"Event of Default".......................... 6.01
"incur"..................................... 4.09
"Legal Defeasance".......................... 8.02
"Legal Holiday"............................. 10.07
"New Lender Deposit"........................ 9.04
"New Loan".................................. 9.04
"New Loan Agreement"........................ 9.04
"Notice of Default"......................... 6.01
"Paying Agent".............................. 2.03
"Registrar"................................. 2.03
"Restricted Payments"....................... 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF XXX.
Whenever this Indenture refers to a provision of the TIA, the 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 Securities;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any successor obligor
upon the Securities.
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All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by the Commission
rule under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
Provisions relating to the Initial Securities and the Exchange
Securities are set forth in the Rule 144A/Regulation S Appendix attached hereto
("Appendix A"), which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to Appendix A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 2 to Appendix A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Appendix A and the Exhibits thereto are part of the
terms of this Indenture. The Securities shall be issuable only in registered
form, without coupons, in denominations of $1,000 and integral multiples
thereof. The Securities may be Global Securities, as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY.
Every Global Security authenticated and delivered hereunder
shall bear a legend 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 Depositary or a nominee thereof. This
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Security may not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in part may be
registered, in the name of any person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture."
SECTI0N 2.03. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Appendix A and the
exhibits thereto.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company, authenticate Securities for original issue up to
the aggregate principal amount stated in paragraph 4 of the Securities. The
aggregate principal amount of Securities outstanding at any time shall not
exceed the amount set forth herein except as provided in Section 2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities 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 or an Affiliate of the Company.
Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
The Company initially appoints The Depository Trust Company as
the Depositary.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where
Securities may be presented for registration of transfer or for exchange
(including any co-registrar, the "REGISTRAR") and (ii) an office or agency
where Securities may be presented for payment (the "PAYING AGENT"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of
any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as such. The Company or any of its Subsidiaries may act as Paying Agent,
Registrar or co-registrar. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which shall
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incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Securities.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to the due date of principal of, premium, if any,
and interest on any Securities, the Company shall deposit with the Trustee or
the Paying Agent money sufficient to pay such principal, premium, if any, and
interest becoming due. The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Securities,
and shall notify the Trustee of any Default by the Company in making any such
payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company) shall have no
further liability for the money delivered to the Trustee. If the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders,
including the aggregate principal amount of the Securities held by each
thereof, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar with a request
to register the transfer or to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met; PROVIDED,
HOWEVER, that any Security presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar and the Trustee duly executed by
the Holder thereof or by his attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Company shall issue and the Trustee
shall authenticate Securities at the Registrar's request, subject to such rules
as the Trustee may reasonably require.
Neither the Company nor the Registrar shall be required to (i)
register the transfer or exchange of Securities during a period beginning at the
opening of business on a Business Day 15 days before the day of mailing of a
notice of redemption of Securities for redemption under Section 3.03
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hereof and ending at the close of business on the day of such mailing, (ii)
register the transfer or exchange of any Security selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) register the transfer or exchange of a Security between the
record date and the next succeeding interest payment date.
No service charge shall be made to any Holder for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar govemmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.12 or 9.05 hereof, which shall be paid by the
Company).
Notwithstanding the foregoing, a Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or any such nominee to a successor of the Depositary or a nominee of such
successor, unless:
(i) the Depositary is at any time unwilling or unable
to continue as depository or if at any time the Depositary ceases to be
a clearing agency registered under the Exchange Act and a successor
depository is not appointed by the Company within 90 days,
(ii) an Event of Default under this Indenture with
respect to the Securities has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the
Securities advise the Depositary to cease acting as depositary or
(iii) the Company, in its sole discretion, determines
at any time that the Securities shall no longer be represented by a
Global Security, the Company will issue individual Securities of the
applicable amount and in certificated form in exchange for a Global
Security. In any such instance, an owner of a beneficial interest in
the Global Security will be entitled to physical delivery of individual
securities in certificated form of like tenor, equal in principal
amount to such beneficial interest and to have such Securities in
certificated form registered in its name.
SECTION 2.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of, premium, if any, and
interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
So long as the Depositary or its nominee is the registered
Holder of a Global Security, the Depositary or its nominee, as the case may be,
will be treated as the sole owner of it for all purposes under the Indenture and
the beneficial owners of the Securities will be entitled only to those rights
and benefits afforded to them in accordance with the Depositary's regular
operating procedures. Except as provided in Section 2.07, owners of beneficial
interests in a Global Security will not be entitled to have Securities
represented by a Global Security registered in their names, will not receive or
be entitled to receive physical delivery of Securities in certificated form and
will not be considered the registered Holders thereof under the Indenture.
-15-
None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.09. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee or the
Company, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. An indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss which any of them may suffer if a Security is replaced. Each of the
Company and the Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.10. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.09 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
Subject to Section 2.11 hereof, a Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the
Security.
SECTION 2.11. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities then outstanding have concurred in any demand, direction,
waiver or consent, Securities owned by the Company or any Affiliate of the
Company shall be considered as though not outstanding, except that for purposes
of determining whether the Trustee shall be protected in relying on any such
demand, direction, waiver or consent, only Securities that a Responsible Officer
actually knows to be so owned shall be so considered. Notwithstanding the
foregoing, Securities that are to be acquired by the Company or an Affiliate of
the Company pursuant to an exchange offer, tender offer or other agreement shall
not be deemed to be owned by the Company or an Affiliate of the Company until
legal title to such Securities passes to the Company or such Affiliate, as the
case may be.
SECTION 2.12. TEMPORARY SECURITIES.
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Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers of the Company, shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company and the Trustee
consider appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers of the Company, shall authenticate definitive
Securities in exchange for temporary Securities. Until such exchange, temporary
Securities shall be entitled to the same rights, benefits and privileges as
definitive Securities.
SECTION 2.13. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return such
cancelled Securities to the Company. The Company may not issue new Securities to
replace Securities that it has paid or that have been delivered to the Trustee
for cancellation.
SECTION 2.14. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior to
the related payment date, in each case at the rate provided in the Securities
and in Section 4.01 hereof. The Company shall, with the consent of the Trustee,
fix or cause to be fixed each such special record date and payment date. At
least 15 days before the special record date, the Company (or the Trustee, in
the name of and at the expense of the Company) shall mail to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
SECTION 2.15. RECORD DATE.
The record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture shall be determined as provided for in TIA
Section 316(c).
SECTION 2.16. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP"
number, and if it does so, the Trustee shall use the CUSIP number in notices to
Holders; PROVIDED that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed in the notice or
on the Securities and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any change in the CUSIP number.
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ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Securities to be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase
Securities pursuant to the provisions of Section 4.12 hereof, it shall furnish
to the Trustee an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the purchase shall occur, (ii) the purchase date,
(iii) the principal amount of Securities to be purchased, (iv) the purchase
price and (v) a statement to the effect that a Change of Control has occurred
and the conditions set forth in Section 4.12 hereof have been satisfied, as
applicable.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed at any
time, the Trustee shall select the Securities to be redeemed among the Holders
in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are then listed, or, if the Securities
are not so listed, on a PRO RATA basis, by lot or by such method the Trustee
shall deem fair and appropriate; PROVIDED that Securities with a principal
amount of $1,000 shall not be redeemed in part.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. Securities
and portions of them selected shall be in the amounts of $1,000 or whole
multiples of $1,000; except that if all of the Securities of a Holder are to be
redeemed, the entire outstanding amount of Securities held by such Holders, even
if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.
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 by first class mail a notice
of redemption to each Holder of Securities to be redeemed at its registered
address.
The notice shall identify the Securities to be redeemed
(including CUSIP number) and shall state:
(1) the redemption date;
(2) the redemption price;
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(3) if any Security is being redeemed in part, the
portion of the principal amount of such Security to
be redeemed and that, after the redemption date upon
surrender of such Security, a new Security or
Securities in principal amount equal to the
unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Securities and/or Section of
this Indenture pursuant to which the Securities
called for redemption are being redeemed; and
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date, unless the Trustee shall agree to a shorter period, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph. The notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives such notice.
In any case, failure to give such notice by mail or any defect in the notice to
the Holder of any Security shall not affect the validity of the proceeding for
the redemption of any other Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of, and accrued interest on, all Securities to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of (including any
applicable premium), and accrued interest on, all Securities to be redeemed.
On and after the redemption date, interest ceases to accrue on
the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Security was registered at the close of
business on such record date. If
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any Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case the rate provided in the Securities
and in Section 4.01 hereof.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Securities shall be redeemable, in whole, at any time, or
in part, from time to time, at the option of the Company upon not less than 30
nor more than 60 days' notice at a redemption price equal to the Make-Whole
Price. "Make-Whole Price" means an amount equal to the greater of (i) 100% of
the principal amount of the Securities and (ii) as determined by an Independent
Investment Banker (as defined herein), the sum of the present values of the
remaining scheduled payments of principal and interest thereon (excluding
accrued and unpaid interest to the date of redemption) discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Treasury Rate (as defined herein), plus, in each
case, accrued and unpaid interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue (as defined), assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined) for such redemption date, plus 0.5%.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Treasury
Reference Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
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"Independent Investment Banker" means one of the Reference
Treasury Dealers (as defined) appointed by the Company.
"Reference Treasury Dealer" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation and its successors; PROVIDED, HOWEVER, that if the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
SECTION 3.08. MANDATORY REDEMPTION.
Subject to the Company's obligation to make an offer to
repurchase Securities under certain circumstances pursuant to Section 4.12
hereof, the Company shall not be required to make any mandatory redemption or
sinking fund payments with respect to the Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Securities on the dates and in the
manner provided in this Indenture and the Securities. Principal, premium, if
any, and interest shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary of the Company, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company, no later than five days following the date of payment,
any money (including accrued interest) that exceeds such amount of principal,
premium, if any, and interest to be paid on the Securities.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the interest rate then applicable to the
Securities to the extent lawful. In addition, it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from
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time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Bank of New York, 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 as one such office or agency
of the Company in accordance with Section 2.04 hereof.
SECTION 4.03. COMMISSION REPORTS.
(i) So long as any of the Securities remain outstanding,
the Company shall provide to the Trustee within 15 days after the
filing thereof with the Commission copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. All
obligors on the Securities shall comply with the provisions of TIA
Section 314(a). Nothwithstanding that the Company may not be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange
Act or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules
and regulations promulgated by the Commission, the Company shall
file with the Commission and provide to the Trustee (a) within 90
days after the end of each fiscal year, annual reports on Form 10-K
(or any successor or comparable form) containing the information
required to be contained therein (or required in such successor or
comparable form), including a "MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" and a report
thereon by the Company's certified public accountants; (b) within 45
days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or
comparable form) containing the information required to be
contained therein (or required in any successor or comparable form),
including a "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS"; and (c) promptly from time to
time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in any successor or comparable form); PROVIDED,
HOWEVER, that the Company shall not be in default of the provisions
of this Section 4.03(i) for any failure to file reports with the
Commission solely by the refusal of the Commission to accept the
same for filing. Each of the financial statements contained in such
reports shall be prepared in accordance with GAAP.
(ii) The Trustee, at the Company's request and expense,
shall promptly mail copies of all such annual reports, information,
documents and other reports provided to the Trustee pursuant to Section
4.03(i) hereof to the Holders at their addresses appearing in the
register of Securities maintained by the Registrar.
(iii) Whether or not required by the rules and regulations
of the Commission, the Company shall file a copy of all such
information and reports with the Commission for public availability
and make such information available to securities analysts and
prospective investors upon request.
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(iv) The Company shall provide the Trustee with a
sufficient number of copies of all reports and other documents and
information that the Trustee may be required to deliver to the Holders
under this Section 4.03.
(v) Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(i) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether
each 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 his or her knowledge each entity
has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she
may have knowledge and what action each is taking or proposes to take
with respect thereto), all without regard to periods of grace or notice
requirements, and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Securities is
prohibited or if such event has occurred, a description of the event
and what action each is taking or proposes to take with respect
thereto.
(ii) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 4.03 above shall be accompanied by a written statement of
the Company's certified independent public accountants (who shall
be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe
that the Company or any Subsidiary of the Company has violated any
provisions of Article 4 or of Article 5 of this Indenture or, if any
such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure
to obtain knowledge of any such violation.
(iii) The Company shall, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (a) any Default or Event of Default or (b) any event
of default under any other mortgage, indenture or instrument referred
to in Section 6.01(v) hereof, an Officers' Certificate specifying such
Default, Event of Default or event of default and what action the
Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
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The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental
levies except (i) as contested in good faith by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP or (ii) where the failure to effect such payment is not adverse in
any material respect to the Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07. LIMITATIONS ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Subsidiaries' Equity
Interests (other than (w) Physician Joint Venture Distributions, (x)
dividends or distributions payable in Qualified Equity Interests of the
Company, (y) dividends or distributions payable to the Company or any
Subsidiary of the Company, and (z) dividends or distributions by any
Subsidiary of the Company payable to all holders of a class of Equity
Interests of such Subsidiary on a PRO RATA basis); (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company; or
(iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated
to the Securities, except at the original final maturity date thereof or
pursuant to a Specified Exchange (all such payments and other actions set
forth in clauses (i) through (iii) above being collectively referred to as
"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to
such Restricted Payment (the amount of any such Restricted Payment, if other
than cash, shall be the fair market value (as conclusively evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee within 60 days prior to the date of such Restricted
Payment) of the asset(s) proposed to be transferred by the Company or such
Subsidiary, as the case may be, pursuant to such Restricted Payment):
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment
and after giving PRO FORMA effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries after
March 1, 1995 (excluding Restricted Payments permitted by clauses (ii),
(iii) and (iv) of the next succeeding paragraph), is less than
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the sum of (1) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing March 1, 1995 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), PLUS (2)
100% of the aggregate net cash proceeds received by the Company from the
issue or sale (other than to a Subsidiary of the Company) since March 1, 1995
of Qualified Equity Interests of the Company or of debt securities of the
Company or any of its Subsidiaries that have been converted into or exchanged
for such Qualified Equity Interests of the Company, PLUS (3) $50.0 million.
If no Default or Event of Default has occurred and is continuing, or
would occur as a consequence thereof, the foregoing provisions shall not
prohibit the following Restricted Payments:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions hereof;
(ii) the payment of cash dividends on any series of Disqualified
Stock issued after the Closing Date in an aggregate amount not to exceed the
cash received by the Company since the Closing Date upon issuance of such
Disqualified Stock;
(iii) the redemption, repurchase, retirement or other aquisition of
any Equity Interests of the Company or any Subsidiary in exchange for, or out
of the net cash proceeds of, the substantially concurrent sale (other than to
a Subsidiary of the Company) of Qualified Equity Interests of the Company;
PROVIDED that the amount of any such net cash proceeds that are utilized for
any such redemption, repurchase, retirement or other aquisition shall be
excluded from clause (c)(2) of the preceding paragraph;
(iv) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or in exchange for or out of the net cash proceeds
from the substantially concurrent sale (other than to a Subsidiary of the
Company) of Qualified Equity Interests of the Company; PROVIDED that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c)(2) of the preceding paragraph;
(v) the repurchase, redemption or other acquisition or retirement
for value of (A) any Equity Interests of the Company or any Subsidiary of the
Company held by any member of the Company's (or any of its Subsidiaries')
management pursuant to any management equity subscription agreement or stock
option agreement or (B) any Equity Interests of the Company which are or
intended to be used to satisfy issuances of such Equity Interests upon
exercise of employee stock options or upon exercise or satisfaction of other
similar instruments outstanding under employee benefit plans of the Company
or any subsidiary of the Company; PROVIDED that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $25.0 million in any twelve-month period; and
(vi) the making and consummation of (A) a senior subordinated asset
sale offer in accordance with the provisions of the indenture relating to the
2005 Senior Subordinated Notes or (B) a change of control offer with respect
to any of the 2008 Senior Subordinated Notes, the
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2007 Senior Subordinated Notes, the 2005 Senior Subordinated Notes or the
2005 Exchangeable Subordinated Notes in accordance with the provisions of the
indentures relating thereto.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which
the calculations required by this covenant were computed.
SECTION 4.08 LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual Transfer Restriction, except for such
Transfer Restrictions existing under or by reason of:
(a) Existing Indebtedness as in effect on the Closing Date,
(b) this Indenture,
(c) applicable law,
(d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness was incurred
in connection with or in contemplation of such acquisition, unless such
Indebtedness was incurred in connection with or in contemplation of such
acquisition for the purpose of refinancing Indebtedness which was tax-exempt,
or in violation of Section 4.09 hereof), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired,
PROVIDED that the Consolidated Cash Flow of such Person shall not be taken
into account in determining whether such acquisition was permitted by the
terms hereof except to the extent that such Consolidated Cash Flow would be
permitted to be dividends to the Company without the prior consent or
approval of any third party,
(e) customary non-assignment provisions in leases entered into in the
ordinary course of business,
(f) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the ability of any of the
Company's Subsidiaries to transfer the property so acquired to the Company or
any of its Subsidiaries,
(g) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced, or
(h) the Existing Credit Facility and related documentation as the
same is in effect on the Closing Date and as amended, modified, extended,
renewed, refunded, refinanced, restated or replaced from time to time,
PROVIDED that no such amendment or replacement is more restrictive
as to Transfer Restrictions than the Existing Credit Facility and related
documentation as in effect on the Closing Date.
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SECTION 4.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, Guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively "INCUR") after the Closing Date any Indebtedness (including
Acquired Debt), and the Company shall not issue any Disqualified Stock and
shall not permit any of its Subsidiaries to issue any shares of preferred
stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness (including
Acquired Debt) and the Company may issue shares of Disqualified Stock if the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock is issued would have been at least 2.5 to
1, determined on a PRO FORMA basis (including a PRO FORMA application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred
or the Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period. Indebtedness consisting of
reimbursement obligations in respect of a letter of credit shall be deemed to
be incurred when the letter of credit is first issued.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company of Indebtedness pursuant to the
Existing Credit Facility in an aggregate principal amount at the time
outstanding not to exceed an amount equal to $2.8 billion less the aggregate
amount of all mandatory repayments applied to permanently reduce the
commitments with respect to such Indebtedness;
(b) the incurrence by the Company of Indebtedness represented by the
Securities;
(c) the incurrence by the Company and its Subsidiaries of the Existing
Indebtedness;
(d) the incurrence by the Company or any of its Subsidiaries of Permitted
Refinancing Indebtedness is exchange for, or the net proceeds of which are
used to extend, refinancing, renew, replace, defease or refund, Indebtedness
that was permitted by this Indenture to be incurred (including, without
limitation, Existing Indebtedness);
(e) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Subsidiaries;
(f) the incurrence by the Company of Hedging Obligations that are incurred
for the purpose of fixing or hedging interest rate or currency risk with
respect to any fixed or floating rate Indebtedness that is permitted by the
terms hereof to be outstanding or any receivable or liability the payment of
which is determined by reference to a foreign currency; PROVIDED that the
notional principal amount of any such Hedging Obligation does not exceed the
principal amount of the Indebtedness to which such Hedging Obligation relates;
(g) the incurrence by the Company or any of its Subsidiaries of Physician
Support Obligations;
(h) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by tender, bid, performance, government contract,
surety or appeal bonds, standby
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letters of credit or warranty or contractual service obligations of like
nature, in each case to the extent incurred in the ordinary course of business
of the Company or such Subsidiary;
(i) the incurrence by any Subsidiary of the Company of Indebtedness, the
aggregate principal amount of which, together with all other Indebtedness of
the Company's Subsidiaries at the time outstanding (excluding the Existing
Indebtedness until repaid or refinanced and excluding Physician Support
Obligations), does not exceed the greater of (1) 10% of the Company's
Stockholders' Equity as of the date of incurrence or (2) $10.0 million;
PROVIDED that, in the case of clause (1) only, the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the
date on which such Indebtedness is incurred would have been at least 2.5 to
1, determined on a PRO FORMA basis (including a PRO FORMA application of the
net proceeds therefrom), as if such Indebtedness had been incurred at the
beginning of such four-quarter period; and
(j) the incurrence by the Company of Indebtedness (in addition to
Indebtedness permitted by any other clause of this covenant) in an aggregate
principal amount at any time outstanding not to exceed $400.0 million.
SECTION 4.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make any
contract, agreement, understanding, loan, advance or Guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "AFFILIATE
TRANSACTION"), unless (i) such Affiliate Transaction, is on terms that are no
less favorable to the Company or the relevant Subsidiary than those that
could have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee (a) with respect to any Affiliate Transaction involving aggregate
consideration in excess of $5.0 million, a resolution of the Board of
Directors set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (i) above and that such Affiliate
Transaction was approved by a majority of the disinterested members of the
Board of Directors and (b) with respect to any Affiliate Transaction
involving aggregate consideration in excess of $15.0 million, an opinion as
to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an investment banking
firm of national standing; PROVIDED that (x) transactions or payments
pursuant to any employment arrangements or employee or director benefit plans
entered into by the Company or any of its Subsidiaries in the ordinary course
of business and consistent with the past practice of the Company or such
Subsidiary, (y) transactions between or among the Company and/or its
Subsidiaries and (z) transactions permitted under Section 4.07 hereof, in
each case, shall not be deemed to be Affiliate Transactions.
SECTION 4.11. LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
(except Permitted Liens) on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom unless all payments due hereunder and under the Securities are
secured on an equal and ratable basis with the Obligations so secured until
such time as such Obligations are no longer secured by a Lien.
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SECTION 4.12. CHANGE OF CONTROL
Upon the occurrence of a Change of Control Triggering Event, each Holder
of Securities shall have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Securities pursuant to the offer described below (the "CHANGE OF
CONTROL OFFER") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any, thereon to
the date of purchase (the "CHANGE OF CONTROL PAYMENT") on a date that is not
more than 90 days after the occurrence of such Change of Control Triggering
Event (the "CHANGE OF CONTROL PAYMENT DATE").
Within 30 days following any Change of Control Triggering Event, the
Company shall mail, or at the Company's request the Trustee shall mail, a
notice of a Change of Control to each Holder (at its last registered address
with a copy to the Trustee and the Paying Agent) offering to repurchase the
Securities held by such Holder pursuant to the procedure specified in such
notice. The Change of Control Offer shall remain open from the time of
mailing until the close of business on the Business Day next preceding the
Change of Control Payment Date. The notice, which shall govern the terms of
the Change of Control Offer, shall contain all instructions and materials
necessary to enable the Holders to tender Securities pursuant to the Change
of Control Offer and shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.12 and that all Securities tendered will be accepted for payment;
(2) the Change of Control Payment and the Change of Control Payment
Date, which date shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed;
(3) that any Security not tendered will continue to accrue interest in
accordance with the terms of this Indenture;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Securities accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have a Security purchased pursuant to any
Change of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reserve of the
Security completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to the
close of business on the Business Day next preceding the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not later
than the close of business on the Business Day next preceding the Change of
Control Payment Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder delivered
for purchase, and a statement that such Xxxxxx is withdrawing his election to
have such Security purchased;
(7) that Holders whose Securities are being purchased only in part will
be issued new Securities equal in principal amount to the unpurchased portion
of the Securities
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surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; and
(8) the circumstances and relevant facts regarding such
Change of Control (including, but not limited to, information with
respect to PRO FORMA historical financial information after giving
effect to such Change of Control, information regarding the Person or
Persons acquiring control and such Person's or Persons' business plans
going forward) and any other information that would be material to a
decision as to whether to tender a Security pursuant to the Change of
Control Offer.
On the Change of Control Payment Date, the Company shall,
to the extent lawful, (i) accept for payment all Securities or portions
thereof properly tendered and not withdrawn pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions thereof so tendered
and (iii) deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to each Holder of Securities so
tendered the Change of Control Payment for such Securities, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; PROVIDED that each
such new Security shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Company shall comply with the requirements 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 Securities as a result of a Change of Control Triggering Event.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Section 4.12 and Article 5 hereof, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; PROVIDED, HOWEVER, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.14 LINE OF BUSINESS.
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in any material extent in any business other than the
ownership, operation and management of Hospitals and Related Businesses.
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SECTION 4.15 LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES.
The Company shall not permit any Subsidiary, directly or
indirectly, to Guarantee or secure the payment of any other Indebtedness of
the Company or any of its Subsidiaries (except Indebtedness of a Subsidiary
of such Subsidiary or Physician Support Obligations) unless such Subsidiary
simultaneously executes and delivers a supplemental indenture to this
Indenture, in substantially the form attached hereto as Appendix B, providing
for the Guarantee of the payment of the Securities by such Subsidiary, which
Guarantee shall be senior to or PARI PASSU with such Subsidiary's Guarantee
of or pledge to secure such other Indebtedness. Notwithstanding the
foregoing, any such Guarantee by a Subsidiary of the Securities shall provide
by its terms that it shall be automatically and unconditionally released and
discharged upon the sale or other disposition, by way of merger of otherwise,
to any Person not an Affiliate of the Company, of all of the Company's stock
in, or all or substantially all the assets of, such Subsidiary. The foregoing
provisions shall not be applicable to any one or more Guarantees that
otherwise would be prohibited of up to $25.0 million in aggregate principal
amount of Indebtedness of the Company or its Subsidiaries at any time
outstanding.
SECTION 4.16 NO AMENDMENT TO SUBORDINATION PROVISIONS OF SENIOR
SUBORDINATED NOTE INDENTURE.
The Company shall not amend, modify or alter the indentures
relating to the 2005 Senior Subordinated Notes, the 2007 Senior Subordinated
Notes or the 2005 Exchangeable Subordinated Notes or the 2008 Senior
Subordinated Notes in any way that would (i) increase the principal of, advance
the final maturity date of or shorten the Weighted Average Life to Maturity of
the 2008 Senior Subordinated Notes, 2005 Senior Subordinated Notes, 2007 Senior
Subordinated or 2005 Exchangeable Subordinated Notes or (ii) amend the
subordination provisions of the indentures relating to the 2008 Senior
Subordinated Notes, the 2005 Senior Subordinated Notes, the 2007 Senior
Subordinated Notes or the 2005 Exchangeable Subordinated Notes or any of the
defined terms used therein a manner that would be adverse to the Holders of the
Securities.
ARTICLE 5
SUCCESSORS
SECTION 5.01 LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.
The Company may not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another corporation, Person or
entity unless:
(i) the Company is the surviving corporation or the
entity or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia;
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(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the Obligations of
the Company under this Indenture and the Securities pursuant to a
supplemental indenture in a form reasonably satisfactory to the
Trustee;
(iii) immediately after such transaction no Default or
Event of Default exists; and
(iv) the Company or the entity or Person formed by or
surviving any such consolidation or merger (if other than the Company),
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have a Consolidated Net
Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction and (B) shall, at the time of such transaction and after
giving PRO FORMA effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel, covering clauses (i) though (iv)
above, stating that the proposed transaction and such supplemental indenture
comply with this Indenture. The Trustee shall be entitled to conclusively rely
upon such Officers' Certificate and Opinion of Counsel.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company is accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture referring to
the "Company" shall refer instead to the successor corporation), and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person has been named as the Company, herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF DEFAULT":
(i) default for 30 days in the payment when due of
interest on the Securities;
(ii) default in payment when due of the principal of or
premium, if any, on the Securities at maturity or otherwise;
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(iii) failure by the Company to comply with the provisions
of Sections 4.07, 4.09 or 4.12 hereof;
(iv) failure by the Company to comply with any other
covenant or agreement in the Indenture or the Securities for the
period and after the notice specified below;
(v) any default that occurs under any mortgage, indenture
or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Significant Subsidiaries (or the payment of
which is Guaranteed by the Company or any of its Significant
Subsidiaries), whether such Indebtedness or Guarantee exists on the
Closing Date or is created after the Closing Date, which default (a)
constitutes a Payment Default or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case,
the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there
has been a Payment Default or that has been so accelerated,
aggregates $25.0 million or more;
(vi) failure by the Company or any of its Significant
Subsidiaries to pay a final judgment or final judgments aggregating
in excess of $25.0 million entered by a court or courts of competent
jurisdiction against the Company or any of its Significant
Subsidiaries if such final judgment or judgments remain unpaid or
undischarged for a period (during which execution shall not be
effectively stayed) of 60 days after their entry;
(vii) the Company or any Significant Subsidiary thereof
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case in which it is the
debtor,
(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) admits in writing its inability generally
to pay its debts as the same become due; and
(viii) 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 thereof in an involuntary case in
which it is the debtor,
(b) appoints a Custodian of the Company or any
Significant Subsidiary thereof or for all or substantially
all of the property of the Company or any Significant
Subsidiary thereof, or
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(c) orders the liquidation of the Company or
any Significant Subsidiary thereof, and the order or decree
remains unstayed and in effect for 60 days.
The term "BANKRUPTCY LAW" means title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
A Default under clause (iv) is not an Event of Default
until the Trustee notifies the Company in writing, or the Holders of at least
25% in principal amount of the then outstanding Securities notify the Company
and the Trustee in writing, of the Default and the Company does not cure the
Default within 60 days after receipt of such notice. The written notice must
specify the Default, demand that it be remedied and state that the notice is
a "NOTICE OF DEFAULT".
SECTION 6.02. ACCELERATION.
In any Event of Default (other than an Event of Default
specified in clause (vii) or (viii) of Section 6.01 hereof) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least
25% in principal amount of the then outstanding Securities by written notice
to the Company and the Trustee, may declare the unpaid principal of, premium,
if any, and any accrued and unpaid interest on all the Securities to be due
and payable immediately. Upon such declaration the principal, premium, if
any, and interest shall be due and payable immediately. If an Event of
Default specified in clause (vii) or (viii) of Section 6.01 hereof occurs
with respect to the Company or any Significant Subsidiary thereof such an
amount shall IPSO FACTO become and be immediately due and payable without
further action or notice on the part of the Trustee or any Holder.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Securities pursuant to Section 3.07 hereof, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Securities.
Any determination regarding the primary purpose of any such
action or inaction, as the case may be, shall be made by and set forth in a
resolution of the Board of Directors (including the concurrence of a majority
of the independent directors of the Company then serving) delivered to the
Trustee after consideration of the business reasons for such action or
inaction, other than the avoidance of payment of such premium or prohibition
on redemption. In the absence of fraud, each such determination shall be
final and binding upon the Holders of Securities. Subject to Section 7.01
hereof, the Trustee shall be entitled to rely on the determination set forth
in any such resolutions delivered to the Trustee.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal
or interest on the Securities or to enforce the performance of any provision
of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
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exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies 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 Securities then outstanding by written notice to the
Trustee may on behalf of the Holders of all of the Securities waive any
existing Default or Event of Default and its consequences under this
Indenture except a continuing Default or Event of Default in the payment of
the principal of, premium, if any, or interest on any Security. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights
of other Holders or that may involve the Trustee in personal liability. The
Trustee may take any other action which it deems proper which is not
inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture
or the Securities only if:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of
the then outstanding Securities make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(v) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Securities do not give
the Trustee a direction 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 another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
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Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal, premium, if any, and
interest on the Security, on or after the respective due dates expressed in
the Security, 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 the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii)
hereof occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the
Company or any other obligor for the whole amount of principal, premium, if
any, and interest remaining unpaid on the Securities and interest on overdue
principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover amounts due the Trustee under Section 7.07
hereof, including the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustees, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders may be
entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities 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,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
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Second: to Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable
on the Securities for principal, premium, if any and interest, respectively;
and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10 upon five Business Days
prior notice to the Company.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken
or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding
Securities.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(i) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(ii) Except during the continuance of an Event of
Default known to the Trustee:
(a) the duties of the Trustee shall be
determined solely by the express provisions of this
Indenture or the TIA and the Trustee need perform only
those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee, and
(b) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(iii) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
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(a) this paragraph does not limit the effect of
paragraph (ii) of this Section;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to
Section 6.05 hereof.
(iv) Whether or not therein expressly so provided every
provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (i), (ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The
Trustee may refuse to perform any duty or exercise any right or
power unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
(vi) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in writing
with the Company. Absent written instruction from the Company, the
Trustee shall not be required to invest any such money. Money held
in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(vii) The Trustee shall not be deemed to have knowledge
of any matter unless such matter is actually known to a Responsible
Officer.
SECTION 7.02. RIGHTS OF TRUSTEE.
(i) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(ii) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(iii) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence
of any agent appointed with due care.
(iv) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by this
Indenture. A permissive right granted to the Trustee hereunder shall
not be deemed an obligation to act.
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(v) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
(vi) The Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
(vii) The rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and
to each agent, custodian and other Person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if
it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, nor shall it be accountable for the Company's use of the proceeds
from the Securities or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, nor shall it be responsible
for the use or application of any money received by any Paying Agent other
than the Trustee, nor shall it be responsible for any statement or recital
herein or any statement in the Securities or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to Holders a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment on any Security, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each December 31 beginning with the
December 31 following the Closing Date, the Trustee shall mail to the Holders
a brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
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A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed. The Company shall promptly
notify the Trustee when the Securities are listed on any stock exchange or of
any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as
the Company and Trustee shall agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities, damages, claims or expenses incurred by it arising out
of or in connection with the acceptance of its duties and the administration
of the trusts under this Indenture, except as set forth below. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through its own
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(vii) or (viii) hereof occurs,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then
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outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(3) a Custodian or 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 promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
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 principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has
been a Holder for at least six months fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any
further act shall be the successor Trustee or Agent.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of the United
States of America or of any state thereof authorized under such laws to
exercise corporate trustee power, shall be subject to supervision or
examination by federal or state authority and shall have a combined capital
and surplus of at least $100.0 million as set forth in its most recent
published annual report of condition.
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This Indenture shall always have a Trustee who satisfies
the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE
SECURITIES.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
with respect to the Securities, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Securities subject to compliance with
the conditions set forth below in this Article 8. Subject to such compliance,
the application of Section 8.02 or 8.03 hereof shall occur on the date of a
New Lender Deposit (as defined below) or on the 91st day after the date of a
Company Deposit (as defined below), as the case may be.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.02, the Company shall be deemed to
have been discharged from its obligations with respect to all outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in clauses
(i) and (ii) of this Section 8.02, and to have satisfied all its other
obligations under such Securities 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 Securities to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Article 2 and Section 4.02
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 7.07 hereof, and the Company's obligations in connection therewith
and (iv) this Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof with respect to the
Securities.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Company shall be released
from its obligations under the covenants contained in
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Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, and 4.16 and Article
5 hereof with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Securities 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 Securities shall not be
deemed outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Securities, 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(iii)
hereof, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, Sections 6.01(iv) through 6.01(vi) hereof shall not constitute
Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of
either Section 8.02 or Section 8.03 hereof to the outstanding Securities:
(i) The Company shall irrevocably have deposited or
caused to be deposited (a "Company Deposit") or an entity other than
the Company (a "New Lender") shall irrevocably have deposited or
caused to be deposited (a "New Lender Deposit" and, together with
the Company Deposit, the "Deposits") with the Trustee (or another
trustee satisfying the requirements of Section 7.10 who shall agree
to comply with the provisions of this Article 8 applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) cash in U.S.
Dollars in an amount, or (b) non-callable Government Securities that
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, cash in U.S. Dollars in
an amount, or (c) a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge the principal of, premium, if any, interest and
liquidated damages, if any, on such outstanding Securities on the
stated maturity date or the applicable redemption date, as the case
may be.
(ii) Simultaneously with any Deposit, the Company shall
have delivered to the Trustee (or other qualifying trustee) a notice
specifying whether the Company is exercising its option under
Section 8.02 or Section 8.03 hereof or both and whether the
Securities are being defeased to maturity or to a particular
redemption date.
(iii) In the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States confirming that (a) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling or (b) since the Closing Date, there has been a
change in the applicable federal income tax law, in either case to
the effect that, and based thereof such Opinion of Counsel shall
confirm
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that, the Holders of the outstanding Securities 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.
(iv) In the case of an election under Section 8.03
hereof before the date that is one year prior to the final maturity
of the Securities, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States confirming that the
Holders of the outstanding Securities 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.
(v) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing (a) 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) or, (b)
in the case of a Company Deposit, insofar as Section 6.01(vii) or
6.01(viii) hereof is concerned, at any time within 90 days after the
date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(vi) Such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under
any material agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound (other than a
breach, violation or default resulting from the borrowing of funds
to be applied to such deposit).
(vii) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (a) on and after the date of
the New Lender Deposit or after the 90th day following the Company
Deposit, as the case may be, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and (b) all
conditions precedent provided for relating to either the Legal
Defeasance under Section 8.02 hereof or the Covenant Defeasance under
Section 8.03 hereof (as the case may be) have been complied with as
contemplated by this Section 8.04.
(viii) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to its election under Section 8.02 or 8.03 hereof was not
made by the Company with the intent of preferring the Holders of the
Securities over the other creditors of the Company with the intent
of defeating, hindering, delaying or defrauding creditors of the
Company or others.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided
for relating to either the Legal Defeasance under Section 8.02
hereof or the Covenant Defeasance under Section 8.03 hereof (as the
case may be) have been complied with as contemplated by this Section
8.04.
(x) In the case of a New Lender Deposit, the Company
shall have delivered to the Trustee an Officers' Certificate stating
that (a) the New Lender made the New Lender Deposit under an
agreement (the "New Loan Agreement") with the Company; (b) under the
New Loan
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Agreement, the New Lender Deposit constitutes an unsecured loan (the
"New Loan") by the New Lender to the Company; (c) the maturity date
of the New Loan is later than the 90th day after the date of the New
Lender Deposit, and (iv) the New Loan Agreement prohibits
prepayment of the New Loan on or before the 90th day after the date
of the New Lender Deposit, except in the event of a default
thereunder, and the remaining terms of the New Loan Agreement
(including the interest rate on the New Loan) are consistent with
ordinary business practice.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of
the outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Securities of all sums due and to become due thereon in respect of
principal, premium, if any, interest and liquidated damages, if any, but such
money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
the outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
Company's request any money or non-callable Government Securities held by it
as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(i) hereof), are in excess of the amount thereof
which would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Security and remaining unclaimed for two
years after such principal, and premium, if any, interest or liquidated
damages, if any, has become due and payable shall be paid to the Company on
its written request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in the NEW YORK TIMES and THE WALL STREET JOURNAL
National edition, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
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SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S.
Dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Company makes any payment of principal of, premium, if
any, interest or liquidated damages, if any, on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Security to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this
Indenture or the Securities without the consent of any Holder;
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertained Securities in addition
to or in place of certificated Securities;
(iii) to provide for any supplemental indenture required
pursuant to Section 4.15 hereof;
(iv) to provide for the assumption of the Company's
obligations to Holders of Securities in the case of a merger,
consolidation or sale of assets pursuant to Article 5 hereof;
(v) to make any change that would provide any
additional rights or benefits to the Holders of the Securities or
that does not adversely affect the legal rights hereunder of any
such Holder; or
(vi) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture
under the TLA.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to
enter into such supplemental indenture which affects its own rights, duties
or immunities under this Indenture or otherwise.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Except as provided in Section 9.01 and the next succeeding
paragraphs, this Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Securities then outstanding (including consents obtained in connection
with a tender offer or exchange offer for such Securities), and any existing
default or compliance with any provision of this Indenture or the Securities
may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Securities (including consents obtained in
connection with a tender offer or exchange offer for such Securities).
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to
the Trustee of the consent of the Holders as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, 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
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may
waive compliance in a particular instance by the Company with any provision
of this Indenture or the Securities. Without the consent of each Holder
affected, however, an amendment or waiver may not (with respect to any
Security held by a non-consenting Holder):
(i) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Security;
(iii) reduce the rate of or change the time for payment
of interest on any Security;
(iv) waive a Default or Event of Default in the payment
of principal of or premium, if any, or interest on the Securities
(except a rescission of acceleration of the Securities by the
Holders of at least a majority in aggregate principal amount thereof
and a waiver of the payment default that resulted from such
acceleration);
(v) make any Security payable in money other than that
stated in the Securities;
(vi) make any change in Section 6.04 or 6.07 hereof; or
(vii) make any change in this sentence of this Section 9.02.
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SECTION 9.03. COMPLIANCE WITH XXX.
Every amendment to this Indenture of the Securities shall be
set forth in a supplemental indenture that complies with the TIA as then in
effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Xxxxxx's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security if the Trustee receives written notice of
revocation before the date the waiver or amendment becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record
date for determining which Holders must consent to such amendment or waiver.
If the Company fixes a record date, the record date shall be fixed at (i) the
later 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders furnished to the Trustee prior to such
solicitation pursuant to Section 2.06 hereof or (ii) such other date as the
Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may issue and the Trustee shall authenticate new
Securities that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such amendment or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, or liabilities or immunities of the
Trustee. If if does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee shall
be entitled to receive and, subject to Section 7.01, shall be fully protected
in relying upon an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that such amendment or Supplemental Indenture is
authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it shall be valid and binding upon the Company in
accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.
-48-
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee
to the other is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requesteed),
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Treasurer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
-49-
Unless otherwise set forth above, any notice or
communication to a Holder shall be mailed by first class mail, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 10.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
-50-
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been satisfied; PROVIDED,
HOWEVER, that with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS.
No director, officer, employee, incorporator or shareholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Securities by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
SECTION 10.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
SECTION 10.10. GOVERNING LAW.
The internal law of the State of New York, shall govern and be
used to construe this Indenture and the Securities, without regard to the
conflict of laws provisions thereof.
SECTION 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successor.
-51-
SECTION 10.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
SECTION 10.14. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
-52-
SIGNATURES
Dated as of June 16, 2000 XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Corporate Officer
Attest:
/s/ Xxxxxxx X. Silver
-------------------------
Xxxxxxx X. Xxxxxx
Dated as of June 16, 2000 THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxx X. Xxxxx
------------------------------
Name: VAN X. XXXXX
Title: Assistant Vice President
Attest:
--------------------------
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Authorized Signatory
XXXXXX X. XXXXXX
Vice President
-53-
APPENDIX A
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT
TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall
have the meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Offer" means the exchange and issuance by the
Company, pursuant to the Registration Rights Agreement, of a principal amount of
Exchange Securities equal to the outstanding principal amount of Initial
Securities that are tendered by the Holders in connection with such exchange and
issuance.
"Exchange Securities" means the 9 1/4% Senior Notes due
2010 to be issued pursuant to this Indenture in connection with a Registered
Exchange Offer pursuant to the Registration Rights Agreement.
"Initial Purchasers" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, X.X. Xxxxxx Securities Inc., Banc of America Securities
LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Initial Securities" means the 9 1/4% Senior Notes due
2010, issued under this Indenture on or about the date hereof.
"Purchase Agreement" means the Purchase Agreement, dated June
13, 2000, among the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated June 16, 2000, among the Company and the Initial Purchasers.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the registration
statement, if any, filed by the Company, in connection with the offer and sale
of Initial Securities, pursuant to the Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.3(b) hereto.
1.2 OTHER DEFINITIONS
DEFINED IN
TERM SECTION:
---- --------
"Global Security" ..................................................2.1(a)
"Regulation S" .....................................................2.1(a)
"Rule 144A" ........................................................2.1(a)
2. THE SECURITIES
2.1 FORM AND DATING
The Initial Securities are being offered and sold by the
Company pursuant to the Purchase Agreement. Initial Securities offered and sold
to a QIB in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global Securities in definitive, fully registered form
without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit 1 hereto (each, a "Global Security"),
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York, New York office, as
custodian for the Depositary (or with such other custodian as the Depositary may
direct), and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee.
2.2 AUTHENTICATION.
The Trustee shall authenticate and deliver: (1) Initial
Securities for original issue in an aggregate principal amount of $400,000,000
and (2) Exchange Securities for issue only in a Exchange Offer pursuant to the
Registration Rights Agreement, for a like principal amount of Initial
Securities, in each case pursuant to Section 2.03 of this Indenture. The Company
Order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities or Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$400,000,000 except as provided in Section 2.09 of this Indenture.
2.3 LEGEND. (i) Except as permitted by the following
paragraphs (ii), (iii) and (iv), each Security (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED
-2-
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), OR (B) IT IS NOT A U.S. PERSON, IS
NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL
NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER
RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) AND, IN EACH
CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS."
(ii) Prior to any sale or transfer of a Transfer
Restricted Security, the Holder must complete the Assignment Form and present
it to the Registrar. Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act, in the case of any
Transfer Restricted Security that is represented by a Global Security, the
Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Security in certificated or global form that does
not bear the legend set forth
-3-
above and rescind any restriction on the transfer of such Transfer Restricted
Security, if the Holder certifies in writing to the Registrar that its request
for such exchange was made in reliance on Rule 144 (such certification to be
in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities during the
period of the effectiveness of a Shelf Registration Statement with respect to
such Initial Securities, all requirements pertaining to legends on such
Initial Security will cease to apply, and an Initial Security in certificated
or global form that does not bear the legend set forth above will be
available to the transferee of the Holder of such Initial Securities upon
exchange of such transferring Holder's certificated Initial Security or
directions to transfer such Holder's interest in the Global Security, as
applicable.
(iv) Upon the consummation of an Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Exchange Securities in exchange for their Initial
Securities, Exchange Securities in certificated or global form without
restrictive legends, in the form set forth in Exhibit 2 hereto, will be
available to Holders that exchange such Initial Securities in such Exchange
Offer. Initial Securities not exchanged for Exchange Securities shall
continue to bear the legend set forth in Exhibit 1 hereto.
-4-
EXHIBIT 1
to
APPENDIX A
(Face of Initial Security)
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR
(B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS
NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT,
WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
(TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d)
UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) AND, IN EACH CASE, IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS,
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
9 1/4 Senior Note
due September 1, 2010
CUSIP:
No. $
----------------------
XXXXX HEALTHCARE CORPORATION
promises to pay to
-----------------------------------------------------------------------------
or its registered assigns, the principal sum of Dollars on
--------------------
September 1, 2010.
Interest Payment Dates: March 1 and September 1 commencing September 1, 2000.
Record Dates: February 15 and August 15 (whether or not a Business Day).
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may
be registered, in the name of any person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture.
XXXXX HEALTHCARE CORPORATION
By:
--------------------------------
(SEAL)
Dated:
-------------------, --------
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture:
The Bank of New York, as Trustee
By:
--------------------------------
Authorized Signatory
-2-
(Back of Initial Security)
9 1/4% Senior Note
due September 1, 2010
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. INTEREST/LIQUIDATED DAMAGES. Xxxxx Healthcare Corporation,
a Nevada corporation (the "Company"), promises to pay interest on the
principal amount of this Security at the rate and in the manner specified
below.
The Company shall pay interest in cash on the principal
amount of this Security at the rate per annum of 9 1/4%. The Company shall
pay interest semiannually in arrears on March 1 and September 1 of each year,
commencing September 1, 2000 to Holders of record on the immediately
preceding February 15 and August 15, respectively, or if any such date of
payment is not a Business Day on the next succeeding Business Day (each an
"Interest Payment Date").
However, (i) if the Company fails to file a registration
statement (the "Exchange Offer Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), registering a security
substantially identical to this Security pursuant to an exchange offer (the
"Exchange Offer") upon the terms and conditions set forth in the Registration
Rights Agreement with the Commission on or prior to the 30th day after the
date of the filing of the Company's Annual Report on Form 10-K for the year
ending May 31, 2000 (the "Filing Date"), (ii) if the Exchange Offer
Registration Statement is not declared effective by the Commission on or
prior to the 180th day after the Filing Date, (iii) if the Exchange Offer is
not consummated on or before the 30th business day after the Exchange Offer
Registration Statement is declared effective, (iv) if the Company is
obligated to file the registration statement under the Securities Act
registering this Security for resale (the "Shelf Registration Statement") and
the Company fails to file the Shelf Registration Statement with the
Commission on or prior to the 30th day after such filing obligation arises,
(v) if the Company is obligated to file a Shelf Registration Statement and
the Shelf Registration Statement is not declared effective on or prior to the
60th day after the obligation to file a Shelf Registration Statement arises,
or (vi) if the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is declared effective but
thereafter ceases to be effective or useable, for such time of
non-effectiveness or non-usability in connection with resales of the Transfer
Related Securities (as defined below) (each, a "Registration Default"), the
Company agrees to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages ("Liquidated Damages") in an amount equal
to $0.05 per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
Liquidated Damages shall increase by an additional $0.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up
to a maximum amount of Liquidated Damages of $0.35 per week per $1,000 in
principal amount of Transfer Restricted Securities. The Company shall not be
required to pay Liquidated Damages for more than one Registration Default at
any given time. Following the cure of all Registration Defaults, the accrual
of Liquidated Damages will cease.
All accrued Liquidated Damages shall be paid by the Company
to Holders entitled thereto by wire transfer to the accounts specified by
them or by mailing checks to their registered address if no such accounts
have been specified.
-3-
Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
the date of the original issuance of the Securities. To the extent lawful,
the Company shall pay interest on overdue principal at the rate of 1% per
annum in excess of the interest rate then applicable to the Securities; it
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the record date next
preceding the Interest Payment Date, even if such Securities are canceled
after such record date and on or before such Interest Payment Date. The
Holder hereof must surrender this Security to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. Principal, premium, if any, and interest shall be
payable at the office or agency of the Company maintained for such purpose
within the City and State of New York or, at the option of the Company,
payment of interest may be made by check mailed to the Holder's registered
address. Notwithstanding the foregoing, all payments with respect to
Securities, the Holders of which have given appropriate written wire transfer
instructions, on or before the relevant record date, to the Paying Agent
shall be made by wire transfer of immediately available funds to the accounts
specified by such Holders.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall
act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar or co-registrar without prior notice to any Holder. The Company and
any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an
Indenture, dated as of June 16, 2000 (the "Indenture"), between the Company
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TLA") as in effect on the date of the Indenture. The Securities are subject
to all such terms, and Holders are referred to the Indenture and such act for
a statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Securities. The Securities are
unsecured general obligations of the Company. The Securities are limited to
$400,000,000 in aggregate principal amount.
5. MANDATORY REDEMPTION. Subject to the Company's obligation
to make an offer to repurchase Securities under certain circumstances
pursuant to Section 4.12 of the Indenture (as described in paragraph 7
below), the Company shall not be required to make any mandatory redemption or
sinking fund payments with respect to the Securities.
6. OPTIONAL REDEMPTION. The Securities shall be redeemable, in
whole, at any time, or in part, from time to time, at the option of the
Company upon not less than 30 nor more than 60 days' notice at a redemption
price equal to the Make-Whole Price. "Make-Whole Price" means an amount equal
to the greater of (i) 100% of the principal amount of the Securities and (ii)
as determined by an Independent Investment Banker (as defined herein), the
sum of the present values of the remaining scheduled payments of principal
and interest thereon (excluding accrued and unpaid interest to the date of
redemption) discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined herein), plus, in each case, accrued and unpaid
interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue (as defined), assuming
-4-
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price (as defined) for
such redemption date, plus 0.5%
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date,
as set forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release
(or any successor release) is not published or does not contain such prices
on such Business Day, (A) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
of such Reference Treasury Dealer Quotation, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the average of
all such quotations. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Treasury Reference
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
"Independent Investment Banker" means one of the Reference
Treasury Dealers (as defined) appointed by the Company.
"Reference Treasury Dealer" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and its successors; PROVIDED, HOWEVER, that
if the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
7. REPURCHASE AT OPTION OF HOLDER. If there is a Change of
Control Triggering Event, the Company shall offer to repurchase on the Change
of Control Payment Date all outstanding Securities at 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the
Change of Control Payment Date. Holders that are subject to an offer to
purchase shall receive a Change of Control Offer from the Company prior to
any related Change of Control Payment Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons, and in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Securities between a record date and the
corresponding Interest Payment Date.
9. PERSONS DEEMED OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Security, the Trustee, any
Agent and the Company may deem and treat the Person in whose name this
Security is registered as its absolute owner for the purpose of receiving
payment of principal of, premium, if any, and interest on this Security and
for all other purposes whatsoever, whether or not this
-5-
Security is overdue, and neither the Trustee, any Agent nor the Company shall
be affected by notice to the contrary. The registered Holder of a Security
shall be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVERS. Except as provided in
the next succeeding paragraphs, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange offer for
such Securities), and any existing default or compliance with any provision
of the Indenture or the Securities may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange
offer for such Securities).
Without the consent of each Holder affected, an amendment
or waiver may not (with respect to any Security held by a non-consenting
Holder): (i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver; (ii) reduce the principal
of or change the fixed maturity of any Security; (iii) reduce the rate of or
change the time for payment of interest on any Security; (iv) waive a Default
or Event of Default in the payment of principal of or premium, if any, or
interest on the Securities, (except a rescission of acceleration of the
Securities by the Holders of at least a majority in aggregate principal
amount thereof and a waiver of the payment default that resulted from such
acceleration); (v) make any Security payable in money other than that stated
in the Securities; (vi) make any change in the provisions of the Indenture
relating to waivers of past Defaults or the rights of Holders of Securities
to receive payments of principal of or premium, if any, or interest on the
Securities; or (vii) make any change in the foregoing amendment and waiver
provisions.
Notwithstanding the foregoing, without the consent of any
Holder of Securities, the Company and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, defect or inconsistency,
to provide for uncertificated Securities in addition to or in place of
certificated Securities, to provide for any supplemental indenture required
pursuant to Section 4.15 of the Indenture, to provide for the assumption of
the Company's obligations to Holders of Securities in the case of a merger,
consolidation or sale of assets pursuant to Article 5 of the Indenture, to
make any change that would provide any additional rights or benefits to the
Holders of the Securities or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
11. DEFAULTS AND REMEDIES. Events of Default under the
Indenture include: (i) a default for 30 days in the payment when due of
interest on the Securities; (ii) a default in payment when due of the
principal of or premium, if any, on the Securities, at maturity or otherwise;
(iii) a failure by the Company to comply with the provisions of Sections
4.07, 4.09 or 4.12 of the Indenture; (iv) a failure by the Company for 60
days after notice to comply with any of its other agreements in the Indenture
or the Securities; (v) any default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Significant Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Significant Subsidiaries), whether such Indebtedness or
Guarantee exists on the date of the Indenture or is created after the date of
the Indenture, which default (a) constitutes a Payment Default or (b) results
in the acceleration of such Indebtedness prior to its express maturity and,
in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has
been a Payment Default or that has been so accelerated, aggregates $25.0
million or more; (vi) failure by the Company or any of its Significant
Subsidiaries to pay a final judgment or final judgments aggregating in excess
of $25.0 million, which judgment or judgments are not paid, discharged or
stayed for a period of 60 days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
-6-
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities by written notice to the Company and the Trustee, may
declare all the Securities to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries, all outstanding Securities shall become due and
payable without further action or notice. Holders of the Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Securities
notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in the Holders' interest.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Securities pursuant to the optional redemption provisions of the Indenture,
an equivalent premium shall also become and be immediately due and payable to
the extent permitted by law upon the acceleration of the Securities.
The Holders of not less than a majority in the aggregate
principal amount of the Securities then outstanding by written notice to the
Trustee may on behalf of the Holders of all of the Securities waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Securities.
The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
The above description of Events of Default and remedies is
qualified by reference, and subject in its entirety, to the more complete
description thereof contained in the Indenture.
12. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to incur
additional indebtedness and issue preferred stock, pay dividends or make
other distributions, repurchase Equity Interests or subordinated
indebtedness, create certain liens, enter into certain transactions with
affiliates, issue or sell Equity Interests of the Company's Subsidiaries,
issue Guarantees of Indebtedness by the Company's Subsidiaries and enter into
certain mergers and consolidations.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
14. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS. No director, officer, employee, incorporator or shareholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of Securities by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a
waiver is against public policy.
15. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
-7-
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties). JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the
Securities and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
18. GOVERNING LAW. The internal laws of the State of New York
shall govern and be used to construe the Indenture and the Securities,
without regard to conflict of laws provisions thereof.
-8-
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value
received (I) or (we) hereby sell, assign and transfer this Security to
______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and do hereby irrevocably constitute and appoint _____________________________
_________________________ Attorney to transfer this Security on the books of the
Company with full power of substitution in the premises.
______________________________________________________________________________
Date: ____________________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.*
____________________
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i)
The Securities Transfer Agent Medallion Program (Stamp); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) such other guarantee program acceptable to the
Trustee.
-9-
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Company or any Subsidiary thereof; or
(2) / / to a person whom the Holder reasonably believes is a
"qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) purchasing for
its own account or for the account of a qualified
institutional buyer in compliance with Rule 144A
under the Securities Act; or
(3) / / outside the United States in an offshore transaction
in compliance with Rule 903 or Rule 904 under the
Securities Act; or
(4) / / pursuant to the exemption from registration provided
by Rule 144 under the Securities Act.
(5) / / pursuant to an effective registration statement under
the Securities Act; or
(6) / / in accordance with another exemption from the
registration requirements of the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof;
PROVIDED, HOWEVER, that if box (6) is checked, the Trustee may
require, prior to registering any such transfer of the Securities,
such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
____________________________
Signature
Signature Guarantee:
____________________________ ____________________________
Signature must be guaranteed Signature
-10-
-------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, 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:______________________ ___________________________
Signature
-11-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this
Security purchased by the Company pursuant to Section 4.12 of the Indenture,
check the box below:
/ / Section 4.12
(Change of Control)
If you want to have only part of the Security purchased by
the Company pursuant to Section 4.12 of the Indenture, state the amount you
elect to have purchased:
$ ________________
Date: ____________
Your Signature:__________________________________
(Sign exactly as your name appears on the face of
this Security)
Signature Guarantee.*
__________________________
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i)
The Securities Transfer Agent medallion Program (Stamp); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) such other guarantee program acceptable to the
Trustee.
-12-
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Amount of decrease Amount of increase
in Principal in Principal Principal amount of this Signature of authorized
Date of Amount of this Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Depositary
-13-
EXHIBIT 2
to
APPENDIX A
(Face of Exchange Security)
9 1/4% Senior Note
due September 1, 2010
CUSIP:
No. $__________
XXXXX HEALTHCARE CORPORATION
promises to pay to
_________________________________________________________________
or its registered assigns, the principal sum of _________________ Dollars on
September 1, 2010.
Interest Payment Dates: March 1 and September 1 commencing September 1, 2000.
Record Dates: February 15 and August 15 (whether or not a Business Day).
XXXXX HEALTHCARE CORPORATION
By:_________________________
(SEAL)
Dated:______________________
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture:
The Bank of New York, as Trustee
By:_________________________
Authorized Signatory
(Back of Exchange Security)
9 1/4% Senior Note
due September 1, 2010
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. INTEREST. Xxxxx Healthcare Corporation, a Nevada
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate and in the manner specified below.
The Company shall pay interest in cash on the principal
amount of this Security at the rate per annum of 9 1/4%. The Company shall pay
interest semiannually in arrears on March 1 and September 1 of each year,
commencing September 1, 2000 to Holders of record on the immediately
preceding February 15 and August 15, respectively, or if any such date of
payment is not a Business Day on the next succeeding Business Day (each an
"Interest Payment Date").
Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
the date of the original issuance of the Securities. To the extent lawful,
the Company shall pay interest on overdue principal at the rate of 1% per
annum in excess of the interest rate then applicable to the Securities; it
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the record date next
preceding the Interest Payment Date, even if such Securities are canceled
after such record date and on or before such Interest Payment Date. The
Holder hereof must surrender this Security to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. Principal, premium, if any, and interest shall be
payable at the office or agency of the Company maintained for such purpose
within the City and State of New York or, at the option of the Company,
payment of interest may be made by check mailed to the Holder's registered
address. Notwithstanding the foregoing, all payments with respect to
Securities, the Holders of which have given appropriate written wire transfer
instructions, on or before the relevant record date, to the Paying Agent
shall be made by wire transfer of immediately available funds to the accounts
specified by such Holders.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall
act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar or co-registrar without prior notice to any Holder. The Company and
any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an
Indenture, dated as of June 16, 2000 (the "Indenture"), between the Company
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA") as in effect on the date of the Indenture. The Securities are subject
to all such terms, and Holders are referred to the Indenture and such act
for a statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Securities. The Securities are
unsecured general obligations of the Company. The Securities are limited to
$400,000,000 in aggregate principal amount.
-2-
5. MANDATORY REDEMPTION. Subject to the Company's obligation
to make an offer to repurchase Securities under certain circumstances
pursuant to Section 4.12 of the Indenture (as described in paragraph 7
below), the Company shall not be required to make any mandatory redemption or
sinking fund payments with respect to the Securities.
6. OPTIONAL REDEMPTION. The Securities shall be redeemable, in
whole, at any time, or in part, from time to time, at the option of the
Company upon not less than 30 nor more than 60 days' notice at a redemption
price equal to the Make-Whole Price. "Make-Whole Price" means an amount equal
to the greater of (i) 100% of the principal amount of the Securities and (ii)
as determined by an Independent Investment Banker (as defined herein), the
sum of the present values of the remaining scheduled payments of principal
and interest thereon (excluding accrued and unpaid interest to the date of
redemption) discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined herein), plus, in each case, accrued and unpaid
interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue (as defined), assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price (as defined) for such
redemption date, plus 0.5%.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date,
as set forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release
(or any successor release) is not published or does not contain such prices
on such Business Day, (A) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
of such Reference Treasury Dealer Quotation, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the average of
all such quotations. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Treasury Reference
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
"Independent Investment Banker" means one of the Reference
Treasury Dealers (as defined) appointed by the Company.
"Reference Treasury Dealer" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and its successors; PROVIDED, HOWEVER, that
if the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
7. REPURCHASE AT OPTION OF HOLDER. If there is a Change of
Control Triggering Event, the Company shall offer to repurchase on the Change
of Control Payment Date all outstanding Securities at
-3-
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon to the Change of Control Payment Date. Holders that are
subject to an offer to purchase shall receive a Change of Control Offer from
the Company prior to any related Change of Control Payment Date and may elect
to have such Securities purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons, and in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Securities between a record date and the
corresponding Interest Payment Date.
9. PERSONS DEEMED OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Security, the Trustee, any
Agent and the Company may deem and treat the Person in whose name this
Security is registered as its absolute owner for the purpose of receiving
payment of principal of, premium, if any, and interest on this Security and
for all other purposes whatsoever, whether or not this Security is overdue,
and neither the Trustee, any Agent nor the Company shall be affected by
notice to the contrary. The registered Holder of a Security shall be treated
as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVERS. Except as provided in
the next succeeding paragraphs, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange offer for
such Securities), and any existing default or compliance with any provision
of the Indenture or the Securities may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange
offer for such Securities).
Without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Security held by a
non-consenting Holder): (i) reduce the principal amount of securities whose
Holders must consent to an amendment, supplement or waiver; (ii) reduce the
principal of or change the fixed maturity of any Security; (iii) reduce the
rate of or change the time for payment of interest on any Security; (iv)
waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Securities, (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount thereof and a waiver of the payment default that
resulted from such acceleration); (v) make any Security payable in money
other than that stated in the Securities; (vi) make any change in the
provisions of the Indenture relating to waivers of past Defaults or the
rights of Holders of Securities to receive payments of principal of or
premium, if any, or interest on the Securities; or (vii) make any change in
the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of
any Holder of Securities, the Company and the Trustee may amend or supplement
the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to provide for any supplemental indenture
required pursuant to Section 4.15 of the Indenture, to provide for the
assumption of the Company's obligations to Holders of Securities in the case
of a merger, consolidation or sale of assets pursuant to Article 5 of the
Indenture, to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect
the legal rights under the Indenture of any such Holder, or to comply with
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA.
-4-
11. DEFAULTS AND REMEDIES. Events of Default under the
Indenture include: (i) a default for 30 days in the payment when due of
interest on the Securities; (ii) a default in payment when due of the
principal of or premium, if any, on the Securities, at maturity or otherwise;
(iii) a failure by the Company to comply with the provisions of Sections
4.07, 4.09 or 4.12 of the Indenture; (iv) a failure by the Company for 60
days after notice to comply with any of its other agreements in the Indenture
or the Securities; (v) any default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Significant Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Significant Subsidiaries), whether such Indebtedness or
Guarantee exists on the date of the Indenture or is created after the date of
the Indenture, which default (a) constitutes a Payment Default or (b) results
in the acceleration of such Indebtedness prior to its express maturity and,
in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has
been a Payment Default or that has been so accelerated, aggregates $25.0
million or more; (vi) failure by the Company or any of its Significant
Subsidiaries to pay a final judgment or final judgments aggregating in excess
of $25.0 million, which judgment or judgments are not paid, discharged or
stayed for a period of 60 days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities by written notice to the Company and the Trustee, may
declare all the Securities to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries, all outstanding Securities shall become due and
payable without further action or notice. Holders of the Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Securities
notice of any continuing Default or Event of Default (except a Default of
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in the Holders' interest.
In the case of any Event of Default occurring by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of
the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Securities pursuant to the optional redemption provisions of the Indenture,
an equivalent premium shall also become and be immediately due and payable
to the extent permitted by law upon the acceleration of the Securities.
The Holders of not less than a majority in aggregate
principal amount of the Securities then outstanding by written notice to the
Trustee may on behalf of the Holders of all of the Securities waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Securities.
The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
The above description of Events of Default and remedies
is qualified by reference, and subject in its entirety, to the more complete
description thereof contained in the Indenture.
12. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to incur
additional indebtedness and issue preferred stock, pay dividends or
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make other distributions, repurchase Equity interests or subordinated
indebtedness, create certain liens, enter into certain transactions with
affiliates, issue or sell Equity Interests of the Company's Subsidiaries,
issue Guarantees of Indebtedness by the Company's Subsidiaries and enter into
certain mergers and consolidations.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
14. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS. No director, officer, employee, incorporator or shareholder
of the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of Securities by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a
waiver is against public policy.
15. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the
Securities and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Request may be made to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
18. GOVERNING LAW. The internal laws of the State of New
York shall govern and be used to construe the Indenture and the Securities,
without regard to conflict of laws provisions thereof.
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ASSIGNMENT FORM
To assign this Security, fill in the form below: For value
received (I) or (we) hereby sell, assign and transfer this Security to
__________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Print or type asignee's name, address and zip code)
and do hereby irrevocably constitute and appoint ________________ Attorney to
transfer this Security on the books of the Company with full power of
substitution in the premises.
__________________________________________________________________________
Date: ____________________________
Your Signature:________________________________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee.*
_______________________
*NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) The New York Stock
Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this
Security purchased by the Company pursuant to Section 4.12 of the Indenture,
check the box below;
/ / Section 4.12
(Change of Control)
If you want to have only part of the Security purchased by
the Company pursuant to Section 4.12 of the Indenture, state the amount you
elect to have purchased;
$__________________________
Date:______________________
Your Signature:________________________________
(Sign exactly as your name appears on the face
of this Security)
Signature Guarantee.*
_______________________
*NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (Stamp); (ii) The New York Stock
Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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APPENDIX B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of ________________, between ________________ (the "Guarantor"), a
subsidiary of Xxxxx Healthcare Corporation (or its successor), a Nevada
corporation (the "Company"), and The Bank of New York, as trustee under the
indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture (the "Indenture"), dated as of June 16, 2000,
providing for the issuance of an aggregate principal amount of $400,000,000
of 9 1/4% Senior Notes due 2010 (the "Securities");
WHEREAS, Section 4.15 of the Indenture provides that under
certain circumstances the Company is required to cause the Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Guarantor shall guarantee the payment of the Securities pursuant to a
Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor and the Trustee mutually covenant and agree for
the equal and ratable benefit of the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the
Securities or the Obligations of the Company hereunder and thereunder, that:
(a) the principal of, premium, if any, and interest on the Securities will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal, premium, if
any, and (to the extent permitted by law) interest on any interest on the
Securities and all other payment Obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Securities or any of such
other payment Obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, redemption or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason the
Guarantor shall be obligated to pay the same immediately. An Event of Default
under the Indenture or the Securities shall constitute an event of default
under this Guarantee, and shall entitle the Holders of Securities to
accelerate the Obligations of the Guarantor hereunder in the same manner and
to the same extent as the Obligations of the Company. The Guarantor hereby
agrees that its Obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities 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
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circumstance which might otherwise constitute a legal or equitable discharge
or defense of the Guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that this Guarantee will not be discharged except by complete
performance of the Obligations contained in the Securities and the Indenture.
If any Holder or the Trustee is required by any court or otherwise to return
to the Company, the Guarantor, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantor,
any amount paid by either to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantor agrees that it shall not be entitled to, and hereby
waives, any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. The Guarantor further agrees that, as between
the Guarantor, on 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 6 of the Indenture for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such Obligations
as provided in Article 6 of the Indenture, such Obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantor for
the purpose of this Guarantee.
3. EXECUTION AND DELIVERY OF GUARANTEE. To evidence its
Guarantee set forth in Section 2, the Guarantor hereby agrees that a notation
of such Guarantee substantially in the form of Exhibit 1 shall be endorsed by
an officer of such Guarantor on each Security authenticated and delivered by
the Trustee and that this Supplemental Indenture shall be executed on behalf
of such Guarantor, by manual or facsimile signature, by its President or one
of its Vice Presidents.
The Guarantor hereby agrees that its Guarantee set forth in
Section 2 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer whose signature is on this Supplemental
Indenture or on the Guarantee no longer holds that office at the time the
Trustee authenticates the Security on which a Guarantee is endorsed, the
Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantors.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 of the
Indenture, nothing contained in this Supplemental Indenture or in the
Securities shall prevent any consolidation or merger of the Guarantor with or
into the Company or any Subsidiary of the Company that has executed and
delivered a supplemental indenture substantially in the form hereof or shall
prevent any sale or conveyance of the property of the Guarantor as an
entirety or substantially as an entirety, to the Company or any such
Subsidiary of the Company.
(b) Except as provided in Section 4(n) hereof or in a
transaction referred to in Section 5 hereof, the Guarantor shall not
consolidate with or merge with or into, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets to,
another Person unless (1) either (x) the Guarantor shall be the surviving
Person of such merger or consolidation or (y) the surviving Person or
transferee is a corporation, partnership or trust organized and existing
under the laws of the United States, any state thereof or the District of
Columbia and such surviving Person or transferee shall expressly assume all
the obligations of the Guarantor under this Guarantee and the Indenture
pursuant to a supplemental
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indenture substantially in the form hereof; (2) immediately after giving
effect to such transaction (including the incurrence of any Indebtedness
incurred or anticipated to be incurred in connection with such transaction)
no Default or Event of Default shall have occurred and be continuing; and (3)
the Company has delivered to the Trustee an Officers' Certificate and Opinion
of Counsel, each stating that such consolidation, merger or transfer complies
with the Indenture, that the surviving Person agrees to be bound thereby, and
that all conditions precedent in the Indenture relating to such transaction
have been satisfied. For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one
or more Subsidiaries of the Guarantor, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Guarantor, shall
be deemed to be the transfer of all or substantially all of the properties
and assets of the Guarantor.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all
of the assets of the Guarantor in accordance with this Section 4(b) hereof,
the 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.
Such successor corporation thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
5. RELEASES FOLLOWING SALE OF ASSETS. Concurrently with any
sale, lease, conveyance or other disposition (by merger, consolidation or
otherwise) of assets of the Guarantor (including, if applicable, disposition
of all of the Capital Stock of the Guarantor), any Liens in favor of the
Trustee in the assets sold, leased, conveyed or otherwise disposed of shall
be released. If the assets sold, leased, conveyed or otherwise disposed of (by
merger, consolidation or otherwise) include all or substantially all of the
assets of the Guarantor or all of the Capital Stock of the Guarantor in each
case, in compliance with the terms of the Indenture, then the Guarantor shall
be automatically and unconditionally released from and relieved of its
Obligations under its Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate to the effect that such sale, lease,
conveyance or other disposition was made by the Company in accordance with
the provisions of the Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Guarantor from
its Obligations under its Guarantee.
6. LIMITATION ON GUARANTOR LIABILITY. For purposes hereof, the
Guarantor's liability will be that amount from time to time equal to the
aggregate liability of the Guarantor hereunder, but shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Company under
the Securities and the Indenture and (ii) the amount, if any, which would not
have (A) rendered the Guarantor "insolvent" (as such term is defined in the
federal Bankruptcy Law and in the Debtor and Creditor Law of the State of New
York) or (B) left it with unreasonably small capital at the time its
Guarantee of the Securities was entered into, after giving effect to the
incurrence of existing Indebtedness immediately prior to such time; PROVIDED
that it shall be a presumption in any lawsuit or other proceeding in which
the Guarantor is a party that the amount guaranteed pursuant to its Guarantee
is the amount set forth in clause (i) above unless any creditor, or
representative of creditors of the Guarantor, or debtor in possession of
trustee in bankruptcy of the Guarantor, otherwise proves in such a lawsuit
that the aggregate liability of the Guarantor is limited to the amount set
forth in clause (ii). In making any determination as to the solvency or
sufficiency of capital of the Guarantor in accordance with the previous
sentence, the right of the Guarantor to contribution from other Subsidiaries
of the Company that have executed and delivered a supplemental indenture
substantially in the form hereof and any other rights the Guarantor may have,
contractual or otherwise, shall be taken into account.
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7. "TRUSTEE" TO INCLUDE PAYING AGENT. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting under the Indenture, the term "Trustee" as used in this
Supplemental Indenture shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Supplemental Indenture in place of the
Trustee.
8. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guarantor, as such, shall have any
liability for any obligations of the Company or the Guarantor under the
Securities, any Guarantees, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Securities by accepting a Security
waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Securities. Such waiver may not be
effective to waiver liabilities under the federal securities laws and it is
the view of the Commission that such a waiver is against public policy.
9. NEW YORK LAW TO GOVERN. The internal law of the State of
New York shall govern and be used to construe this Supplemental Indenture.
10. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
11. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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EXHIBIT 1 TO SUPPLEMENTAL INDENTURE
GUARANTEE
The Guarantor hereby unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Securities or the Obligations of the
Company to the Holders of the Trustee under the Securities or under the
Indenture, that: (a) the principal of, and premium, if any, and interest on
the Securities will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on overdue principal,
premium, if any, and (to the extent permitted by law) interest on any
interest on the Securities and all other payment Obligations of the Company
to the Holders or the Trustee under the Indenture or under the Securities
will be promptly paid in full, all in accordance with the terms thereof; and
(b) in case of any extension of time of payment or renewal of any Securities
or any of such other payment Obligations, the same will be promptly paid in
full when due in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, redemption or otherwise. Failing
payment when due of any amount so guaranteed, for whatever reason, the
Guarantor shall be obligated to pay the same immediately.
The obligations of the Guarantor to the Holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture
are expressly set forth in a Supplemental Indenture, dated as of
____________, ______ to the Indenture, and reference is hereby made to the
Indenture, as supplemented, for the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full
force and effect and shall be binding upon the Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full
and final payment of all the Company's Obligations under the Securities and
the Indenture and shall inure to the benefit of the successors and assigns of
the Trustee and the Holders of Securities and, in the event of any transfer
or assignment of rights by any Holder of Securities or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof. This is a Guarantee of payment and not a
guarantee of collection.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which
this Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
For purposes hereof, the Guarantor's liability will be that
amount from time to time equal to the aggregate liability of the Guarantor
hereunder, but shall be limited to the lesser of (i) the aggregate amount of
the Obligations of the Company under the Securities and the Indenture and
(ii) the amount, if any, which would not have (A) rendered the Guarantor
"insolvent" (as such term is defined in the federal Bankruptcy Law and in the
Debtor and Creditor Law of the State of New York) or (B) left it with
unreasonably small capital at the time its Guarantee of the Securities was
entered into, after giving effect to the incurrence of existing Indebtedness
immediately prior to such time; PROVIDED that it shall be a presumption in
any lawsuit or other proceeding in which the Guarantor is a party that the
amount guaranteed pursuant to its Guarantee is the amount set forth in clause
(i) above unless any creditor, or representative of creditors of the
Guarantor, or debtor in possession or trustee in bankruptcy of the Guarantor,
otherwise proves in such a lawsuit that the aggregate liability of the
Guarantor is limited to the amount set forth in clause (ii). The Indenture
provides that, in making any determination as to the solvency or sufficiency
of capital of a Guarantor in accordance with the previous sentence, the right
of the Guarantor to contribution
from other Subsidiaries of the Company that have become Guarantors and any other
rights the Guarantor may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given
in the Indenture unless otherwise indicated.
[GUARANTOR]
By:___________________________
Name:
Title:
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