1
EXHIBIT 4.2
EXECUTION COPY
================================================================================
HEALTHCOR HOLDINGS, INC., as Issuer,
THE GUARANTORS SIGNATORIES HERETO, as Guarantors,
and
NORWEST BANK MINNESOTA, N.A., as Trustee
____________________
INDENTURE
Dated as of December 1, 1997
$80,000,000
11% Senior Notes due 2004
================================================================================
2
Reconciliation and Tie between Trust Indenture Act
of 1939 and Indenture, dated as of December 1, 1997*
Trust Indenture Indenture
Act Section Section
---------------- ----------
Section 310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08
(b)(1) 7.10
(b)(9) 7.10
(c) N.A.
Section 311 (a) 7.11
(b) 7.11
(c) N.A.
Section 312 (a) 2.05
(b) 11.03
(c) 11.03
Section 313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 11.02
(d) 7.06
Section 314 (a) 4.02; 4.04; 11.02
(b) N.A.
(c)(1) 11.04; 11.05
(c)(2) 11.04; 11.05
(c)(3) 11.04; 11.05
(d) N.A.
(e) 11.05
(f) N.A.
Section 315 (a) 7.01; 7.02
(b) 7.05; 11.02
(c) 7.01
(d) 6.05; 7.01; 7.02
(e) 6.11
Section 316 (a)(last sentence) 11.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 8.02
(b) 6.07
(c) 8.04
Section 317 (a)(1) 6.08
(a)(2) 6.09
(b) 7.12
Section 318 (a) 11.01
"N.A." means Not Applicable.
__________
* Note: This reconciliation and tie shall not, for any purpose, be
deemed to be part of this Indenture.
i
3
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 2. THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.01. Dating; Incorporation of Form in Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.05. Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 2.09. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 2.12. Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 2.13. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 2.14. Wire Payments to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 3. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.02. Selection by Trustee of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.06. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 3.07. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 3.08. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 4. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.01. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.02. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.03. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.06. Limitations on Additional Indebtedness and Preferred Equity Interests . . . . . . . . . . . . 52
Section 4.07. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 4.08. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.09. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 4.10. [Intentionally Deleted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ii
4
Section 4.11. Limitation on Subsidiaries and Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . 57
Section 4.12. Additional Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries . . . . . . . . 58
Section 4.14. Restriction on Sale and Issuance of Subsidiary Interests . . . . . . . . . . . . . . . . . . 59
Section 4.15. Limitation on Sale and Lease-Back Transactions . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.16. Line of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.17. Limitation on Status as Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.18. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.19. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.20. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 4.21. Limitation on Certain Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 4.22. General Provisions Related to Change of Control Offers and Excess Proceeds Offers . . . . . . 65
Section 4.23. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 4.24. Maintenance of Properties and Insurance; Books and Records; Compliance with Laws. . . . . . . 66
Section 4.25. Further Assurance to the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 5. SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.01. Merger, Consolidation or Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.02. Successor Person Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 6. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.04. Waiver of Past Defaults and Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 6.12. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE 7. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion . . . . . . . . . . . . . . . . . . 80
iii
5
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 81
Section 7.12. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 8.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 8.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 8.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 8.04. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 8.05. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 8.06. Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.02. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 9.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 86
Section 9.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscel. . . . . . 88
Section 9.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 9.07. Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 9.08. Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE 10. GUARANTEE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.02. Execution and Delivery of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.03. Limitation of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.04. Release of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.05. Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.03. Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 95
Section 11.05. Statements Required in Certificate and Opinion . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.06. When Treasury Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.07. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.08. Business Days; Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.10. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.11. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.12. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.13. Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.14. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 11.15. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
iv
6
EXECUTION COPY
INDENTURE, dated as of December 1, 1997, among HEALTHCOR
HOLDINGS, INC., a Delaware corporation, as issuer (the "Company"), the
Guarantors signatory hereto from time to time (the "Guarantors") and NORWEST
BANK MINNESOTA, N.A., as trustee (the "Trustee").
The Company and the Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Notes (as hereinafter defined) to be issued as provided for in this Indenture.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
11% Senior Notes due 2004, unconditionally guaranteed by the Guarantors (the
"Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means the global note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Subsidiary or assumed in connection
with an Asset Acquisition from such Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities (including, without limitation, any guarantees of
Indebtedness)), but excluding liabilities under the Guarantee of such Guarantor
at such date and (y) the present fair salable value of the assets of such
Guarantor exceeds the total amount of its debts (after giving effect to all
other fixed and contingent liabilities (including, without limitation, any
guarantees of Indebtedness) and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding Indebtedness in respect of the Guarantee, as
they become absolute and matured.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
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
7
2
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands.
"Applicable Procedures" means with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer
or exchange.
"Asset Acquisition" means (a) an Investment by the Company or
any Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company, or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person (other than a
Subsidiary of the Company) which constitute all or substantially all of the
assets of such Person or (c) the acquisition by the Company or any Subsidiary
of the Company of any division or line of business of any Person (other than a
Subsidiary of the Company).
"Asset Sale" means the direct or indirect sale, transfer,
issuance, conveyance, lease (other than operating leases entered into in the
ordinary course of business pursuant to ordinary business terms), assignment or
other disposition (including, without limitation, by eminent domain,
condemnation or similar governmental proceeding) and any merger or
consolidation of any Subsidiary of the Company with or into another Person
(other than the Company or any Wholly-Owned Subsidiary of the Company) whereby
such Subsidiary shall cease to be a Wholly-Owned Subsidiary (each, a
"disposition" or "issuance") involving in any consecutive twelve month period
property or assets with a fair market value in excess of $1,000,000 of (a) any
Equity Interest in any Subsidiary, (b) real property owned by the Company or
any Subsidiary thereof, or a division, line of business or comparable business
segment of the Company or any Subsidiary thereof or (c) other property, assets
or rights (including, without limitation leasehold rights) of the Company or
any Subsidiary thereof, provided, however, that, except as noted in the last
sentence in this paragraph, Asset Sales shall not include (i) dispositions or
issuances to the Company or to a Subsidiary thereof or to any other Person if
after giving effect to such disposition or issuance such other Person becomes a
Wholly-Owned Subsidiary of the Company, (ii) transactions involving the Company
which are subject to and effected in compliance with Section 5.01, (iii)
dispositions of services and products in the ordinary course of business, (iv)
a disposition that is an Investment or a Restricted Payment not prohibited by
Section 4.07, (v) a disposition that complies with the covenant described under
Section 4.20, (vi) exchanges of assets that comply with the requirements of
Section 4.21(c), (vii) a designation of a Subsidiary as an Unrestricted
Subsidiary if permitted under this Indenture, (viii) the grant in the ordinary
course of business of any
8
3
license, (ix) the disposition of any Temporary Cash Investment, (x) any
disposition of defaulted receivables for collection, (xi) the grant of any Lien
securing Indebtedness permitted under this Indenture and (xii) the disposition
of assets received in settlement of obligations (including, without limitation,
under any bankruptcy or similar proceeding) owing to the Company or any
Subsidiary, which obligations were incurred in the ordinary course of business.
Notwithstanding any provision of this Indenture to the contrary, the expiration
or non-renewal of any lease of property at the normal expiration date thereof
shall not constitute an Asset Sale. For purposes of the definition of
Consolidated Fixed Charge Coverage Ratio, transactions referred to in clauses
(iv), (v), (vi) or (vii) shall be included as Asset Sales.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Company or any Subsidiary thereof from such Asset Sale
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale, (b) payment of all brokerage commissions, underwriting, legal,
accounting, title and other fees, costs and expenses related to such Asset
Sale, (c) provision for minority interest Holders in any Subsidiary or in any
asset subject to such Asset Sale as a result of such Asset Sale, (d) payments
made to retire Indebtedness secured by the assets subject to such Asset Sale or
otherwise required to be paid and (e) deduction of appropriate amounts to be
provided by the Company or a Subsidiary thereof as a reserve, in accordance
with GAAP, against any liabilities associated with the assets disposed of in
such Asset Sale and retained by the Company or a Subsidiary thereof after such
Asset Sale including, without limitation, pension and other post employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with the assets disposed of in such
Asset Sale and (ii) any securities, notes or other obligations received by the
Company or any Subsidiary thereof from such Asset Sale upon the liquidation or
conversion of such securities, notes or other obligations into cash prior to
the Reinvestment Date.
"Attributable Indebtedness" when used with respect to any Sale
and Lease-Back Transaction means, as at the time of determination, the present
value (discounted at a rate equivalent to the interest rate implicit in the
lease, compounded on a semi-annual basis) of the total obligations of the
lessee for rental payments (after excluding all amounts required to be paid on
account of maintenance and repairs, insurance, taxes, utilities and other
similar expenses payable by the lessee pursuant to the terms of the lease)
during the remaining term of the lease included in any such Sale-Lease-Back
Transaction or until the earliest date on which the lessee may terminate such
lease without penalty or upon payment of a penalty (in which case the rental
payments shall include such penalty).
"Board of Directors" means, as to any Person, the board of
directors or any duly authorized committee thereof of such Person or, if such
Person is a partnership (or other non-corporate Person), of the managing
general partner or partners (or Persons serving an analogous function) of such
Person.
9
4
"Board Resolution" means, as to any Person, a copy of a
resolution certified pursuant to an Officers' Certificate to have been duly
adopted by the Board of Directors of such Person, and to be in full force and
effect, and, if required hereunder, delivered to the Trustee.
"Capital Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cedel" means Cedel Bank, societe anonyme.
"Certificated Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, in the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or 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" (as such term is used in Section
13(d)(3) of the Exchange Act); (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company; (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than an Excluded
Person, is or becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition), directly or
indirectly, of more than 35% of the Common Equity Interest of the Company
(measured by voting power rather than number of shares or equivalent units); or
(iv) the first day on which less than a majority of the members of the Board of
Directors of the Company are Continuing Directors.
"Common Equity Interest" of any Person means all Equity
Interests of such Person that are generally entitled to (i) vote in the
election of directors of such Person or (ii) if such Person is not a
corporation, vote or otherwise participate in the selection of the governing
body, partners, managers or others that will control the management and
policies of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
of this Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name
of the
10
5
Company by any two of the following: the Chief Executive Officer; the
President; any Vice President; the Chief Financial Officer; the Treasurer; or
the Secretary or any Assistant Secretary (but not both the Secretary and any
Assistant Secretary) of the Company.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus, to
the extent deducted in computing such Consolidated Net Income, (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with
an Asset Sale, (ii) provision for taxes based on income or profits, (iii)
consolidated interest expense whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations) and (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) in each case, on a consolidated basis and determined in
accordance with GAAP. Notwithstanding the foregoing, the provision for taxes
based on the income or profits of, and the depreciation and amortization of, a
Subsidiary of a Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in the 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 such Subsidiary or
its stockholders.
"Consolidated Fixed Charge Coverage Ratio" means with respect
to any Person, the ratio of the aggregate amount of Consolidated Cash Flow of
such Person for the four full fiscal quarters immediately preceding the date of
the transaction (the "Transaction Date") giving rise to the need to calculate
the Consolidated Fixed Charge Coverage Ratio (such four full fiscal quarter
period being referred to herein as the "Four Quarter Period") to the aggregate
amount of Consolidated Fixed Charges of such Person for the Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of
this definition, "Consolidated Cash Flow" and "Consolidated Fixed Charges"
shall be calculated after giving effect on a pro forma basis for the period of
such calculation to, without duplication, (a) the incurrence of any
Indebtedness of such Person or any of its Subsidiaries (and the application of
the net proceeds thereof) during the period commencing on the first day of the
Four Quarter Period to and including the Transaction Date (the "Reference
Period"), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation (and the application of the
net proceeds thereof), as if such incurrence
11
6
(and application) occurred on the first day of the Four Quarter Period (it
being understood that with respect to Indebtedness incurred under a revolving
facility used primarily to finance working capital, the average daily principal
amount outstanding during the Reference Period shall be deemed to be the amount
incurred during the Reference Period), and (b) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person who becomes a Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Reference Period, as if such Asset Sale or
Asset Acquisition occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining this "Consolidated Fixed Charge Coverage Ratio," (i) interest on
outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and (ii) if
interest on indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Four Quarter Period. In calculating the Consolidated Fiscal
Charge Coverage Ratio and giving pro forma effect to the incurrence of
Indebtedness during a Reference Period, pro forma effect shall be given to use
of proceeds thereof to permanently repay or retire Indebtedness. If such Person
or any of its Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, for purposes of determining the "Consolidated Fixed Charge
Coverage Ratio," effect shall be given to the incurrence of such guaranteed
Indebtedness as if such Person or such Subsidiary had directly incurred or
otherwise assumed such guaranteed Indebtedness.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum of, without duplication, the amounts for such period of
(i) the consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), (ii) the consolidated interest
expense of such Person and its Subsidiaries that was capitalized during such
period, (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 dividend payments,
whether or not in cash, on any series of Disqualified Equity Interests of such
Person or any of its Subsidiaries, other than dividend payments on Disqualified
Equity Interests payable solely in Equity Interests of the Company, times (b) a
fraction, the numerator of which is one and the denominator
12
7
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.
"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 (but not loss) 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, (iv) the
cumulative effect of a change in accounting principles shall be excluded and
(v) any non- cash compensation expense in connection with the issuance of
employee stock options shall be excluded.
"Consolidated Net Worth" means, with respect to any Person at
any date, the consolidated stockholders' equity of such Person less the amount
of such stockholders' equity attributable to Disqualified Equity Interests of
such Person and its Subsidiaries, as determined in accordance with GAAP, less
(i) all write-ups (other than write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the Issue Date in the book value of any asset owned by such
Person or a consolidated Subsidiary of such Person, (ii) all investments as of
such date in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries and (iii) all unamortized debt discount and expense and
unamortized deferred charges as of such date, in each case 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 date of this Indenture 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.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
13
8
"Disqualified Equity Interests" means any Equity Interest
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the Holder), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of
the Holder thereof, in whole or in part, on or prior to the date that is 91
days following the maturity date of the Notes, for cash or securities
constituting Indebtedness; provided, however, that Preferred Equity Interests
of the Company or any Subsidiary thereof that are issued with the benefit of
provisions requiring a change of control offer or asset sale proceeds offer to
be made for such Preferred Equity Interest in the event of a change of control
or sale of assets of the Company or such Subsidiary, which provisions have
substantially the same effect as the provisions of this Indenture described
under Section 4.20 or Section 4.21 shall not be deemed to be Disqualified
Equity Interests solely by virtue of such provisions.
"Equity Interests" means, with respect to any Person, any and
all shares or other equivalents (however designated) of capital stock,
partnership interests or any other participation, right or other interests in
the nature of an equity interest in such Person or any option, warrant or other
security convertible into or exchangeable for any of the foregoing.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Note" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f).
"Exchange Offer" means the "Registered Exchange Offer" as
defined in the Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Excluded Person" means C. Xxxxx Xxxxxx and Xxxxxx X. Xxxxxx
and any Related Party of either of them.
"Existing Credit Facility" means that certain Credit
Agreement, dated as of October 31, 1996, as amended prior to the Issue Date,
among the Company, Texas Commerce Bank National Association, and the other
parties thereto.
"fair market value" or "fair value" means, with respect to any
assets or property, the price which could be negotiated in an arm's-length free
market
14
9
transaction, for cash, between a willing seller and a fully informed, willing
and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction, all as reasonably determined by a majority of the
Board of Directors acting in good faith, such determination to be evidenced by
a board resolution delivered to the Trustee. No such determination need be
supported by an appraisal or expert opinion.
"GAAP" means generally accepted accounting principles applied
as in effect in the United States on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company with respect to the Notes by each Guarantor pursuant to the terms of
Article 10 hereof.
"Guarantor" means the parties named as such in the first
paragraph of this Indenture and any other Person, in each case so long as such
Person guarantees the Obligations of the Company with respect to the Notes
pursuant to the terms of Article 10 hereof.
"Hedging Obligations" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates, currency exchange rates or commodity prices.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"IAI Global Note" means the global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes transferred to institutional accredited investors
subsequent to the initial issuance of the Notes.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become, directly or indirectly,
liable in respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such person (and "incurrence," "incurred,
"incurable," and "incurring" shall have meanings correlative to the foregoing),
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time becoming Indebtedness shall not be deemed an
incurrence of such Indebtedness and provided, further, that accrual of
15
10
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness. Any Indebtedness or Equity Interests of a Person existing at the
time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be incurred by such Person at the
time it becomes a Subsidiary. Indebtedness consisting of reimbursement
obligations in respect of a letter of credit will be deemed to be incurred when
the letter of credit is issued or renewed.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other liabilities arising in
the ordinary course of business) and shall also include, to the extent not
otherwise included (i) any Capital Lease Obligations, (ii) obligations of
Persons other than such Person secured by a Lien to which the property or
assets owned or held by such Person is subject, whether or not the obligation
or obligations secured thereby shall have been incurred or assumed by such
Person, (iii) all Indebtedness of others of the types described in the other
clauses of this definition (including all dividends of other Persons) the
payment of which is guaranteed, directly or indirectly, by such Person or that
is otherwise its legal liability or which such Person has agreed to purchase or
repurchase or in respect of which such Person has agreed contingently to supply
or advance funds (whether or not such items would appear upon the balance sheet
of the guarantor), (iv) all obligations for the reimbursement of any obligation
or on any letter of credit, banker's acceptance or similar credit transaction,
(v) Disqualified Equity Interests, (vi) Hedging Obligations of any such Person
and (vii) Attributable Indebtedness. The amount of Indebtedness of any Person
at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided, however, that (i) the amount outstanding at any time of
any Indebtedness issued with original issue discount, including the Notes, if
applicable, is the principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP, and (ii) Indebtedness shall not
include any liability for federal, state, local or other taxes. Notwithstanding
any other provision of the foregoing definition, any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be "Indebtedness" for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
16
11
"Independent Financial Advisor" means an accounting,
appraisal, investment banking or consulting firm of nationally recognized
standing that is, in the good faith judgment of the Board of Directors of the
Company, qualified to perform the task for which such firm has been engaged.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest" when used with respect to any Note, means the
amount of all interest accruing on such Note, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.01 (8) and
(9) or which would have accrued but for any such event.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Investments" means, directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business (including accounts receivable arising in the ordinary
course of business and acquired as a part of the assets acquired by the Company
or a Subsidiary in connection with an acquisition of assets which is otherwise
permitted by the terms of this Indenture)), loan or capital contribution to (by
means of transfers of property to others, payments for property or services for
the account or use of others or otherwise), the purchase of any stock, bonds,
notes, debentures, partnership or joint venture interests or other securities
of, the acquisition, by purchase or otherwise, of all or substantially all of
the business or stock or other evidence of beneficial ownership of, any Person,
the guarantee or assumption of the Indebtedness of any other Person (except for
an assumption of Indebtedness for which the assuming Person receives
consideration with a fair market value at least equal to the principal amount
of the Indebtedness assumed), the designation of a Subsidiary as an
Unrestricted Subsidiary or the making of any investment in any Person and all
other items that would be classified as investments on a balance sheet of such
Person prepared in accordance with GAAP. Investments shall exclude (i)
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices, (ii) endorsements of negotiable instruments for
collection or deposit in the ordinary course of business, (iii) commission,
travel, payroll and similar advances to directors, officers and employees made
in the ordinary course of business and (iv) workers' compensation, utility,
lease and similar deposits and prepaid expenses in the ordinary course of
business.
"Issue Date" means the closing date for the sale and original
issuance of the Notes to the Initial Purchasers.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection
17
12
with the Exchange Offer.
"Lien" means with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including without limitation, any Capital Lease Obligation, conditional sales,
or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 6 of the Registration Rights Agreement.
"Maturity Date" means December 1, 2004.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP and
before any reduction in respect of dividends on Preferred Equity Interests,
excluding, however, (i) any gain (but not loss, except the loss to be incurred
in the fourth quarter of 1997 relating to the extinguishment of the Existing
Credit Facility), together with any related provision for taxes on such gain
(but not loss, except as specifically permitted above), realized in connection
with (a) any Asset Sale 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 (or loss incurred prior to the Issue Date, but not loss incurred after the
Issue Date), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss, except to the extent referred
to above).
"Net Investments" means the excess of (i) the aggregate of all
Investments made by the Company or a Subsidiary thereof on or after the Issue
Date (in the case of an Investment made other than in cash, the amount shall be
the fair market value of such Investment at the time made as determined in good
faith by the Board of Directors of the Company) over (ii) the sum of (a) the
aggregate amount returned in cash on such Investments (in the case of a noncash
return on such Investments, the amount thereof shall be the fair market value
of such noncash consideration at the time of receipt thereof as determined in
good faith by the Board of Directors of the Company) whether through interest
payments, principal payments, dividends or other distributions and (b) the net
cash proceeds received by the Company or such Subsidiary from the disposition
of all or any portion of such Investments (other than to a Subsidiary of the
Company), provided, however, that with respect to all Investments made in
Unrestricted Subsidiaries the sum of clauses (a) and (b) above with respect to
such Investments shall not exceed the aggregate amount of all Investments made
in all Unrestricted Subsidiaries.
"New Credit Facility" means that certain Second Amended and
Restated
18
13
Credit Agreement, dated as of December 1, 1997, among the Company, the Banks
party thereto and Texas Commerce Bank National Association, as agent, including
any related notes, guarantees (by subsidiaries of the Company or otherwise),
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, modified, renewed, refunded,
replaced or refinanced (in each case, in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions),
with the same or other agents and lenders, in whole or in part, from time to
time and any agreement (and related documents) governing Indebtedness incurred
to refinance or refund borrowings and commitments then outstanding or permitted
to be outstanding under such credit facility or a successor New Credit
Facility, whether by the same or other agent lender or group of lenders.
"Non-Recourse Debt" means Indebtedness: (i) as to which
neither the Company nor any of its Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise) or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the Holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness of the
Company or any of its Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer or the Treasurer of such Person, the Controller, the Secretary or any
other officer designated by the Board of Directors of such Person, as the case
may be (or, in the case of a Person that is a partnership (or other
non-corporate Person), of a general partner (or analogous individuals) of such
Person in such capacity).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer or assistant
Treasurer of such Person (or, in the case of a Person that is a partnership (or
other non-corporate Person), of a general
19
14
partner (or analogous individuals) of such Person in such capacity) that shall
comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel which counsel is reasonably acceptable to the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel,
a Person who has an account with DTC, Euroclear or Cedel, respectively (and,
with respect to DTC, shall include Euroclear and Cedel).
"Permitted Indebtedness" means:
(i) Indebtedness (plus interest, premium, fees and other
obligations associated therewith) of the Company or any Subsidiary
thereof arising under or in connection with the New Credit Facility of
up to $20.0 million;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Hedging Obligations;
(iv) Additional Indebtedness of the Company or any
Guarantor (which may be Indebtedness under the New Credit Facility) in
an aggregate principal amount outstanding at any time not to exceed
$3.0 million;
(v) Indebtedness of a Wholly-Owned Subsidiary issued to
and held by the Company or a Wholly-Owned Subsidiary or Indebtedness
of the Company to a Wholly-Owned Subsidiary in respect of intercompany
advances or transactions;
(vi) Indebtedness outstanding on the Issue Date after
giving effect to the application of the proceeds of this Offering
(including repayment of all obligations under the Existing Credit
Agreement);
(vii) Refinancing Indebtedness;
(viii) Indebtedness constituting an agreement or commitment
to pay a dividend that has been declared or otherwise to make a
payment or distribution as described in Section 4.07(b)(i);
(ix) Capital Lease Obligations and Purchase Money
Indebtedness in a combined aggregate principal amount not to exceed
$3.0 million at any time outstanding; and
(x) Indebtedness in connection with one or more letters
of credit, guarantees, bid, surety or performance bonds or other
reimbursement
20
15
obligations or banker's acceptances, in each case issued in the
ordinary course of business and not in connection with the borrowing
of money or the obtaining of advances or credit.
"Permitted Investments" means, for any Person, Investments
made on or after the Issue Date consisting of:
(i) Temporary Cash Investments;
(ii) (A) Investments in the Company or a Wholly-Owned
Subsidiary of the Company, (B) Investments in any Person, if (1) as a
result of such Investment (y) such Person or a Subsidiary of such
Person becomes a Wholly-Owned Subsidiary of the Company or (z) such
Person or a Subsidiary of such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Wholly-Owned
Subsidiary thereof and (2) after giving effect to such Investment the
Company is in compliance with Section 4.16 and (C) Net Investments in
any Persons, provided, however, that the aggregate amount of all such
Net Investments made pursuant to this clause (C) shall not exceed $2.0
million at any one time outstanding;
(iii) Investments represented by accounts receivable
created or acquired in the ordinary course of business;
(iv) Advances to employees, officers and directors in the
ordinary course of business not to exceed an aggregate of $500,000
outstanding at any one time;
(v) Investments under or pursuant to Hedging Obligations;
(vi) An Investment that is made by the Company or a
Subsidiary thereof in the form of any Equity Interests, Indebtedness
or other assets received as partial consideration for the consummation
of a transaction that is otherwise permitted under the covenant
described under Section 4.21;
(vii) Investments in the Notes otherwise permitted under
this Indenture;
(viii) Investments existing on the Issue Date;
(ix) any Investment acquired solely in exchange for, by
conversion of, or out of the net cash proceeds of, the issuance of
Equity Interests (other than Disqualified Equity Interests) of the
Company;
(x) stocks, obligations or other securities received in
settlement of debts (including, without limitation, under any
bankruptcy or other similar
21
16
proceeding) owing to the Company or any of its Subsidiaries as a
result of foreclosure, perfection, enforcement or settlement of any
Indebtedness or Liens in favor of the Company or a Subsidiary; and
(xi) guarantees not prohibited by Section 4.06.
"Permitted Liens" means, without duplication, (i) Liens
existing on the Issue Date, (ii) Liens in favor of the Company or any
Subsidiary thereof, (iii) Liens on the Equity Interests or property of a Person
existing at the time such Person becomes a Subsidiary of, or is acquired by,
merged into or consolidated with the Company or any Subsidiary thereof, or such
property is acquired by the Company or a Subsidiary, provided, however, that
such Liens (a) were not created in connection with or in anticipation of such
acquisition, merger or consolidation or such Person becoming a Subsidiary and
(b) are not applicable to any other property of the Company or any of the other
Subsidiaries of the Company, (iv) 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
conducted, provided, however, that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor, (v)
landlords', carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business (whether
contractual, statutory or constitutional in nature) and with respect to amounts
which are not yet delinquent or are being contested in good faith by
appropriate proceedings, (vi) pledges or deposits made in the ordinary course
of business in connection with (a) leases, performance bonds and similar
obligations, (b) workers' compensation, unemployment insurance and other social
security legislation, or (c) securing the performance of surety bonds and
appeal bonds required (1) in the ordinary course of business or in connection
with the enforcement of rights or claims of the Company or a Subsidiary thereof
or (2) in connection with judgments that do not give rise to an Event of
Default, (vii) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar encumbrances which, in the aggregate,
do not materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company
or any Subsidiary in connection therewith, (viii) Liens to secure Purchase
Money Indebtedness that is otherwise permitted under this Indenture, provided,
however, that (a) any such Lien is created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including commissions, sales and excise taxes, installation and delivery
charges and other direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction and such financing) of such
Property, (b) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such costs, and (c) such Lien does not extend to or
cover any Property other than such item of Property and any improvements on
such item, (ix) Liens securing the New Credit Facility (x) Liens securing
Capital Lease Obligations permitted to be incurred under this Indenture,
provided, however, that such Lien does not extend to any property other than
that subject to the underlying lease, (xi) Liens pursuant to leases and
subleases of real
22
17
property which do not interfere with the ordinary conduct of the business of
the Company or any of its Subsidiaries and which are made on customary and
usual terms applicable to similar properties and do not extend to any property
of the Company or a Subsidiary other than the personal property located on such
real property, (xii) Liens securing reimbursement obligations under commercial
letters of credit, but only in or upon the goods the purchase of which were
financed by such letters of credit, (xiii) Liens arising under this Indenture
in favor of the Trustee for its own benefit or for the benefit of the Holders,
(xiv) Liens resulting from the deposit of funds or government securities in
trust for the purpose of decreasing or defeasing Indebtedness of the Company
and its Subsidiaries so long as such deposit of funds or government securities
and such decreasing or defeasing of Indebtedness are permitted under Section
4.07, (xv) Liens constituting licenses not otherwise prohibited under the terms
of this Indenture, (xvi) setoff, chargeback and other rights of depository and
collecting banks and other regulated financial institutions with respect to
money or instruments of the Company or its Subsidiaries on deposit with or in
the possession of such institutions, (xvii) any interest or title of a lessor
in the property subject to any Capital Lease Obligation permitted under this
Indenture or operating lease, (xviii) Liens on Equity Interests of Unrestricted
Subsidiaries, (xix) judgment or attachment Liens not giving rise to an Event of
Default, (xx) Liens in connection with Sale and Leaseback Transactions
otherwise permitted under this Indenture, and (xxi) Liens securing Refinancing
Indebtedness, provided, however, that such Liens extend only to the assets
(plus improvements thereon and additions thereto) securing the Indebtedness
being extended, refinancing, renewed or replaced, and such Indebtedness was
previously secured by such assets and provided, further, the terms of such
Liens taken as a whole are no less favorable to the Holders of the Notes than
the Liens being extended, refinanced, renewed or replaced.
"Person" means any individual, corporation, partnership,
limited liability company or partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government
(including any agency or political subdivision thereof).
"Preferred Equity Interest" means any Equity Interest of a
Person, however designated, which entitles the Holder thereof to a preference
with respect to dividends, distributions or liquidation proceeds of such Person
over the Holders of any other Equity Interest issued by such Person.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i).
"Property" or "property" of any Person means all types of
real, personal, tangible, intangible or mixed property owned by such Person
whether or not included in the most recent consolidated balance sheet of such
Person and its Subsidiaries under GAAP.
23
18
"Public Equity Offering" means, with respect to any Person, a
public offering by such Person of some or all of its Common Equity Interests
other than Disqualified Equity Interests (however designated and whether voting
or non-voting) and any and all rights, warrants or options to acquire such
Equity Interests.
"Purchase Money Indebtedness" means any Indebtedness incurred
in the ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii) fees and
expenses of such Person incurred in connection therewith. The acquisition of a
business or substantially all the assets of a business shall not be considered
to be in the ordinary course.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, renews or replaces ("refinances") any Indebtedness of the Company
or its Subsidiaries outstanding on the Issue Date or other Indebtedness
permitted to be incurred by the Company or its Subsidiaries pursuant to the
terms of this Indenture, whether involving the same or any other lender or
creditor or group of lenders or creditors, but only to the extent that (i) the
Refinancing Indebtedness is subordinated to the Notes or the Guarantees, as
applicable, to at least the same extent as the Indebtedness being refinanced,
if at all, (ii) the Refinancing Indebtedness is scheduled to mature either (a)
no earlier than the Indebtedness being refinanced, or (b) after the maturity
date of the Notes, (iii) except where such Refinancing Indebtedness is
Attributable Indebtedness, has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being refinanced, (iv)
except where such Refinancing Indebtedness is Attributable Indebtedness, such
Refinancing Indebtedness is in an aggregate principal amount that is less than
or equal to the aggregate principal or accreted amount (in the case of any
Indebtedness issued with original issue discount, as such) then outstanding
under the Indebtedness being refinanced plus the amount of all fees and
expenses (including premiums and penalties) associated with such refinancing)
and (v) such Refinancing Indebtedness is incurred by the same Person that
initially incurred the Indebtedness being refinanced, except that the Company
or a Guarantor may incur Refinancing Indebtedness to refinance Indebtedness of
the Company or any Wholly-Owned Subsidiary of the Company.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 1, 1997, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
24
19
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Related Party" with respect to an Excluded Person means (i)
any Wholly-Owned Subsidiary, or spouse or immediate family member of such
Excluded Person or (ii) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or persons beneficially
holding a controlling interest of which consist of such Excluded Person and/or
such other Persons referred to in the immediately preceding clause (i).
"Restricted Certificated Note" means a Certificated Note
bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Equity Interests of the Company or any Subsidiary thereof (including, without
limitation, any payment in connection with any merger or consolidation
including the Company) or any payment made to the direct or indirect Holders
(in their capacities as such) of Equity Interests of the Company or any
Subsidiary or Affiliate thereof (other than (a) dividends or distributions
payable solely in Equity Interests of the Company (other than Disqualified
Equity Interests) or in options, warrants or other rights to purchase Equity
Interests of the Company (other than Disqualified Equity Interests) or (b)
dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company), (ii) the purchase, redemption or other acquisition
or retirement for value of any Equity Interests of the Company or any
Subsidiary or Affiliate thereof (other than Equity Interests owned by the
Company or a Wholly-Owned Subsidiary, excluding Disqualified Equity Interests),
(iii) the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement for value, prior to
any scheduled maturity, scheduled repayment or scheduled sinking fund payment,
of any Subordinated Indebtedness (except, if no Default or Event of Default is
continuing or would result therefrom, any such payment, purchase, defeasance,
repurchase, redemption or other acquisition or retirement for value made (a)
out of Excess Proceeds available for general corporate purposes if (1) such
payment or other action is required by this Indenture or other agreement or
instrument pursuant to which such Subordinated Indebtedness was issued and (2)
the Company has purchased all Notes and other Senior Indebtedness properly
tendered pursuant to an Asset Sale Offer required under Section 4.21 or (b)
upon the occurrence of a Change of Control if (1) such payment or other action
is required by this Indenture or other agreement or
25
20
instrument pursuant to which such Subordinated Indebtedness was issued and (2)
the Company has purchased all Notes and other Senior Indebtedness properly
tendered pursuant to the Change of Control Offer resulting from such Change of
Control), or (iv) the making of any Investment other than a Permitted
Investment. For purposes of determining the amount expended for Restricted
Payments, cash distributed or invested shall be valued at the face amount
thereof and property other than cash shall be valued at its fair market value.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Subsidiary of the
Company of any real or tangible personal property, which (i) property has been
or is to be sold, conveyed or transferred by the Company or such Subsidiary to
such Person in contemplation of such leasing and (ii) constitutes an Asset Sale
permitted under Section 4.21.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means Indebtedness of any Person which
is not Subordinated Indebtedness.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" shall have the meaning set forth in
Rule 1-02 of Regulation S-X promulgated by the Commission.
"Subordinated Indebtedness" means Indebtedness of the Company
or any Guarantor which is expressly subordinated in right of payment to the
Notes or a Guarantee, as the case may be.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Equity Interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, officers or trustees thereof is held by such first-named
Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is consolidated with the
first-named Person for financial statement purposes. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be deemed a Subsidiary of the
Company other than for purposes of the definition of Unrestricted Subsidiary,
unless the Company shall have designated such Unrestricted Subsidiary as a
"Subsidiary" by written notice to the
26
21
Trustee. An Unrestricted Subsidiary may be designated as a Subsidiary at any
time by the Company by written notice to the Trustee, provided, however, that
(i) no Default or Event of Default shall have occurred and be continuing or
would arise therefrom and (ii) if such Unrestricted Subsidiary is an obligor of
any Indebtedness, any such designation shall be deemed to be an incurrence as
of the date of such designation by the Company of such Indebtedness and
immediately after giving effect to such designation, the Company could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.06.
"Temporary Cash Investments" means (i) United States dollars,
(ii) any evidence of Indebtedness issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
thereof (provided the full faith and credit of the United States government is
behind such obligation) having maturities of not more than 12 months from the
date of acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of 12 months or less from the date of acquisition, demand
deposits, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank that is
a member of the Federal Reserve System and having capital and surplus in excess
of $500.0 million, or whose short-term debt has the highest rating obtainable
from Xxxxx'x Investors Service, Inc. ("Moody's") or Standard & Poor's Ratings
Group ("S&P"), (iv) any money market deposit account issued or offered by a
domestic commercial bank that is a member of the Federal Reserve System and
having capital and surplus in excess of $500.0 million, or whose short-term
debt has the highest rating obtainable from Moody's or S&P, (v) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (vi) commercial paper having the highest rating obtainable from Moody's
or S&P, and in each case maturing within 270 days after the date of acquisition
and (vii) investments in money market funds having assets in excess of $500.0
million, substantially all of which consist of investments of the types
described in (i) through (vi) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the Issue Date (except as provided in
Section 8.03 hereof).
"Treasury Rate" means, at any time of computation, the yield
to maturity at such time (as compiled by and published in the most recent
Federal Reserve Statistical Release H.15(519), which has become publicly
available at least two business days prior to the date of the redemption notice
or, if such Statistical Release is no longer published, any publicly available
source of similar market data) of United States Treasury securities with a
constant maturity most nearly equal to the Make-Whole Average Life; provided,
however, that if the Make-Whole Average Life is not equal to the constant
maturity of the United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to
27
22
the nearest one-twelfth of a year) from the weekly average yields of United
States Treasury securities for which such yields are given, except that if the
Make-Whole Average Life is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Trust Officer" when used with respect to the Trustee, means
any officer or assistant officer of the Trustee assigned to the Corporate Trust
Administration department or similar department performing corporate trust work
of the Trustee or any successor to such department or, in the case of a
successor Trustee, any officer of such successor Trustee performing corporate
trust 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.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Certificated Note" means one or more
Certificated Notes that do not bear and are not required to bear the Private
Placement Legend, do not contain Paragraph 1(b) of the form of Note attached
hereto as Exhibit A, and the principal of which does not accrue Liquidated
Damages.
"Unrestricted Global Note" means a permanent global Note in
the form of Exhibit A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend, do not contain Paragraph 1(b) of form of Note attached hereto as
Exhibit A, and the principal of which does not accrue Liquidated Damages.
"Unrestricted Subsidiary" means, any Subsidiary of the Company
which shall have been designated as an Unrestricted Subsidiary in accordance
with this Indenture. An Unrestricted Subsidiary may be designated as a
Subsidiary at a later date in the manner provided in the definition of
"Subsidiary" above.
"U.S. Government Obligations" means (i) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
Holder of
28
23
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the Holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or a specific payment of principal
or interest on any such U.S. Government Obligation held by such custodian for
the account of the Holder of such depository receipt.
"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" means any Subsidiary, all of the
outstanding Equity Interests (except directors' qualifying shares or shares
required to be held by foreign nationals, in each case to the extent mandated
by applicable law) of which are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . 4.08
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Base Period . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . 4.20
"Change of Control Payment Date" . . . . . . . . . . . . . . . . 4.20
"Change of Control Purchase Price" . . . . . . . . . . . . . . . 4.20
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . 9.03
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 4.21
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . . 4.21
"Exchange Securities" . . . . . . . . . . . . . . . . . . . . . 2.02
"Global Notes" . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . 9.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . 11.08
"Noteholder" ("Holder"). . . . . . . . . . . . . . . . . . . . . 1.01
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Physical Notes" . . . . . . . . . . . . . . . . . . . . . . . . 2.12
"Private Exchange" . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Private Exchange Securities" . . . . . . . . . . . . . . . . . 2.02
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Reinvestment Dates" . . . . . . . . . . . . . . . . . . . . . . 4.21
"Required Filing Date" . . . . . . . . . . . . . . . . . . . . . 4.02
29
24
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on this Indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
30
25
(4) words in the singular include the plural, and in the
plural include the singular;
(5) words used herein implying any gender shall apply to
every gender; and
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or Subdivision, unless expressly stated otherwise.
ARTICLE 2.
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend and the
"Schedule of Exchanges in the Global Note" attached thereto). Notes issued in
certificated form shall be substantially in the form of Exhibit A attached
hereto (but without the Global Note Legend and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System"
31
26
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms
and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Restricted
Global Notes and the Unrestricted Global Notes, in the form of Exhibit A hereto
("Global Notes") that are held by the Members of, or participants in, the
Depository ("Agent Members") through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the
Company. Such signatures may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note or at anytime
thereafter, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate
Notes for original issue in the aggregate principal amount of $80,000,000 upon
a Company Request. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof.
Upon receipt of the Company Request and an Officers' Certificate certifying
that the registration statement relating to the exchange offer specified in the
Registration Rights Agreement is effective or that the conditions precedent to
a Private Exchange (as defined in the Registration Rights Agreement) thereunder
have been met, the Trustee shall authenticate Notes in an aggregate principal
amount not to exceed $80,000,000 for issuance in exchange for all Notes
previously issued and tendered for exchange pursuant to an exchange offer
registered under the Securities Act or pursuant to a Private Exchange.
Exchange Securities (as defined in the Registration Rights Agreement) or
Private Exchange Securities (as defined in the Registration Rights Agreement)
may have such distinctive series designations and such changes in the form
thereof as are specified in the Company Request referred to in the preceding
sentence. The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same right as the Trustee in dealing with the Company or an Affiliate.
Notwithstanding the foregoing, only the
32
27
Trustee may authenticate any replacement Note authenticated pursuant to Section
2.07.
Section 2.03. Registrar and Paying Agent.
The Company shall appoint a registrar, which shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange ("Registrar"), and a paying agent, which shall maintain an office
or agency where Notes may be presented for payment ("Paying Agent") and shall
maintain an office or agency where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served, each located in the
City and State of New York. The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. Neither the Company
nor any Affiliate may act as Paying Agent. The Company may change any Paying
Agent, Registrar or co-registrar without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. 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
agent for service of notices and demands, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation pursuant to Section 7.07. The Company initially appoints the
Trustee as Registrar, Paying Agent and agent for service of notices and demands
in connection with the Notes.
The Company initially appoints the Depositary Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
On or before each due date of the principal of and interest on
any Notes, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest so becoming due. Each Paying Agent shall hold
in trust for the benefit of the Noteholders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Notes
(whether such money has been paid to it by the Company or any other obligor on
the Notes), and the Company and the Paying Agent shall notify the Trustee of
any default by the Company (or any other obligor on the Notes) in making any
such payment. Money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and the
Trustee, may at any time during the continuance of any Event of Default
specified in Section 6.01(1) or (2), upon written request to a Paying Agent,
require such Paying Agent to forthwith pay to the Trustee all sums so held in
trust by such Paying Agent
33
28
together with a complete accounting of such sums. Upon doing so, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
Section 2.05. Noteholder 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 Noteholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee in writing on or before the fifth Business Day
before each Interest Payment Date, as of the relevant record 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 Noteholders, including the aggregate principal amount of Notes held by each
such Noteholder.
Section 2.06. Transfer and Exchange.
Holders of the Notes may transfer or exchange Notes in
accordance with this Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and to pay
any taxes and fees required by law or permitted by this Indenture. The
Registrar is not required to transfer or exchange any Note selected for
redemption. Also, the Registrar is not required to transfer or exchange any
Note for a period of 15 days before selection of the Notes to be redeemed.
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Certificated Notes if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Certificated Notes and delivers a written notice to such effect to the
Trustee. Upon the occurrence of either of the preceding events in (i) or (ii)
above, Certificated Notes shall be issued in such names as the Depositary or
the Company shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in
this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
34
29
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs as
applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of any
restricted period under applicable law, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred only to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all
transfers and exchanges of beneficial interests (other than a transfer
of a beneficial interest in a Global Note to a person who takes
delivery thereof in the form of a beneficial interest in the same
Global Note), the transferor of such beneficial interest must delivery
to the Registrar either (A)(1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Certificated Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Certificated Note
shall be registered to effect the transfer or exchange referred to in
(1) above. Upon an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar
of the instructions contained in the Letter of Transmittal delivered
by the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer or
35
30
exchange of beneficial interests in Global Notes contained in this
Indenture, the Notes and otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof
in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of clause (ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery
in the form of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery
in the form of a beneficial interest in the Regulation S
Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transferee will take delivery
in the form of a beneficial interest in the IAI Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications and
certificates and an Opinion of Counsel required by item (3)
thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests
in a Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any Holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with the
requirements of clause (ii) above and:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
36
31
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(a) thereof;
(2) if the Holder of such
beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof; and
(3) in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Certificated Notes.
(i) If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Certificated Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Certificated Note,
then, upon receipt by the Registrar of
37
32
the following documentation:
(A) if the Holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Certificated Note, a certificate
from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (1)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(C) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this section 2.06(c)(i) shall
be registered in such name or names and in such authorized
38
33
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Certificated Notes to the Person in whose names such Notes are so registered.
Any Certificated Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding 2.06(c)(i) hereof, a Holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Certificated Note or may
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Certificated Note only if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Certificated Note that
does not bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof;
(2) if the Holder of such
beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a Certificated Note that does
not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
39
34
(3) in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.
(iii) If any Holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest
for a Certificated Note or to transfer such beneficial interest to a
person who takes delivery thereof in the form of a Certificated Note,
then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Certificated Note in the appropriate principal
amount. Any Certificated Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in
such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Certificated Notes to the Persons in whose names such Notes are so
registered. Any Certificated Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the
Private Placement Legend. A beneficial interest in an Unrestricted
Global Note cannot be exchanged for a Certificated Note bearing the
Private Placement Legend or transferred to a Person who takes delivery
thereof in the form of a Certificated Note bearing the Private
Placement Legend.
(d) Transfer and Exchange of Certificated Notes for
Beneficial Interests.
(i) If any Holder of a Restricted Certificated
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Certificated Notes to a
Person who takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the Registrar of
the following documentation:
(A) if the Holder of such Restricted
Certificated Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Certificated Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate
40
35
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Certificated Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (2) thereof;
(D) if such Certificated Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item 3(a) thereof;
(E) if such Certificated Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Certificated Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Certificated Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Certificated Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global
Note, and in all other cases, the IAI Global Note.
(ii) A Holder of a Restricted Certificated Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Certificated Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer, is
not (1) a broker-dealer, (2) a Person
41
36
participating in the distribution of the Exchange Notes or (3)
a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
Certificated Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof;
(2) if the Holder of such
Certificated Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act,
that the restrictions on transfer contained herein and in the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act, and such Certificated
Notes are being exchanged or transferred in compliance with
any applicable blue sky securities laws of any State of the
United States.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Certificated
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) A Holder of an Unrestricted Certificated Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Certificated Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Certificated Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global
Notes.
42
37
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Certificated Notes for
Certificated Notes. Upon request by a Holder of Certificated Notes and such
Holder's compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Certificated Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Certificated Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, pursuant to the provisions of this
Section 2.06(e).
(i) Restricted Certificated Notes may be
transferred to and registered in the name of Persons who take delivery
thereof if the Registrar receives the following:
(A) if the transfer will be made
pursuant to Rule 144A under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made
pursuant to Rule 903 or Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transfer will be made
pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Any Restricted Certificated Note may be
exchanged by the Holder thereof for an Unrestricted Certificated Note
or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights
43
38
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
Restricted Certificated Notes proposes to exchange such Notes
for an Unrestricted Certificated Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof;
(2) if the Holder of such
Restricted Certificated Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an
Unrestricted Certificated Note, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications
in item (4) thereof; and
(3) in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act,
that the restrictions on transfer contained herein and in the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act, and such Restricted
Certificated Note is being exchanged or transferred in
compliance with any applicable blue sky securities laws of any
State of the United States.
(iii) A Holder of Unrestricted Certificated Notes
may transfer such Notes to a Person who takes delivery thereof in the
form of an Unrestricted Certificated Note. Upon receipt of a request
for such a transfer, the Registrar shall register the Unrestricted
Certificated Notes pursuant to the instructions from the Holder
thereof. Unrestricted Certificated Notes cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Certificated Note.
(f) Exchange Offer. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon
44
39
receipt of an authentication order in accordance with the Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by persons
that are not (x) broker-dealers, (y) Persons participating in the distribution
of the Exchange Notes or (z) Persons who are affiliates (as defined in Rule
144) of the Company and accepted for exchange in the Exchange Offer and (ii)
Certificated Notes in an aggregate principal amount equal to the principal
amount of the Restricted Certificated Notes accepted for exchange in the
Exchange Offer. Concurrent with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global Notes
to be reduced accordingly, and the Company and the Guarantors shall execute and
the Trustee shall authenticate and deliver to the Persons designated by the
Holders of Certificated Notes so accepted Certificated Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Certificated Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph
(B) below each Global Note and each Certificated Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON THAT IS
OUTSIDE THE UNITED STATES; (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) TO A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM
45
40
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A
"U.S. PERSON" AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF SUCH HOLDER'S PROPERTY OR
THE PROPERTY OF SUCH ACCOUNT AT ALL TIMES BE WITHIN ITS CONTROL AND TO
COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THE TRANSFER
RESTRICTIONS SET FORTH IN THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF ANY CERTIFICATED SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE OF SUCH CERTIFICATED SECURITY RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH CERTIFICATED SECURITY TO
THE TRUSTEE. IF ANY PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR APPLICABLE SECURITIES LAWS OF ANY JURISDICTION. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(B) Notwithstanding the foregoing, any
Global Note or Certificated Note issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall
bear a legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS THEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER
46
41
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Certificated Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.10 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Certificated Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or by the Depositary at the direction of
the Trustee, to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note, by the Trustee or by the Depositary at the direction of the Trustee, to
reflect such increase. If appropriate, in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of beneficial interests so
transferred.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Certificated Notes upon the Company's
order or at the Registrar's request.
(ii) No service charge shall be made to a Holder
of a beneficial interest in a Global Note or to a Holder of a
Certificated Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith.
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being
redeemed in part.
47
42
(iv) All Global Notes and Certificated Notes
issued upon any registration of transfer or exchange of Global Notes
or Certificated Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Certificated Notes surrendered upon
such registration of transfer or exchange.
(v) The Company shall not be required (A) to
issue, to register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes
and Certificated Notes in accordance with the provisions of Section
2.02 hereof.
(viii) All certifications, certificates and Opinions
of Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a transfer or exchange may be submitted by
facsimile.
(j) Neither the Company nor the Trustee will be liable
for any delay by the Global Note Holder or the Depositary in identifying the
beneficial owners of Notes and the Company and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the Global Note
Holder or the Depositary for all purposes.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or Trustee
or if the Holder of a Note presents evidence to the satisfaction of the Company
and the Trustee that the Note has been lost, destroyed or wrongfully taken and
of the ownership thereof, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Holder of such Note furnishes to the
Company and the Trustee evidence reasonably acceptable to them of the ownership
and destruction, loss or theft of such Note. An indemnity bond may be required
by the Company or the Trustee that is sufficient in the judgment of the Company
and the Trustee to protect the Company, the
48
43
Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee each may charge for its expenses
(including reasonable attorneys' fees and expenses) in replacing a Note. Every
replacement Note is an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding until the Company and the Trustee receive proof satisfactory to
each of them that the replaced Note is held by a bona fide purchaser in whose
hands such obligation is a legal, valid and binding obligation of the Company.
If a Paying Agent holds on a Redemption Date or the Maturity
Date money sufficient to pay the principal of, premium, if any, and all accrued
interest with respect to Notes payable on that date and is not prohibited from
paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
Subject to Section 11.06, a Note does not cease to be
outstanding solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, benefits and
privileges, of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes presented to it.
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel and retain or, upon written request of the Company, may destroy
(subject to the record-retention requirements of the Exchange Act) or return to
the Company in accordance with its normal practice, all Notes surrendered for
transfer, exchange, payment or cancellation and if such Notes are destroyed,
deliver a certificate of destruction to the Company unless the Company
instructs the Trustee in writing to deliver the Notes to the Company. Subject
to Section 2.07 hereof, the Company may
49
44
not issue new Notes to replace Notes in respect of which it has previously paid
all principal, premium and interest accrued thereon, or delivered to the
Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted amounts, plus (to the extent permitted by law) any
interest payable on defaulted amounts pursuant to Section 4.01 hereof, to the
Persons who are Noteholders on a subsequent special record date. The Company
shall fix the special record date and payment date in a manner satisfactory to
the Trustee and provide the Trustee at least twenty days notice of the proposed
amount of default interest to be paid and the special payment date. At least
15 days before the special record date, the Company shall mail or cause to be
mailed to each Noteholder at his address as it appears on the Notes register
maintained by the Registrar a notice that states the special record date, the
payment date (which shall be not less than five nor more than ten days after
the special record date), and the amount to be paid. In lieu of the foregoing
procedures, the Company may pay defaulted interest in any other lawful manner
satisfactory to the Trustee.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and the Maturity Date, the Company shall have deposited with the
Paying Agent in New York, New York, or such other location as shall be
designated by the Paying Agent, in immediately available funds money sufficient
to make cash payments, if any (including, without limitation, Liquidated
Damages, if any), due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
Payments in respect of the Global Notes (including principal, premium, interest
and Liquidated Damages, if any) shall be made by wire transfer of immediately
available funds to the accounts specified by the Holder of such Global Note.
With respect to Certificated Notes, the Company will make all payments of
principal, premium, interest and Liquidated Damages, if any, by wire transfer
of immediately available funds to the accounts specified by the Holders thereof
or, if no such account is specified, by mailing a check to each such Holder's
registered address.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number (or
numbers), and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly
50
45
notify in writing the Trustee of any such CUSIP number used by the Company in
connection with the Notes and any change in such CUSIP number.
Section 2.14. Wire Payments to Holders.
Notwithstanding any provisions of this Indenture and the Notes
to the contrary, at the request of a Holder, all payments with respect to any
of the Notes, may be made by the Paying Agent upon receipt from the Company of
immediately available funds prior to 11:30 a.m., New York City time, directly
to the Holder of such Note by wire transfer of immediately available funds to
the accounts specified by the Holder; provided, however, that no such payment
in immediately available funds shall be made to any Holder of Certificated
Notes under this Section 2.14 unless such Holder has delivered written
instructions to the Trustee prior to the relevant record date for such payment
requesting that such payment will be so made and designating the bank account
to which such payments shall be so made and in the case of payments of
principal, surrenders the Note to the Trustee in exchange for a Note or Notes
aggregating the same principal amount as the unredeemed principal amount of the
Notes surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 2.14 unless a new
instruction is delivered prior to the relevant record date for a payment date.
The Company will indemnify and hold the Trustee harmless against any loss,
liability or expense (including attorneys' fees and expenses) resulting from
any act or omission to act on the part of the Company or any such Holder in
connection with this Section 2.14 or which the Paying Agent may incur as a
result of making any payment in accordance with this Section 2.14, other than
acts or omissions constituting negligence, gross negligence or willful
misconduct.
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07
hereof, (i) at least 60 days prior to the Redemption Date in the case of a
partial redemption, (ii) at least 45 days prior to the Redemption Date in the
case of a total redemption or (iii) during such other period as the Trustee may
agree to in writing, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in Section 3.07
hereof, as appropriate.
Section 3.02. Selection by Trustee of Notes to Be Redeemed.
In the event of redemption of fewer than all of the Notes, the
Trustee shall select pro rata, by lot or in such other manner as it shall deem
fair and equitable,
51
46
the Notes to be redeemed. No Notes of $1,000 or less shall be redeemed in part.
Subject to the limitations described herein, the Notes will be redeemable in
whole or in part upon not less than 30 nor more than 60 days' prior written
notice, mailed by first class mail to a Holder's last address as it shall
appear on the register maintained by the Registrar of the Notes. Notices of
redemption may not be conditional. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state the portion of
the principal amount thereof to be redeemed. A new Note, in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Note. After any redemption
date, unless the Company shall default in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption.
Section 3.03. Notice of Redemption.
At least 30 days, but no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued
interest, if any, to be paid;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and that the only remaining right of the Holders
of such Notes is to receive payment of the Notes redemption price upon
surrender to the Paying Agent of the Notes redeemed;
(7) the paragraph of Section 3.07 hereof pursuant to
which the Notes
52
47
called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are
being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest (and
Liquidated Damages, if any) accrued to the Redemption Date. Upon surrender to
the Paying Agent, such Notes shall be paid at the redemption price, including
any premium, plus interest (and Liquidated Damages, if any) accrued to the
Redemption Date, provided that if the Redemption Date is after a regular
interest payment record date and on or prior to the Interest Payment Date, the
accrued interest (and Liquidated Damages, if any) shall be payable to the
Holder of the redeemed Notes registered on the relevant record date, and
provided, further, that if a Redemption Date is a Legal Holiday, payment shall
be made on the next succeeding Business Day and no interest (and Liquidated
Damages, if any) shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued
interest (and Liquidated Damages, if any) on all Notes to be redeemed on that
date other than Notes or portions thereof called for redemption on that date
which have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of and accrued interest (and Liquidated Damages, if any)
on Notes called for redemption shall have been made available in accordance
with the preceding paragraph, the Notes called for redemption will cease to
accrue interest (and Liquidated Damages, if any) and the only right of the
Holders of such Notes will be to receive payment of the redemption price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
(and Liquidated Damages, if any) on such Notes to the Redemption Date. If any
Note called for redemption shall not be so paid, interest (and Liquidated
Damages, if any) will be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal of the Note, premium, if any (and
Liquidated Damages, if any), and interest, if any, not paid on such unpaid
principal, in each case, at the rate and in the manner provided in the Notes.
53
48
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth below, the Notes will not be
redeemable at the option of the Company prior to December 1, 2001. Thereafter,
the Notes will be redeemable at any time, and from time to time, at the option
of the Company, in whole or in part, at the following redemption prices
(expressed as a percentage of principal amount), together, in each case, with
accrued and unpaid interest and Liquidated Damages, if any, to the redemption
date, if redeemed during the twelve-month period beginning on December 1, of
each year listed below:
YEAR PERCENTAGE
---- ----------
2001 . . . . . . . . . . . 106.50%
2002 . . . . . . . . . . . 103.25%
2003 . . . . . . . . . . . 100.00%
(b) Notwithstanding the foregoing, at any time prior to
December 1, 2000, the Company may redeem up to an aggregate of $25 million in
principal amount of Notes at a redemption price equal to 111% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date with the net cash proceeds of one or more
Public Equity Offerings, provided that at least $55 million in principal amount
of Notes remains outstanding immediately following each such redemption and
that any such redemption occurs within 90 days following the closing of any
such Public Equity Offering.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.20 and 4.21 hereof, the
Company is not obligated to make any mandatory redemption of or sinking fund
payments with respect to the Notes.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of, premium, if any, and
interest (plus all Liquidated Damages as provided in the Registration Rights
Agreement,) on the Notes on the dates and in the manner provided in the Notes
and this Indenture. An
54
49
installment of principal, interest or Liquidated Damages shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
money designated for and sufficient to pay such installment. All payments
hereunder shall be due and payable in New York, New York or as otherwise
directed by a Holder.
Section 4.02. Reports.
(a) The Company will file with the SEC all information,
documents and reports to be filed with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act, whether or not the Company is subject to such filing
requirements, on or prior to the respective dates (the "Required Filing Dates")
by which the Company would have been or is required to so file such documents.
The Company (at its own expense) shall also in any event within 5 days after
each Required Filing Date (i) transmit by mail to all Holders, at their
addresses appearing in the register of Notes maintained by the Registrar and
(ii) file with the Trustee within 5 days after the Required Filing Date, copies
(without exhibits) of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company files with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act and (iii) make such
information available to securities analysts and prospective investors upon
request. Upon qualification of this Indenture under the TIA, the Company shall
also comply with the provisions of TIA Section 314(a). 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).
(b) The Company will, upon request, provide to any Holder
of Notes or any prospective transferee of any such Holder or to securities
analysts any information concerning the Company (including financial
statements) necessary in order to permit such Holder to sell or transfer Notes
in compliance with Rule 144A under the Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company or such Guarantor, as the case may be,
from paying all or any portion of the principal of, premium, if any, and
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
and each Guarantor hereby expressly waives all benefit or
55
50
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, on or
before 90 days after the end of the Company's fiscal year and on or before 45
days after the end of the first, second and third fiscal quarters of each
fiscal year, an Officers' Certificate (one of the signers of which shall be the
principal executive officer, principal financial officer or principal
accounting officer of the Company or such Guarantor, as the case may be)
stating that a review of the activities of the Company or such Guarantor, as
the case may be, during such fiscal year or fiscal quarter, as the case may be,
has been made under the supervision of the signing Officers with a view to
determining whether the Company or such Guarantor, as the case may be, 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 the Company or such Guarantor, as the case may
be, 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 hereof (or, if a
Default or Event of Default shall have occurred, describing all or such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company or such Guarantor, as the case may be, is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of, premium, if any, or interest on the Notes are
prohibited or, if such event has occurred, a description of the event and what
action the Company or such Guarantor, as the case may be, is taking or proposes
to take with respect thereto.
(b) So long as (and to the extent) not contrary to the
then current recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to Section
4.02 shall be accompanied by a written statement of the Company's 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 has violated any provisions of this Article 4 or 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 for any failure to obtain knowledge
of any such violation.
(c) The Company and each Guarantor will, so long as any
of the Notes are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action the
Company or such Guarantor, as the
56
51
case may be, is taking or proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon it or its Subsidiaries' or
Unrestricted Subsidiaries' income, profits or property and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a Lien upon their property; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate negotiations or proceedings and for
which disputed amounts adequate reserves (in the good faith judgment of the
Officers of the Company) have been made.
Section 4.06. Limitations on Additional Indebtedness and Preferred Equity
Interests.
(a) The Company and the Guarantors will not, and will not
permit any of their Subsidiaries to, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) other than Permitted
Indebtedness, provided, however, that the Company and the Guarantors may incur
Indebtedness (including Acquired Indebtedness) if (a) after giving effect on a
pro forma basis to the incurrence of such Indebtedness and to the extent set
forth in the definition of Consolidated Fixed Charge Coverage Ratio the receipt
and application of the proceeds thereof, the Company's Consolidated Fixed
Charge Coverage Ratio would be greater than (i) 2.00 if such Indebtedness is to
be incurred on or before December 1, 1999; and (ii) 2.25 if such Indebtedness
is to be incurred after December 1, 1999; and (b) no Default or Event of
Default shall have occurred and be continuing at the time or as a consequence
of the incurrence of such Indebtedness. Notwithstanding any other provision of
this covenant, a guarantee of Indebtedness will not constitute a separate
incurrence of Indebtedness, if the Indebtedness being guaranteed was incurred
in compliance with the terms of this Indenture.
(b) For purposes of determining compliance with this
Section 4.06, in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness described in the
definition thereof or is otherwise entitled to be incurred pursuant to Section
4.06(a), the Company shall, in its sole discretion, classify such item of
Indebtedness in any manner that complies with this covenant and such item of
Indebtedness will be treated as having been incurred as so classified.
(c) The Company will not issue Subordinated Indebtedness
or Preferred Equity Interests with change of control provisions or asset sales
provisions requiring the payment of such Subordinated Indebtedness or Preferred
Equity Interests prior to the payment in full to the Holders of Notes that have
accepted the Company's Change of Control Offer following a Change in Control or
payment of the Excess
57
52
Proceeds to Holders of Notes that have accepted an Excess Proceeds Offer, as
the case may be.
Section 4.07. Limitation on Restricted Payments.
(a) The Company and the Guarantors will not, and will not
permit any of their Subsidiaries to, directly or indirectly, make, any
Restricted Payment unless:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of or immediately after giving
effect to such Restricted Payment;
(ii) immediately after giving pro forma effect to
such Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06;
and
(iii) immediately after giving effect to such
Restricted Payment, the aggregate of all Restricted Payments declared
or made after the Issue Date through and including the date of such
Restricted Payment (the "Base Period") does not exceed the sum of (1)
50% of the Company's Consolidated Net Income (or in the event such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit) from the Issue Date 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, (2) 100% of the
aggregate net cash proceeds received by the Company from the issue or
sale, during the Base Period, of Equity Interests (other than
Disqualified Equity Interests or Equity Interests of the Company
issued to any Subsidiary of the Company) of the Company or any
Indebtedness or other securities of the Company convertible into or
exercisable or exchangeable for Equity Interests (other than
Disqualified Equity Interests) of the Company which have been so
converted or exercised or exchanged, as the case may be, (3) if any
Restricted Investment that was made after the Closing Date is sold for
cash, the net cash proceeds from such sale to the extent received by
the Company or any Restricted Subsidiary, minus the initial amount of
such Restricted Investment and (4) in the event an Unrestricted
Subsidiary is redesignated as a Restricted Subsidiary, an amount equal
to the lesser of (i) the net book value of such Investments at the
time of such designation, (ii) the fair market value of such
Investments at the time of such designation and (iii) the original
fair market value of such Investments at the time they were made. For
purposes of determining under this clause (c) the amount expended for
Restricted Payments, cash distributed shall be valued at the face
amount thereof and property other than cash shall be valued at its
fair market value at the time expended.
(b) The provisions of this covenant shall not prohibit
(i) the
58
53
agreement or commitment to make any payment or distribution permitted under
this Indenture or the payment or distribution so agreed or committed to be made
as long as such payment or distribution is made on the date of such agreement
or commitment or within 60 days thereof, provided, however, that on the date of
such agreement or commitment such payment would comply with the foregoing
provisions, it being understood that the agreement or commitment to make such
payment or distribution shall constitute Permitted Indebtedness, (ii) the
purchase, redemption or other acquisition or retirement of any Equity Interests
or the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement of Subordinated
Indebtedness by conversion into, or by or in exchange for, Equity Interests
(other than Disqualified Equity Interests), or out of, the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company)
of other Equity Interests of the Company (other than Disqualified Equity
Interests), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement of
Subordinated Indebtedness in exchange for, by conversion into, or out of the
net cash proceeds of, a substantially concurrent sale or incurrence of
Indebtedness (including Disqualified Equity Interests) (other than any
Indebtedness owed to a Subsidiary) of the Company or a Subsidiary that (1) is
contractually subordinated in right of payment to the Notes to at least the
same extent as, and (2) has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity at least equal to the
Weighted Average Life to Maturity of, the Subordinated Indebtedness being paid,
purchased, defeased, repurchased, redeemed or otherwise acquired or retired,
(iv) the purchase, redemption or other acquisition or retirement of any
Disqualified Equity Interests by conversion into, or by exchange for, shares of
Disqualified Equity Interests, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other Disqualified Equity Interests and (v) the purchase, redemption or other
acquisition or retirement for value of any Equity Interests held by any current
or past member of the Company's (or any of its Subsidiaries') management or
board of directors (or the estate, heirs or legatees of any such individual)
pursuant to any management equity subscription agreement, stock option
agreement or other similar agreement; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $500,000 in any twelve-month period; provided, however, that in the
case of the immediately preceding clauses (ii), (iii), (iv) and (v), no Default
or Event of Default shall have occurred and be continuing at the time of such
Restricted Payment or would occur as a result thereof.
(c) In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date for purposes of clause (iii) of
Section 4.07(a), amounts expended pursuant to clauses (i), (ii) and (v) of
Section 4.07(b) shall be included, but without duplication, in such
calculation, and amounts expended pursuant to clauses (iii) and (iv) thereof
shall be excluded.
(d) For purposes of calculating the net cash proceeds
received by the Company from the issuance or sale of its Equity Interests
either upon the conversion of,
59
54
or exchange for, Indebtedness of the Company or any Subsidiary, such amount
will be deemed to be an amount equal to the difference of (a) the sum of (i)
the principal amount or accreted value (whichever is less) of such Indebtedness
on the date of such conversion or exchange and (ii) the additional cash
consideration, if any, received by the Company upon such conversion or
exchange, less any payment on account of fractional shares, minus (b) all
expenses incurred in connection with such issuance or sale. For purposes of
calculating the net cash proceeds received by the Company from the issuance or
sale of its Equity Interests upon the exercise of any options or warrants of
the Company, such amount will be deemed to be an amount equal to the difference
of (a) the additional cash consideration, if any, received by the Company upon
such exercise, minus (b) all expenses incurred in connection with such issuance
or sale.
(e) 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 Section 4.07 were computed, which
calculations may be based upon the Company's latest available financial
statements, and, where required, that no Default or Event of Default exists and
is continuing and no Default or Event of Default will occur immediately after
giving effect to such Restricted Payment.
(f) Section 4.22(b) contains additional limitations on
certain types of Restricted Payments.
Section 4.08. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Company (including entities in which the Company or any
Subsidiary thereof owns a minority interest) (each such transaction, an
"Affiliate Transaction") or extend, renew, waive or otherwise modify the terms
of any Affiliate Transaction entered into prior to the Issue Date unless (i)
such Affiliate Transaction is solely between or among the Company and its
Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or
among Wholly-Owned Subsidiaries of the Company; or (iii) the terms of such
Affiliate Transaction are fair and reasonable to the Company or such
Subsidiary, as the case may be, and the terms of such Affiliate Transaction are
at least as favorable as the terms which could be obtained by the Company or
such Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties. In any Affiliate Transaction
involving an amount or having a value in excess of $1.0 million in any one year
which is not permitted under clause (i) or (ii) above, the Company or such
Subsidiary, as the case may be, must obtain a resolution of its Board of
Directors certifying that such Affiliate Transaction complies with clause (iii)
above. In transactions with a value in excess of $5.0 million which are not
permitted under clause (i) or (ii) above, the Company or such Subsidiary, as
the case may be, must obtain a
60
55
written opinion as to the fairness of such a transaction, from a financial
point of view, from an Independent Financial Advisor.
(b) Section 4.08(a) shall not apply to (i) any
transaction with any current or former officer, director or employee of the
Company (in his or her capacity as such) (or the estate, heirs or legatees of
any such individual) entered into in the ordinary course of business, including
entering into employment agreements, indemnification agreements and
compensation and employee benefit plans, (ii) Restricted Payments to the extent
not prohibited by Section 4.07 and other transactions specifically excluded
from the definition of "Restricted Payments" by reason of exceptions set forth
in such definition and (iii) issuances of Equity Interests of the Company.
Section 4.09. Limitations on Liens.
The Company will not, and will not permit any of its
Subsidiaries to, create, assume, incur or otherwise cause or suffer to exist or
become effective any Liens of any kind (other than Permitted Liens) upon any
property or asset of the Company or any Subsidiary of the Company whether owned
on the Issue Date, or acquired after the Issue Date or on any shares of stock
or debt of any Subsidiary, now owned or hereafter acquired, or on any income or
profits therefrom, or assign or otherwise convey any right to receive income or
profits thereon unless (i) if such Lien secures Senior Indebtedness, the Notes
or such Guarantee are secured on an equal and ratable basis with the obligation
so secured until such time as such obligation is no longer secured by a Lien or
(ii) if such Lien secures Subordinated Indebtedness, such Lien shall be
subordinated to a Lien granted to the Holders on the same collateral as that
securing such Lien to the same extent as such Subordinated Indebtedness is
subordinated to the Notes or such Guarantee.
Section 4.10. [Intentionally Deleted.]
Section 4.11. Limitation on Subsidiaries and Unrestricted Subsidiaries.
(a) The Company may by written notice to the Trustee
designate any Subsidiary (including a newly acquired or a newly formed
Subsidiary) to be an Unrestricted Subsidiary, provided, however, that (i) no
Default or Event of Default shall have occurred and be continuing or would
arise therefrom and (ii) such designation is at that time permitted under
Section 4.07. For purposes of determining whether such designation is
permitted under Section 4.07 above:
(i) an "Investment" shall be deemed to have been
made at the time any Subsidiary is designated as an Unrestricted
Subsidiary in an amount (proportionate to the Company's percentage
Common Equity Interest in such Subsidiary) equal to the greatest of
(a) the net book value of such Investments at the time of such
designation, (b) the fair market value of such Investments at the time
of such designation and (c) the original fair market value of such
61
56
Investments at the time they were made;
(ii) at any date the aggregate of all Restricted
Payments made as Investments since the Issue Date shall exclude and be
reduced by an amount (proportionate to the Company's percentage Common
Equity Interest in such Subsidiary) equal to the net worth of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary
is designated a Subsidiary, not to exceed, in the case of any such
redesignation of an Unrestricted Subsidiary as a Subsidiary, the
amount of Investments previously made by the Company and its
Subsidiaries in such Unrestricted Subsidiary (in each case (i) and
(ii) "net worth" to be calculated based upon the fair market value of
the assets of such Subsidiary as of any such date of designation); and
(iii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at
the time of such transfer.
(b) Notwithstanding paragraph (a), the Board of Directors
of the Company may not designate a Subsidiary of the Company to be an
Unrestricted Subsidiary unless such Subsidiary: (i) has no Indebtedness other
than Non-Recourse Debt; (ii) is not party to any agreement, contract,
arrangement or understanding with the Company or any Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Subsidiary than those that might
be obtained at the time from Persons who are not Affiliates of the Company;
(iii) is a Person with respect to which neither the Company nor any of its
Subsidiaries has any direct or indirect obligation (1) to subscribe for
additional Equity Interests or (2) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; (iv) does not guarantee or otherwise directly or indirectly
provide credit support for any Indebtedness of the Company or any of its
Subsidiaries; and (v) has at least one director on its board of directors that
is not a director or executive officer of the Company or any of its
Subsidiaries and has at least one executive officer that is not a director or
executive officer of the Company or any of its Subsidiaries.
(c) If, at any time, any Unrestricted Subsidiary would
fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Person shall be deemed to be incurred by a Subsidiary of
the Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.06, the Company shall be in default of
such covenant).
Section 4.12. Additional Guarantees.
If the Company or any of its Subsidiaries organized under the
laws of the United States or any state thereof (a "domestic Subsidiary") shall
acquire or create another domestic Subsidiary after the Issue Date, then such
newly acquired or created
62
57
domestic Subsidiary will be required to execute a supplemental indenture, in
the form attached as Exhibit E and reasonably satisfactory in form and
substance to the Trustee (and with such documentation relating thereto as the
Trustee shall require, including, without limitation, an Opinion of Counsel as
to the enforceability of such supplemental indenture and Guarantee).
Section 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any of its Subsidiaries to (a) pay dividends or make any
other distributions in cash or otherwise to the Company or any Subsidiary on
its Equity Interests, (b) pay any Indebtedness owed to the Company or any
Subsidiary, (c) make loans or advances to the Company or any Subsidiary
thereof, (d) transfer any of its properties or assets to the Company or any
Subsidiary thereof (other than customary restrictions on transfer of property
subject to a Permitted Lien under the term of the agreements creating such
Permitted Lien (other than a Lien on cash not constituting proceeds of non-cash
property subject to a Permitted Lien) which would not materially adversely
affect the Company's ability to satisfy its obligations under the Notes), or
(e) guarantee the Notes, except, in each case, for such encumbrances or
restrictions existing under or contemplated by or by reason of (i) the Notes or
this Indenture; (ii) any restrictions existing under or contemplated by
agreements evidencing the New Credit Facility as in effect as of the Issue
Date, and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive with respect
to such dividend and other payment restrictions affecting Subsidiaries than
those contained in the New Credit Facility as in effect on the Issue Date;
(iii) any restrictions with respect to a Subsidiary of the Company that was not
a Subsidiary of the Company on the Issue Date, which are in existence at the
time such Person becomes a Subsidiary of the Company (but not created in
connection with or contemplation of such Person becoming a Subsidiary of the
Company and which encumbrance or restriction is not applicable to any Person or
the property or assets of any Person other than such Person or the property or
assets of such Person so acquired); (iv) any agreement that governs Refinancing
Indebtedness, provided, however, that the terms and conditions of any such
restrictions are not materially less favorable in the aggregate to the Holders
of the Notes than those under or pursuant to the agreement evidencing the
Indebtedness being refinanced or replaced; (v) customary non-assignment
provisions in any contract or licensing agreement entered into by the Company
or any Subsidiary of the Company in the ordinary course of business or in any
lease governing any leasehold interest of the Company or a Subsidiary; (vi)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (d) above
on the property so acquired; (vii) restrictions existing by reason of or under
63
58
Indebtedness existing on the Issue Date; (viii) any restrictions existing under
any agreement entered into with respect to the sale or disposition of all or
substantially all the Equity Interests or assets of a Subsidiary provided that
the disposition or sale is governed by the restrictions described under
Sections 4.20 and 4.21; or (ix) restrictions contained in agreements governing
other Indebtedness permitted to be incurred in accordance with this Indenture
provided that the restrictions are not materially more restrictive in the
aggregate than the restrictions contained in this Indenture.
Section 4.14. Restriction on Sale and Issuance of Subsidiary Interests.
The Company (i) will not, and will not permit any Subsidiary
to, transfer, convey, sell, lease or otherwise dispose of any Equity Interests
of any Subsidiary to any Person other than the Company or a Wholly-Owned
Subsidiary (except directors' qualifying shares or shares required to be held
by foreign nationals, in each case to the extent mandated by applicable law),
unless (a) such transfer, conveyance, sale, lease or other disposition is of
all the Equity Interests of such Subsidiary and (b) the net cash proceeds from
such transfer, conveyance, sale, lease or other disposition are applied in
accordance with Section 4.21 and (ii) will not permit any Subsidiary to issue
any of its Equity Interests (except directors' qualifying shares or shares
required to be held by foreign nationals, in each case to the extent mandated
by applicable law) to any Person other than to the Company or a Wholly-Owned
Subsidiary.
Section 4.15. Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any of its
Subsidiaries to, enter into any Sale and Lease- Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold, (ii) immediately prior to
and after giving effect to the Attributable Indebtedness in respect of such
Sale and Lease-Back Transaction, the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.06 and (iii) the net cash proceeds received by the Company or its
Subsidiaries from the Sale and Lease-Back Transaction are applied in accordance
with Section 4.21.
Section 4.16. Line of Business.
The Company will not, and will not permit any of its
Subsidiaries to, engage as a material part of its business in any business
other than the business conducted by the Company and its Subsidiaries as of the
Issue Date or any other business determined by the Company's Board of
Directors, in good faith, to be reasonably related to the foregoing.
64
59
Section 4.17. Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall take any
action or suffer to exist any condition that would require the Company or any
of its Subsidiaries to register as an "investment company" (as that term is
defined in the Investment Company Act of 1940, as amended), or to otherwise
become subject to regulation as an investment company.
Section 4.18. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or agreed to be paid to all Holders of the Notes which so consent,
waive or agree to amend within any time period set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.19. Corporate Existence.
Subject to Article 5 and Section 10.04 hereof, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, and the corporate, partnership or
other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and 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 4.20. Change of Control.
(a) Within 30 days of the occurrence of a Change of
Control, the Company shall notify the Trustee in writing of such occurrence and
shall make an offer to purchase (the "Change of Control Offer") all or any
portion (equal to $1,000 or an integral multiple of $1,000) of the outstanding
Notes at a cash purchase price equal to 101% of the principal amount thereof
plus any accrued and unpaid interest and Liquidated Damages, if any, thereon to
the Change of Control Payment Date (as hereinafter defined) (such applicable
purchase price being hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this covenant.
(b) Within 30 days of the occurrence of a Change of
Control, the Company also shall (i) cause a notice of the Change of Control
Offer to be sent at least once to the Dow Xxxxx News Service or similar
business news service in the United
65
60
States and (ii) send by first-class mail, postage prepaid, to the Trustee and
to each Holder of the Notes, at the address appearing in the register
maintained by the Registrar of the Notes, a notice describing the transactions
constituting a Change of Control and stating:
(1) that the Change of Control Offer is being
made pursuant to this Section 4.20 and that all Notes tendered will be
accepted for payment, subject to the terms and conditions set forth
herein;
(2) the Change of Control Purchase Price and the
purchase date (which shall be a Business Day no earlier than 20
Business Days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in the
payment of the Change of Control Purchase Price, any Notes accepted
for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date;
(5) that Holders accepting the offer to have
their Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes to the Paying Agent at the address
specified in the notice prior to the close of business on the Business
Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw
their acceptance if the Paying Agent receives, not later than the
close of business on the fifth Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of $1,000 and integral multiples
thereof;
(8) any other reasonable procedures that a Holder
must follow to accept a Change of Control Offer or effect withdrawal
of such acceptance; and
(9) the name and address of the Paying Agent.
66
61
(c) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment all Notes or portions
thereof or beneficial interests under a Global Note tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Notes or portions thereof or beneficial interests
so tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Paying Agent shall promptly (1) mail to
each Holder of Notes so accepted and (2) cause to be credited to the respective
accounts of the Holders under a Global Note of beneficial interests so accepted
payment in an amount equal to the Change of Control Purchase Price for such
Notes, and the Company shall execute and issue, and the Trustee shall promptly
authenticate and mail to such Holder, a new Certificated Note equal in
principal amount to any unpurchased portion of the Certificated Notes
surrendered and shall issue a new Global Note equal in principal amount to any
unpurchased portion of beneficial interest so surrendered or shall reflect on
such Global Note or a schedule thereto such change in beneficial interest;
provided, however, that each such new Note shall be issued in an original
principal amount in denominations of $1,000 and integral multiples thereof.
(d) The Change of Control provisions described above will
be applicable whether or not any other provisions of this Indenture are
applicable. The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change or Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(e) Section 4.22 contains additional provisions relating
to Change of Control Offers.
Section 4.21. Limitation on Certain Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Subsidiary, as the case may be, receives consideration at the time of such sale
or other disposition at least equal to the fair market value thereof (as
reasonably determined for Asset Sales in excess of $1 million in good faith by
its Board of Directors); (ii) not less than 75% of the consideration received
by the Company or the Subsidiary, as the case may be, from such Asset Sale is
in the form of cash or Temporary Cash Investments; provided that the amount of
(A) any liabilities (as shown on the Company's or a Subsidiary's most recent
balance sheet) of the Company or a Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes
or any Guarantee thereof) that are assumed by the transferee of any such assets
or an Affiliate thereof pursuant to a customary novation agreement that
releases the Company or such Subsidiary from further liability and (B) any
securities, notes or other obligations
67
62
received by the Company or a Subsidiary from such transferee or an Affiliate
thereof that are converted by the Company or a Subsidiary into cash prior to
the Reinvestment Date (to the extent of the cash received) shall be deemed to
be cash for purposes of this provision; and (iii) the Asset Sale Proceeds
received by the Company or such Subsidiary are applied, to the extent the
Company elects, (A) to repay and permanently reduce outstanding Senior
Indebtedness under the New Credit Facility, other secured Senior Indebtedness
or any other Senior Indebtedness that has a maturity date earlier than the
maturity of the Notes and to permanently reduce the commitments in respect
thereof, provided, however, that such repayment and commitment reduction occurs
prior to the Reinvestment Date or (B) to an investment in assets (including
Equity Interests or other securities purchased in connection with the
acquisition of Equity Interests or property of another Person) used or useful
in the Company's business; provided, however, that such investment occurs or
the Company or a Subsidiary enters into contractual commitments to make such
investment, subject only to customary conditions (other than the obtaining of
financing), on or prior to the 270th day following receipt of such Asset Sale
Proceeds (the "Reinvestment Date") (and notifies the Trustee of the same in
writing) and Asset Sale Proceeds contractually committed are so applied within
360 days following the receipt of such Asset Sale Proceeds or (C) as Excess
Proceeds as set forth below. Pending the final application of any such Asset
Sale Proceeds, the Company may temporarily reduce Senior Indebtedness or
otherwise invest such Asset Sale Proceeds in any manner that is not prohibited
by this Indenture. Any Asset Sale Proceeds that are not applied as permitted by
clause (iii)(A) or (iii)(B) of the preceding sentence shall constitute "Excess
Proceeds." If at any time from and after the Issue Date the aggregate amount of
Excess Proceeds exceeds $5 million, the Company shall offer (an "Excess
Proceeds Offer") to purchase from all Holders of Notes, pursuant to procedures
set forth in this Indenture and if the Company is required to do so under the
terms of any other Senior Indebtedness, to purchase from the Holders of such
other Senior Indebtedness the maximum principal amount of Notes and principal
of such other Senior Indebtedness that may be purchased with such Excess
Proceeds at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued interest, and Liquidated Damages, if any, to the date of
the purchase. To the extent that the purchase price of Notes and principal of
such other Senior Indebtedness tendered pursuant to such Excess Proceeds Offer
is less than the amount of Excess Proceeds, the Company may use such portion of
the Excess Proceeds that is not used to purchase Notes or such other Senior
Indebtedness so tendered for general corporate purposes not inconsistent with
the Notes or this Indenture. If the aggregate purchase price of Notes and
principal of such other Senior Indebtedness tendered pursuant to such Excess
Proceeds Offer is more than the amount of the Excess Proceeds, the Notes and
principal of such other Senior Indebtedness tendered will be repurchased on a
basis pro rata to the amount tendered or by such other method as the Trustee
shall deem fair and appropriate. Upon the completion of any Excess Proceeds
Offer and the closing of any repurchase of Notes and principal of such other
Senior Indebtedness tendered pursuant to such Excess Proceeds Offer, the amount
of Excess Proceeds shall be deemed to be zero.
68
63
(b) If the Company is required to make an Excess Proceeds
Offer, the Company shall mail, within 30 days following the Reinvestment Date,
a notice to the Holders of the Notes describing the transactions giving rise to
the Excess Proceeds Offer and stating, among other things: (1) that such
Holders have the right to require the Company to apply the Excess Proceeds to
repurchase such Notes at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase; (2) the purchase date, which shall be
no earlier than 30 days and not later than 60 days from the date such notice is
mailed; (3) the instructions, reasonably determined by the Company, that each
Holder of Notes must follow in order to have such Notes repurchased; and (4)
the calculations used in determining the amount of Excess Proceeds to be
applied to the repurchase of such Notes.
(c) The Company or any of its Subsidiaries may engage in
transactions in which assets are transferred in exchange for one or more
like-kind assets; provided that if the fair market value of the assets to be
transferred by the Company or such Subsidiary, plus the fair market value of
any other consideration paid or credited by the Company or such Subsidiary
exceeds $1 million, such transaction shall require approval of the Board of
Directors of the Company; provided that no such transaction shall be permitted
if the Consolidated Fixed Charge Coverage Ratio of the Company would be reduced
after giving effect to such transaction. Each transaction governed by this
Section 4.21(c) shall be valued at an amount equal to all consideration
received by the Company or such Subsidiary in such transaction, other than the
like-kind assets received pursuant to such exchange ("Other Consideration"),
for purposes of determining whether an Asset Sale has occurred. If the Other
Consideration is of an amount and character such that such transaction
constitutes an Asset Sale, then the first paragraph of this Section 4.21 shall
be applicable to any Asset Sale Proceeds of such Other Consideration.
(d) Section 4.22 contains additional provisions relating
to Excess Proceeds Offers.
Section 4.22. General Provisions Related to Change of Control
Offers and Excess Proceeds Offers.
(a) If any Indebtedness under the New Credit Facility is
outstanding at the time of the occurrence of a Change of Control or at the time
the Company is required to make an Excess Proceeds Offer and the New Credit
Facility shall prohibit the Company from fully complying with its obligations
to make and consummate a Change in Control Offer or an Excess Proceeds Offer,
prior to the mailing of the notice to Holders described in the preceding
paragraphs, but in any event within 30 days following any Change of Control or
Reinvestment Date, the Company shall (i) repay in full all obligations and
terminate all commitments under the New Credit Facility or offer to repay in
full all obligations and terminate all commitments under the New Credit
Facility or (ii) obtain the requisite consent under the New Credit Facility to
69
64
permit the making of, and the repurchase of the Notes pursuant to, the Change
of Control Offer or the Excess Proceeds Offer. The time by which the Company is
required to commence and consummate a Change of Control Offer or an Excess
Proceeds Offer shall be deferred until the Company has taken the actions
required by this Section 4.22(a).
(b) If the Company or any Subsidiary thereof has issued
any outstanding (i) Subordinated Indebtedness or (ii) Preferred Equity
Interests, and the Company or such Subsidiary is required to make a Change of
Control Offer or an Excess Proceeds Offer or to make a distribution with
respect to such Subordinated Indebtedness or Preferred Equity Interests in the
event of a change of control or sale of assets, the Company and such Subsidiary
shall not consummate any such offer or distribution with respect to such
Subordinated Indebtedness or Preferred Equity Interests until such time as the
Company shall have paid the Change of Control Purchase Price in full to the
Holders of Notes that have accepted the Company's Change of Control Offer and
shall otherwise have consummated the Change of Control Offer made to Holders of
the Notes, or until such time as the Company has paid the Excess Proceeds to
Holders of the Notes that have accepted the Excess Proceeds Offer and shall
otherwise have consummated the Excess Proceeds Offer, as the case may be.
(c) The Company will comply with any applicable
requirements of Rule 14e-1 as then in effect with respect to any Change in
Control Offer or Excess Proceeds Offer and the purchase of any Notes
thereunder.
Section 4.23. Maintenance of Office or Agency.
The Company shall maintain in the City and State of New York
an office or agency where Notes may be surrendered for registration of transfer
or exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 11.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency; provided, however, that no such designation or rescission shall relieve
the Company of its obligation to maintain an office or agency in the City and
State of New York for such purposes.
The Company hereby initially designates the Corporate Trust Office of
70
65
the Trustee as such office of the Company; provided, however, that no such
designation or rescission shall relieve the Company or its agent of its
obligation to maintain an office or agency in the Borough of Manhattan, City of
New York for such purposes.
Section 4.24. Maintenance of Properties and Insurance; Books and Records;
Compliance with Laws.
(a) The Company shall, and shall cause its Subsidiaries
to, at all times, cause all material properties used or useful to the conduct
of their business, taken as a whole, to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) as
determined in the good faith judgment of the Officers of the Company; provided,
however, that the Company or any Subsidiary shall not be prevented hereby from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is in the good
faith judgment of any Officer or the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be.
(b) The Company and each of its Subsidiaries shall
provide or cause to be provided, for itself and each of their respective
Subsidiaries, insurance (including appropriate self-insurance) that is adequate
and appropriate (in the good faith judgment of an Officer of the Company) for
the conduct of the business of the Company and such Subsidiaries in a prudent
manner.
(c) The Company shall and shall cause each of its
Subsidiaries to keep books of record and account, in which entries shall be
made of all material financial transactions and the assets and business of the
Company and its Subsidiaries as are necessary to permit the Company to prepare
financial statements in accordance with GAAP.
(d) The Company shall and shall cause each of its
Subsidiaries to comply in all material respects with all statutes, laws,
ordinances, or government rules and regulations to which they are subject,
non-compliance with which would materially adversely affect the financial
condition of the Company and its Subsidiaries taken as a whole.
Section 4.25. Further Assurance to the Trustee.
The Company shall, upon request of the Trustee, execute and
deliver such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectively the provisions of this
Indenture.
71
66
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Merger, Consolidation or Sale of Assets.
(a) The Company will not consolidate with, merge with or
into, or sell, assign, lease, convey, transfer or otherwise dispose of (a
"transfer") all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions), to any Person unless: (i) the Company shall be the continuing
Person, or the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or to which the properties and assets of
the Company are transferred shall be a corporation organized and existing under
the laws of the United States or any State thereof or the District of Columbia
and shall expressly assume, by a supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all of the obligations of
the Company under the Notes and this Indenture, and the obligations under this
Indenture shall remain in full force and effect; (ii) immediately before and
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and (iii) except in the case of
a merger or consolidation of the Company with or into a Wholly-Owned Subsidiary
of the Company, the Company 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 (a) immediately after giving effect to such transaction on a pro forma
basis could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the covenant set forth under Section 4.06 and (b)
immediately thereafter shall have a Consolidated Net Worth equal to or greater
than the Consolidated Net Worth of the Company immediately prior to such
transaction.
(b) In connection with any consolidation, merger or
transfer of assets contemplated by this provision, the Company shall deliver,
or cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this provision and that
all conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01,
the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall
be relieved of all obligations and covenants under this Indenture and the
Notes, except that such predecessor corporation shall not be so relieved if it
retains any material assets other than (i) the proceeds of the sale of assets
and (ii) Equity Interests in Unrestricted Subsidiaries.
72
67
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) there is a default in payment of any principal of, or
premium, if any, on the Notes when such principal or premium becomes due and
payable;
(2) there is a default for 30 days in the payment of any
interest on or Liquidated Damages, if any, with respect to the Notes after such
interest or Liquidated Damages becomes due and payable;
(3) there is a failure of the Company or its Subsidiaries
to comply with any purchase or payment obligations set forth in Section 4.20 or
4.21 or with Section 4.07 or Section 5.01;
(4) there is a default by the Company or its subsidiaries
in the observance or performance of any other provision in the Notes or this
Indenture for 30 days after written notice from the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding;
(5) there is a default under any agreement, 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 Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Subsidiaries), whether such Indebtedness or guarantee now exists
or is created after the Issue Date, which default (a) is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness at final
maturity (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 the
maturity of which has been so accelerated, aggregates $5.0 million or more;
(6) a court of competent jurisdiction enters any final
judgment or judgments which can no longer be appealed for the payment of money
in excess of $5.0 million (which are not paid or covered by third party
insurance by financially sound insurers that have not disclaimed or threatened
to disclaim coverage) shall be rendered against the Company or any Subsidiary
thereof, and shall not be discharged for any period of 60 consecutive days
during which a stay of enforcement shall not be in effect;
73
68
(7) any Guarantee of a Significant Subsidiary shall be
held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor that is a
Significant Subsidiary shall deny or disaffirm its obligations under its
Guarantee; and
(8) the Company or any Subsidiary pursuant to or within
the meaning of any Bankruptcy Law;
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is not paying its debts as they
become due; or
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of the property of the
Company or any Subsidiary, or
(C) orders the liquidation of the Company or any
Subsidiary, and, in each case under this clause (9), the order or
decree remains unstayed and in effect for 60 consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors as in effect from time
to time. The term "Custodian," as used in this Article 6, means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee shall not be charged with knowledge of any Default or Event of Default
unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office by the Company or any other Person.
The Trustee may withhold notice to the Holders of the Notes
of any
74
69
default (except in payment of principal or premium, if any, or interest on the
Notes or that resulted from the failure of the Company to comply with the
provisions of Sections 4.20 and 4.21) if the Trustee considers it to be in the
best interest of the Holders of the Notes to do so.
Section 6.02. Acceleration.
(a) If an Event of Default (other than an Event of
Default with respect to the Company under Section 6.01(8) or (9)) shall have
occurred and be continuing, then the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding may declare to
be immediately due and payable the entire principal amount of all the Notes
then outstanding plus accrued interest and Liquidated Damages to the date of
acceleration. If an Event of Default specified in Section 6.01(8) or (9) with
respect to the Company occurs, the principal of and interest on all the Notes
shall become immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal, premium, interest and Liquidated Damages
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
(b) Upon the occurrence of an Event of Default under
Sections 6.01(8) or (9) with respect to the Company, the principal, premium and
interest amount with respect to all of the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or the Holders of the Notes.
(c) In the event of a declaration of acceleration of the
Notes because an Event of Default has occurred and is continuing as a result of
a Payment Default on or the acceleration of any Indebtedness described in
Section 6.01(5), the declaration of acceleration of the Notes shall be
automatically rescinded and annulled if such Payment Default is waived or cured
or the holders of such Indebtedness described in such Section 6.01(5) have
rescinded the declaration of acceleration in respect of such Indebtedness, as
appropriate, within 30 days from the date of such declaration and if (i) the
rescission and annulment of the acceleration of the Notes would not conflict
with any judgment or decree of a court of competent jurisdiction and (ii) all
existing Events of Default, except non-payment of principal, interest,
Liquidated Damages or premium on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.
(d) In the case of any Event of Default occurring solely
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
75
70
had to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of this Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of, or premium, if any, interest and Liquidated
Damages on the Notes or to enforce the performance of any provision of the
Notes or this Indenture and make take any necessary action requested of it as
Trustee to settle, compromise, adjust or otherwise conclude any proceeding to
which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.07, 8.02 and 11.06 hereof, the Holders
of a majority in principal amount of the Notes then outstanding have the right
to waive any existing or potential future Default or Event of Default or
compliance with any provision of this Indenture or the Notes. 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; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent to any such subsequent Default or Event of Default
except as specifically contemplated thereby.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes
then outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines may be unduly prejudicial to the
rights of another Noteholder not taking part in such direction, and the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the
proceedings so directed may involve it in personal liability unless the Trustee
has asked for and received indemnification reasonably satisfactory to it
against any loss, liability or expense caused by its following such direction;
provided that the Trustee may take
76
71
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer, and if requested,
provide to the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) 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
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium,
if any, and interest of the Note on or after the respective due dates expressed
in the Note, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium,
interest or Liquidated Damages specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or the Guarantors (or any
other obligor on the Notes) for the whole amount of unpaid principal and
accrued interest remaining unpaid, together with any premium, interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate
77
72
then borne by the Notes, and such further amounts as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, including all sums due and owing to the Trustee pursuant to
Section 7.07.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company or the
Guarantors (or any other obligor upon the Notes), their respective creditors or
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same after deduction of its reasonable charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Noteholder 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 Noteholders, 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.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Noteholder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, interest and Liquidated Damages as to each,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10. The Trustee shall give
the Company prior
78
73
notice of any such record date and payment date; provided, however, that the
failure to give any such notice shall not affect the establishment of such
record date or payment date or any payment to Noteholders pursuant to this
Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10%
in principal amount of the Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the same circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties
that are specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture
against the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may
79
74
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 but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) In the absence of bad faith on its part, the
Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Sections 6.02 and 6.05
hereof.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided,
paragraphs (a), (b), (c), (d), (f) and (g) of this Section 7.01 shall govern
every provision of this Indenture that in any way relates to the Trustee.
(f) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability, expense or fee.
(g) 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 or any Guarantor. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by the law.
80
75
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel, or both, which
shall conform to the provisions of Section 11.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent (other than the
negligence or willful misconduct of an agent who is an employee of the Trustee)
appointed by it with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers; provided that the Trustee's conduct
does not constitute negligence or bad faith.
(5) The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may make loans to, accept deposits
from, perform services for or otherwise deal with the Company or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however,
shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes or any money paid to the
Company pursuant to the terms of this Indenture and it shall not be responsible
for any statement in the Notes or any document used in connection with the sale
of the Notes other than its certificate of
81
76
authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee based upon information contained in an Officers' Certificate or
upon notice from Holders of 25% or more of the aggregate principal amount of
the Notes then outstanding, the Trustee shall mail to each Noteholder notice of
the Default within 60 days after it occurs. Except in the case of a Default in
payment of principal or premium, if any, or interest on the Notes, or that
resulted from the failure of the Company to comply with Section 4.20 or 4.21,
the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines it to be in the best interests of the Holders
of the Notes to do so.
Section 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May
15 of any year, commencing the May 15 following the date of this Indenture, the
Trustee shall mail to each Noteholder a brief report dated as of such May 15
that complies with TIA Section 313(a); provided that no such report need be
transmitted if no such events listed in TIA Section 313(a) have occurred
within such period. The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA Section
313(c) and TIA Section 313(d).
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange and the Trustee shall comply with TIA Section
313(d).
Section 7.07. Compensation and Indemnity.
The Company and the Guarantors (on a joint and several basis)
shall pay to the Trustee from time to time such reasonable compensation as
shall be agreed in writing between the Company and the Trustee for its services
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company and
the Guarantors (on a joint and several basis) shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or
made by it in connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company and the Guarantors (on a joint and several basis)
shall indemnify each of the Trustee and any predecessor Trustee for, and hold
it harmless against, any and all loss, damage, claim, liability, reasonable
expense (including but not
82
77
limited to reasonable attorneys' fees and expenses) or taxes (other than taxes
based on the income of the Trustee) incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder (including, without limitation, settlement costs). The
Trustee shall notify the Company and the Guarantors in writing promptly of any
claim asserted against the Trustee for which it may seek indemnity. However,
the failure by the Trustee to so notify the Company and the Guarantors shall
not relieve the Company or the Guarantors of their obligations hereunder.
Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company and the Guarantors in this
Section 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee in its capacity as such, except such
money or property held in trust to pay principal of, premium, if any, or
interest on particular Notes. The obligations of the Company and the Guarantors
under this Section 7.07 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall be joint and several
liabilities of the Company and each of the Guarantors and shall survive the
satisfaction and discharge of this Indenture, including the termination or
rejection hereof in any bankruptcy proceeding to the extent permitted by law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company and the
Guarantors in writing, such resignation to become effective upon the
appointment of a successor Trustee. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by notifying the removed
Trustee in writing and may appoint a successor Trustee with the Company's
written consent which consent shall not be unreasonably withheld. The Company
may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
83
78
(4) the Trustee otherwise 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.
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 25% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder 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. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. 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 by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, bank, trust company or national banking association, subject to
Section 7.10 hereof, the successor corporation or national banking association
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the provision in Section 310(b)(1);
provided that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities, or
conflicts of interest or participation in other securities, of the Company or
the Guarantors are outstanding if the requirements for exclusion set forth in
TIA Section 310(b)(1) are met.
84
79
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 7.12:
(A) that it will hold all sums held by it as agent for
the payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of
any Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(C) that it will give the Trustee written notice within
three (3) Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if any,
or interest on, the Notes when the same shall be due and payable.
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders
The Company and/or one or more Guarantors and the Trustee may
modify, waive, amend or supplement this Indenture or the Notes without notice
to or consent of any Noteholder:
(1) to comply with Section 5.01;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the SEC under the
TIA;
(4) to cure any ambiguity, defect or inconsistency;
85
80
(5) to make any other change that does not adversely affect
the rights of any Noteholder;
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes; or
(7) to add additional Guarantors with respect to the Notes.
The Trustee is hereby authorized to join with the Company and
the Guarantors, if any, 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 any such supplemental indenture
which adversely affects its own rights, duties or immunities under this
Indenture.
Section 8.02. With Consent of Holders.
The Company and/or one or more Guarantors and the Trustee,
with the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Notes, may modify, amend, waive or
supplement this Indenture, the Notes or Guarantees, except that no such
modification amendment, waiver or supplement shall, without the consent of each
Holder affected thereby, (i) reduce the amount of Notes whose Holders must
consent to an amendment, modification, supplement, or waiver to this Indenture
or the Notes, (ii) reduce the rate of or change the time for payment of
interest on any Note, (iii) reduce the principal of or premium or Liquidated
Damages on or change the stated maturity of any Note, (iv) make any Note
payable in money other than that stated in the Note or change the place of
payment to outside of the United States, (v) change the amount or time of any
payment required by the Notes or reduce the premium payable upon any redemption
of Notes or change the time before which no such redemption may be made, (vi)
waive a default on the payment of the principal of, interest, premium or
Liquidated Damages on, or redemption payment with respect to any Note (except a
rescission of acceleration of the Notes by Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment default
that resulted from such acceleration to the extent permitted under Section
6.02), (vii) subordinate in right of payment, or otherwise subordinate the
Notes or any Guarantee to any other Indebtedness or obligation of the Company
or the Guarantors, (viii) amend, alter, change or modify the obligation of the
Company to make and consummate a Change of Control Offer in the event of a
Change of Control or make and consummate an Excess Proceeds Offer or waive any
Default in the performance of any such offers or modify any of the provisions
or definitions with respect to any such offers, (ix) except pursuant to this
Indenture, release any Guarantor from its obligations under its Guarantee, or
change any Guarantee in a manner that adversely affects Holders of the Notes,
(x) take any other action otherwise prohibited by this Indenture to be taken
without the consent of each Holder affected thereby or
86
81
(xi) modify, amend, waive or supplement this Section 8.02, or Section 6.04 or
Section 6.07.
After a modification, amendment, supplement or waiver under
this Section 8.02 becomes effective, the Company shall mail to the Holders a
notice briefly describing the modification, 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
modification, amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed amendment,
modification, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until a modification, amendment, supplement, waiver or other
action becomes effective, a consent to it by a Holder of a Note is a continuing
consent conclusive and binding upon such Holder and every subsequent Holder of
the same Note or portion thereof, and of any Note issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Note. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Note or portion of a Note, if the
Trustee receives the notice of revocation before the date the modification,
amendment, supplement, waiver or other action becomes effective.
Notwithstanding the foregoing, nothing in this paragraph shall impair the right
of any Holder under TIA Section 316(b).
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
modification, amendment, supplement, or waiver. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such modification, amendment, supplement, or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date unless the consent of
the requisite number of Holders has been obtained.
After a modification, amendment, supplement, waiver or other
action becomes effective, it shall bind every Noteholder and every subsequent
Noteholder.
87
82
Section 8.05. Notation on or Exchange of Notes.
If a modification, amendment, supplement or waiver changes
the terms of a Note, the Trustee may request the Holder of the Note to deliver
it to the Trustee. In such case, the Trustee shall place an appropriate
notation on the Note about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such
modification, amendment, supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any modification, amendment,
supplement or waiver authorized pursuant to this Article 8 if the modification,
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but
need not, sign it. In signing or refusing to sign such modification,
amendment, supplement or waiver, the Trustee shall be entitled to receive and,
subject to Section 7.01 hereof, shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel stating that such modification,
amendment, supplement or waiver is authorized or permitted by this Indenture
and such supplemental indenture constitutes the legal, valid and binding
obligation of the Company and the Guarantors enforceable against each of them
in accordance with its terms (subject to customary exceptions). The Company or
any Guarantor may not sign a modification, amendment or supplement under
Section 8.02 until the Board of Directors of the Company or such Guarantor, as
appropriate, approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors, if any, may terminate their
obligations under the Notes, the Guarantees, if any, and this Indenture, except
the obligations referred to in the last paragraph of this Section 9.01, if (i)
there shall have been canceled by the Trustee or delivered to the Trustee for
cancellation all Notes theretofore authenticated and delivered (other than any
Notes that are asserted to have been destroyed, lost or stolen and that shall
have been replaced as provided in Section 2.07 hereof) or (ii) all Notes not
theretofore surrendered or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee, and the Company has paid all sums
88
83
payable by it hereunder or irrevocably deposited all required sums with the
Trustee.
After such delivery the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 2.07, 7.07, 9.05, 9.06
and 9.08 hereof shall survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be
discharged from its obligations with respect to the Notes and the Guarantors,
if any, discharged from their obligations under the Guarantees, if any, on the
date the conditions set forth in Section 9.04 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 Notes and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned (and the
Trustee, at the expense of the Company, shall, subject to Section 9.06 hereof,
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of outstanding Notes to receive solely from the trust
funds described in Section 9.04 hereof and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (B) the Company's obligations with
respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, and 2.08,
(C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07) and (D) this Article 9. Subject to compliance with this Article 9, the
Company may exercise its option under this Section 9.02 with respect to the
Notes notwithstanding the prior exercise of its option under Section 9.03 below
with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution,
the Company and the Guarantors, if any, shall be released from their respective
obligations under Sections 4.02 through 4.16, inclusive, Sections 4.18 through
4.22, inclusive, Section 4.24, Section 4.25, Section 5.01, Section 6.01(3),
Sections 6.01(5) through Section 6.01(7), inclusive, Sections 6.01(8) and
6.01(9) (only with respect to Subsidiaries) and Article 10 hereof with respect
to the outstanding Notes on and after the date the conditions set forth in
Section 9.04 hereof are satisfied (hereinafter, "Covenant Defeasance") and the
Notes shall thereafter be deemed to not be outstanding for purposes of any
direction, waiver, consent, declaration or act of the Holders (and
89
84
the consequences thereof) in connection with such covenants but shall continue
to be outstanding for all other purposes hereunder. For this purpose, such
Covenant Defeasance means that the Company and the Guarantors, if any, may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any
other document, but the remainder of this Indenture and the Notes shall be
unaffected thereby.
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 to the outstanding Notes:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article 9 applicable to it) as 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 the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, in each case 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, and accrued interest on the
outstanding Notes at the maturity date of such principal, premium, if any, or
interest, or on dates for payment and redemption of such principal, premium, if
any, and interest selected in accordance with the terms of this Indenture and
of the Notes;
(2) no Event of Default or Default (other than (i)
Defaults or Events of Default related to or arising out of incurrences of
Indebtedness (and liens and customary documentation related thereto) the
proceeds of which are used to satisfy the requirement in clause (1) above and
(ii) Defaults and Events of Default arising under Section 6.01(5) related to
Defaults and Events of Default described in clause (i) of this parenthetical)
with respect to the Notes shall have occurred and be continuing on the date of
such deposit, or shall be continuing on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period under any Bankruptcy Law applicable to the Company in
respect of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall
not result in
90
85
a breach or violation of, or constitute default under any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee will be required to
register as an investment company under the Investment Company Act of 1940, as
amended;
(5) in the case of an election under Section 9.02, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change in
any applicable Federal income tax law with the effect that, and such opinion
shall confirm that, the Holders of the outstanding Notes or persons in their
positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such deposit, defeasance and discharge and will
be subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
(6) in the case of an election under Section 9.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal Defeasance under
Section 9.02 or the Covenant Defeasance under Section 9.03 (as the case may be)
have been complied with; and
(8) The Company shall have delivered to the Trustee a
certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others.
Section 9.5. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but
such money need not be segregated from other funds except to the
91
86
extent required by law. The Trustee shall be under no duty to invest such
money or U.S. Government Obligations.
The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, 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 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03
hereof by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company and any Guarantor
under this Indenture, the Notes and the Guarantees, if any, shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 9
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 9.01 hereof;
provided, however, that if the Company or any Guarantors have made any payment
of principal of, premium, if any, or accrued interest on any Notes because of
the reinstatement of their obligations, the Company or such Guarantors, as the
case may be, shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.04 hereof, to the
Company (or, if such moneys had been deposited by any Guarantors, to such
Guarantors), and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
92
87
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or any Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or any Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
and the Guarantors, if any, for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Trustee or any such Paying Agent, before
being required to make any such repayment, may, at the expense of the Company
and the Guarantors, if any, either mail to each Noteholder affected, at the
address shown in the register of the Notes maintained by the Registrar pursuant
to Section 2.03 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in The City of New York, New York,
a 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 mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors, if any, or the
release of any money held in trust by the Company or any Guarantors, as the
case may be, Noteholders entitled to the money must look only to the Company
and any Guarantors for payment as general unsecured creditors unless applicable
abandoned property law designates another person.
ARTICLE 10.
GUARANTEE OF NOTES
Section 10.01. Guarantee.
(a) Subject to the provisions of this Article 10, each
Guarantor hereby jointly and severally and unconditionally guarantees to each
Holder and to the Trustee, on behalf of the Holders, (i) the full and punctual
payment of the principal of, and premium, if any, and interest, and Liquidated
Damages, if any, on each Note, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of, and premium, if any,
and interest on the Notes, to the extent lawful, and the due and punctual
performance of all other Obligations of the Company to the Holders or the
Trustee all in accordance with the terms of such Note and this Indenture, and
(ii) in the case of any extension of time of payment or renewal of any Notes or
any of such other Obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal, at
stated maturity,
93
88
by acceleration or otherwise. Each Guarantor, by execution of the Guarantee,
agrees that its obligations thereunder and hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any
failure to enforce the provisions of any such Note or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
(b) Each Guarantor, by execution of the Guarantee, waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to any such Note or
the Indebtedness evidenced thereby and all demands whatsoever, and covenants
that the Guarantee will not be discharged as to any such Note except by payment
in full of the principal thereof, premium if any, and interest thereon and as
provided in Sections 9.01, 9.02, 9.03 and 10.04 hereof. The obligations of
each Guarantor hereunder shall not be affected by (a) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Registration
Rights Agreement, the Purchase Agreement, the Notes or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Registration Rights Agreement, the Notes or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or Trustee to
exercise any right or remedy against any other Guarantor of the Obligations; or
(f) any change in the ownership of such Guarantor, except as provided in
Section 10.04. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Guarantor or any Custodian, trustee,
liquidator or other similar official acting in relation to either the Company
or any Guarantor, any amount paid by either the Company or any Guarantor to the
Holder or Trustee, each Guarantor's Guarantee, to the extent therefor
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed by the Guarantee may be accelerated as provided in Article 6 hereof
for the purposes of the Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of the Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on the Notes under the
Guarantee provided for in this Article 10 and not discharged. Failure to make
such demand shall not affect the validity or enforceability of the Guarantee
upon any Guarantor.
94
89
(c) A Guarantee shall not be valid or become obligatory
for any purpose with respect to a Note unless the certificate of authentication
on such Note shall have been signed by or on behalf of the Trustee.
(d) Each Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorney's fees) incurred by the Trustee as
any Holder in enforcing any rights under this section.
Section 10.02. Execution and Delivery of Guarantees.
(a) To evidence the Guarantee set forth in this Article
10, each Guarantor hereby agrees that a notation of such Guarantee may be
placed on each Note authenticated and made available for delivery by the
Trustee and that this Guarantee shall be executed on behalf of each Guarantor
by the manual or facsimile signature of an Officer of each Guarantor.
(b) Each Guarantor hereby agrees that the Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee.
(c) If an Officer of a Guarantor whose signature is on
the Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of
such Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under Federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
Section 10.04. Release of Guarantor.
(a) No Guarantor may consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person), another Person
whether or not
95
90
affiliated with such Guarantor unless (i) subject to the provisions of the
following paragraph (b), the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee in respect of the Notes, this
Indenture and such Guarantor's Guarantee, and (ii) immediately after giving
effect to such transaction, no Default or Event of Default exists.
(b) In the event of a sale or other disposition of all
or substantially all of the assets of any Guarantor to a third party or an
Unrestricted Subsidiary in a transaction that does not violate any of the
covenants in this Indenture (including, without limitation, Section 4.21), by
way of merger, consolidation or otherwise, or a sale or other disposition of
all of the capital stock of any Guarantor, or the designation of such Guarantor
as an Unrestricted Subsidiary in accordance with this Indenture, then (i) in
the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor, or
in the event of such designation, such Guarantor will be released from and
relieved of any obligations under its Guarantee, or (ii) in the event of a sale
or other disposition of all of the assets of such Guarantor, the Person
acquiring such assets will not be required to assume the obligations of such
Guarantor under its Guarantee.
Section 10.05. Additional Guarantors.
(a) The Company covenants and agrees that it will cause
any Person which becomes obligated to guarantee the Notes, pursuant to the
terms of this Indenture, including, without limitation, Section 4.11 and
Section 10.04 hereof, to promptly execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit E hereto pursuant to which such
Subsidiary shall become a Guarantor under this Article 10 and shall Guarantee
the Obligations. Concurrently with the execution and delivery of such
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel and an Officers' Certificate to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such Subsidiary
and that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
(b) Any Guarantor that is designated an Unrestricted
Subsidiary in accordance with the terms of this Indenture shall be released
from and relieved of its obligations under its Guarantee and any Unrestricted
Subsidiary that ceases to be an Unrestricted Subsidiary will be required to
execute a Guarantee in accordance with the terms of this Indenture.
96
91
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 11.02. Notices.
Any notice or communication shall be given in writing and
delivered in person, sent by facsimile, delivered by commercial courier service
or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
HealthCor Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx X-0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopier No.: 000-000-0000
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxxx, Xx., P.C.
Telecopier No.: 214-969-4343
If to the Trustee:
Norwest Bank Minnesota, N.A.
Corporate Trust Services
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
Telecopier No.: 000-000-0000
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company, any Guarantors or the Trustee by written notice
to the
97
92
others may designate additional or different addresses for subsequent notices
or communications.
Any notice or communication mailed to a Holder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar. If a notice or communication to a Holder is
mailed in the manner provided above, it shall be deemed duly given on the date
so deposited in the mail, whether or not the addressee receives it.
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.
In case, by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05) in form and substance reasonably
satisfactory to the Trustee 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;
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 11.05) in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied; and
(3) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee that
complies with TIA Section 314(c).
98
93
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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, she or
he has made such examination or investigation as is necessary to enable her or
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been satisfied.
Section 11.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any Guarantor or any other obligor on the Notes or
by any Affiliate of any of them shall be disregarded as though they were not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trustee actually knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith shall not be disregarded
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to the Notes and that the pledgee is not the
Company, a Guarantor or any other obligor upon the Notes or any Affiliate of
any of them.
Section 11.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
meetings of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for their functions.
Section 11.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a
day on which banking institutions are not required to be open in the State of
New York. 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
99
94
intervening period.
Section 11.09. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan, security or debt agreement of the Company or any Subsidiary
thereof. No such indenture, loan, security or debt agreement may be used to
interpret this Indenture.
Section 11.11. No Recourse Against Others.
No recourse for the payment of the principal of or premium,
if any, or interest on any of the Notes, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company or any Guarantor in this Indenture or in
any supplemental indenture, or in any of the Notes, or because of the creation
of any Indebtedness represented thereby, shall be had against any stockholder,
officer, director, partner, affiliate, beneficiary or employee, as such, past,
present or future, of the Company or of any successor corporation or against
the property or assets of any such stockholder, officer, employee, partner,
affiliate, beneficiary or director, either directly or through the Company or
any Guarantor, or any successor corporation thereof, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the Notes are solely obligations of the Company and the Guarantors, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, any stockholder, officer, employee, partner, affiliate, beneficiary or
director of the Company or any Guarantor, or any successor corporation thereof,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or the Notes or implied therefrom, and that any and all such personal liability
of, and any and all claims against every stockholder, officer, employee,
partner, affiliate, beneficiary and director, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Notes. It is understood that this limitation
on recourse is made expressly for the benefit of any such shareholder,
employee, officer, partner, affiliate, beneficiary or director and may be
enforced by any one or all of them.
100
95
Section 11.12. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors except as
otherwise provided in Section 10.04. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 11.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.15. Separability.
Each provision of this Indenture shall be considered
separable and if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
101
96
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed, all as of the date and year first written above.
HEALTHCOR HOLDINGS, INC.
By: /s/ S. XXXXX XXXXXX
--------------------------------
Name: S. Xxxxx Xxxxxx
Title: Chairman of the Board and Chief
Executive Officer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
HEALTHCOR INC.
PHYSICIANS HOME HEALTH NETWORK, INC.
HEALTHCOR OXYGEN AND MEDICAL EQUIPMENT,
INC.
HEALTHCOR REHABILITATION SERVICES, INC.
HEALTHCOR PHARMACY, INC.
HEALTHCOR FOUNDATION
HC PERSONNEL RESOURCES, INC.
CARE NETWORK, INC., as Guarantors
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and
Chief Financial Officer
102
EXHIBIT A
FORM OF NOTE
(FACE OF NOTE)
[Delete this paragraph in the case of an Unrestricted Certificated Note or an
Unrestricted Global Note] THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A
NON-U.S. PERSON THAT IS OUTSIDE THE UNITED STATES; (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) TO A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A "U.S. PERSON" AS DEFINED IN
RULE 902 UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO
ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF SUCH HOLDER'S PROPERTY OR THE
PROPERTY OF SUCH ACCOUNT AT ALL TIMES BE WITHIN ITS CONTROL AND TO COMPLIANCE
WITH APPLICABLE SECURITIES LAWS OF ANY JURISDICTION; AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THE TRANSFER RESTRICTIONS SET FORTH IN THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF ANY CERTIFICATED SECURITY, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE OF SUCH
CERTIFICATED SECURITY RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH
CERTIFICATED SECURITY TO THE TRUSTEE. IF ANY PROPOSED TRANSFEREE IS AN
INSTITUTIONAL
A-1
103
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR APPLICABLE
SECURITIES LAWS OF ANY JURISDICTION. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
[Delete this paragraph in the case of a Certificated Note] THIS GLOBAL NOTE IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS THEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
A-2
104
CUSIP NUMBER ________________
HEALTHCOR HOLDINGS, INC.
11% Senior Note Due 2004
HEALTHCOR Holdings, Inc., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to ________________________ or registered assigns the principal
sum of ___________________ Dollars, on December 1, 2004.
Interest Payment Dates: June 1 and December 1, commencing June 1, 1998
Record Dates: May 15 and November 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-3
105
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: December 1, 1997
HEALTHCOR HOLDINGS, INC.
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
Certificate of Authentication:
This is one of the 11% Senior
Notes due 2004 referred to in
the within-mentioned Indenture
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
A-4
106
(REVERSE SIDE)
HEALTHCOR HOLDINGS, INC.
11% Senior Note Due 2004
1. INTEREST.
(a) HealthCor Holdings, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at a
rate of 11% per annum from the date of original issuance until maturity.
Interest is payable semi-annually in arrears on June 1 and December 1 of each
year, commencing on June 1, 1998, to Holders of record of the Notes at the
close of business on the immediately preceding May 15 and November 15,
respectively (whether or not a Business Day). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
The Notes will be issued in denominations of $1,000 and any integral multiple
of $1,000. The Company shall pay interest on overdue principal at 12% per
annum, and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
[Delete the following paragraph in the case of an Unrestricted
Certificated Note or an Unrestricted Global Note]
(b) If (i) the Company fails to file any of the
Registration Statements required by the Registration Rights Agreement on or
before the date specified for such filing, (ii) any of such Registration
Statements is not declared effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target Date"), (iii) the
Company fails to consummate the Exchange Offer within 30 business days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective or usable in connection with resales of Transfer Restricted
Securities during the periods specified in the Registration Rights Agreement
(each such event referred to in clauses (i) through (iv) above a "Registration
Default"), then the Company will pay Liquidated Damages to each holder of
Notes, with respect to the first 90-day period immediately following the
occurrence of the first Registration Default, in an amount equal to one-half of
one percentage point (0.5%) per annum of the principal amount of Notes held by
such holder. The amount of the Liquidated Damages will increase by an
additional one-half of one percent (0.5%) per annum for each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of one and one-half percent (1.5%) per annum. All accrued Liquidated Damages
will be paid by the Company on each Interest Payment Date to the holder of any
Global Note by wire transfer of immediately available funds or by federal funds
check and to holders of Certificated Securities by wire transfer to the
accounts specified by them or by mailing
A-5
107
checks to their registered addresses if no such accounts have been specified.
2. METHOD OF PAYMENT.
The Company will pay interest on the Notes (except defaulted
interest) and Liquidated Damages to the Persons who are registered Holders of
Notes at the close of business on the May 15 or November 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.11
of the Indenture with respect to defaulted interest. If this Note is a Global
Note, payments in respect of this Note (including principal, premium, interest
and Liquidated Damages, if any) shall be made by wire transfer of immediately
available funds to the accounts specified by the Holder hereof. If this Note
is a Certificated Note, the Company will make all payments of principal,
premium, interest and Liquidated Damages, if any, by wire transfer of
immediately available funds to the accounts specified by the Holder hereof or,
if no such account is specified, by mailing a check to such Holder's registered
address. Such payment shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
3. PAYING AGENT AND REGISTRAR.
Initially, Norwest Bank Minnesota, N.A., the Trustee under the
Indenture, will act as Paying Agent.
4. INDENTURE.
The Company issued this Note under an Indenture dated as of
December 1, 1997 (as such may be amended, supplemented or otherwise modified
from time to time, the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of this Note include those stated in this Indenture and
those made part of this Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this
Indenture. This Note is subject to all such terms, and the Holder of this Note
is referred to this Indenture and said Trust Indenture Act for a statement of
them. All capitalized terms in this Note, unless otherwise defined, have the
meanings assigned to them in the Indenture. The Notes will be limited to up to
$80,000,000 aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth below, the Notes will not be
redeemable at the option of the Company prior to December 1, 2001. Thereafter,
the Notes will be redeemable at any time, and from time to time, at the option
of the Company, in whole or in part, at the redemption prices set forth in
Section 3.07.
(b) Notwithstanding the foregoing, at any time prior to
December 1,
A-6
108
2000, the Company may redeem up to an aggregate of $25 million in principal
amount of Notes at a redemption price equal to 111% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date with the net cash proceeds of one or more Public
Equity Offerings, provided that at least $55 million in principal amount of
Notes remains outstanding immediately following each such redemption and that
any such redemption occurs within 90 days following the closing of any such
Public Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth under Sections 4.20 and 4.21 the Company
is not obligated to make any mandatory redemption of or sinking fund payments
with respect to the Notes.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at
least 30 days but not more than 60 days prior to the Redemption Date to each
Holder of Notes to be redeemed at its registered address as it shall appear on
the register of the Notes maintained by the Registrar. On and after any
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption unless the Company shall fail to deposit the redemption
price of such Notes or portions thereof with the paying agent.
8. OFFERS TO PURCHASE.
This Indenture requires that certain proceeds from Asset Sales
be used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth
in this Indenture. The Company is also required to make an offer to purchase
Notes upon occurrence of a Change of Control in accordance with procedures set
forth in this Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. A Holder may register
the transfer or exchange of Notes in accordance with this Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by this
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before a selection of Notes to be redeemed or any Note after
it is called for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
X-0
000
00. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner
of it for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture, the Notes and
the Guarantees thereof may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Certain amendments
specified in the Indenture shall not be effective against a Holder without the
consent of such Holder (or a prior Holder). Without the consent of any Holder
of a Note, the Company and the Trustee may amend or supplement the Indenture,
the Notes or any Guarantee thereof to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that does not adversely affect the legal
rights under the Indenture of any such Holder, to evidence and provide for the
acceptance of appointment under the Indenture by a successor Trustee with
respect to the Notes or to add additional guarantors with respect to the Notes.
13. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under this Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company, any Guarantor or their Affiliates, and may otherwise deal with
the Company, any Guarantor or their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS.
As more fully described in this Indenture, a director,
officer, employee, partner, affiliate, beneficiary or stockholder, as such, of
the Company or any Guarantor shall not have any liability for any obligations
of the Company or any Guarantor under the Notes or this Indenture or for any
claim based on, in respect or by reason of, such
A-8
110
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
15. DEFEASANCE AND COVENANT DEFEASANCE.
This Indenture contains provisions for defeasance of the
entire indebtedness on this Note and for defeasance of certain covenants in
this Indenture upon compliance by the Company with certain conditions set forth
in this Indenture.
16. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of
a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
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 Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
HealthCor Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx X-0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
X-0
000
00. AUTHENTICATION
This Note shall not be valid until the Trustee or an
authenticating agent manually signs the Certificate of Authentication on the
other side of this Note.
20. INDEMNIFICATION
The Holder of this Note, by acceptance hereof, agrees to
indemnify the Company and the Trustee against any liability that may result
from the transfer, exchange or assignment of this Note in violation of any
provision of this Indenture and/or applicable U.S. Federal or state securities
law.
A-10
112
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________
________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Check One
_ (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A
thereunder.
or
_ (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and this Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 (Transfer and Exchange) of
the Indenture shall have been satisfied.
Date: _______________________
Your Signature: _________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ____________________________________________________
A-11
113
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ____________________
______________________________________
NOTICE: To be executed by an executive officer
A-12
114
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.20 or Section 4.21 of the
Indenture, check the appropriate box:
_ Section 4.20
_ Section 4.21
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.20 or Section 4.21 of this Indenture, state the
principal amount you elect to have purchased:
$____________________
(multiple of $1,000)
Date: _______________
Your Signature: ______________________________________
(Sign exactly as your name appears on the face of this Note)
________________________
Signature Guaranteed
A-13
115
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note have been made:
----------------- --------------- -------------- ------------------ -----------------
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Note following officer of
Amount of this Amount of this such decrease (or Trustee or Note
Date of Exchange Global Note Global Note increase) Custodian
A-14
116
FORM OF NOTATION ON NOTE RELATING TO GUARANTEE
Pursuant and subject to the terms of the Indenture, each Guarantor has
jointly and severally and unconditionally guaranteed to each Holder and to the
Trustee the full and punctual payment of the principal of, premium, if any,
interest and Liquidated Damages, if any, on the Notes.
Each Guarantor's liability shall be limited as set forth in Section
10.03 of the Indenture, and Guarantors may be released from the Guarantee as
provided in Sections 9.01, 9.02, 9.03 and 10.04 of the Indenture.
The provision of Article 10 of the Indenture are incorporated herein
by reference. Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
HEALTHCOR INC.
PHYSICIANS HOME HEALTH NETWORK, INC.
HEALTHCOR OXYGEN AND MEDICAL
EQUIPMENT, INC.
HEALTHCOR REHABILITATION SERVICES, INC.
HEALTHCOR PHARMACY, INC.
HEALTHCOR FOUNDATION
HC PERSONNEL RESOURCES, INC.
CARE NETWORK, INC., as Guarantors
By:__________________________________
Name:
Title:
X-00
000
XXXXXXX X
FORM OF CERTIFICATE OF TRANSFER
HealthCor Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx X-0000
Xxxxxx, Xxxxx 00000
[Registrar address block]
Re: 11% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of December 1,
1997 (as such may have been amended, supplemented or otherwise modified to the
date hereof, the "Indenture"), among HealthCor Holdings, Inc., as issuer (the
"Company"), the Guarantors parties thereto and Norwest Bank Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
_______________________ (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ____________ (the "Transferee"), as further specified in Annex
A hereto. In connection the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Certificated Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Certificated Note for its own account or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of
states of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the
B-1
118
144A Global Note and/or the Certificated Note and in the Indenture and the
Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby, further
certifies that (i) the Transfer is not being made to a Person in the United
States, and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of any restricted period under applicable law, the Transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial Purchaser). Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Certificated Note and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of states of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof:
or
(c) [ ] such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of
B-2
119
the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Certificated Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Certificated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Note and/or the Certificated Notes and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED CERTIFICATED NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of states of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Certificated Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
states of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Certificated Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Certificated Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being, effected pursuant to and in compliance with an exemption
from the
B-3
120
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of states of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit, for the benefit of the Company, and for the benefit of your counsel
and the Company's counsel, who may rely hereon.
-----------------------------------
[insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: _____________, ____
B-4
121
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _______), or
(ii) [ ] Regulation S Global Note (CUSIP ________), or
(iii) [ ] IAI Global Note (CUSIP ________): or
(b) [ ] a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ________), or
(ii) [ ] Regulation S Global Note (CUSIP ________), or
(iii) [ ] IAI Global Note (CUSIP _______); or
(iv) [ ] Unrestricted Global Note (CUSIP____); or
(b) [ ] a Restricted Certificated Note: or
(c) [ ] an Unrestricted Certificated Note.
in accordance with the terms of the indenture.
B-5
122
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
HealthCor Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx X-0000
Xxxxxx, Xxxxx 00000
[Registrar address block]
Re: 11% Senior Notes due 2004
(CUSIP_________)
Reference is hereby made to the Indenture, dated as of December 1,
1997 (as such may have been amended, supplemented, or otherwise modified to the
date hereof, the "Indenture"), among HealthCor Holdings, Inc., as issuer (the
"Company"), the Guarantors parties thereto and Norwest Bank Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interest (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Global Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in accordance
with the United States Securities Act of 1933, as amended (the "Securities
Act"), (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted Global
Note is being acquired in compliance with any applicable blue sky securities
laws of states of the United States.
C-1
123
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED CERTIFICATED NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Certificated Note, the Owner hereby certifies (i) the
Certificated Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Certificated
Note is being acquired in compliance with any applicable blue sky securities
laws of states of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Certificated Note for a beneficial interest
in an Unrestricted Global Note in an equal principal amount, the owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Certificated Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue
sky, securities laws of states of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO AN
UNRESTRICTED CERTIFICATED NOTE. In connection with the Exchange of the Owner's
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Certificated Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Certificated Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, and for the benefit of your counsel and the
Company's counsel, who may rely hereon.
---------------------------
[Insert Name of Owner]
By:
------------------------
Name:
Title:
Dated: ___________, ____
C-2
124
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
HealthCor Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx X-0000
Xxxxxx, Xxxxx 00000
[Registrar address block]
Re: 11% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of December 1,
1997 (as such may have been amended, supplemented or otherwise modified to the
date hereof the "Indenture"), among HealthCor Holdings, Inc., as issuer (the
"Company"), the Guarantors parties thereto and Norwest Bank Minnesota, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $__________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Certificated Note.
we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by and not to
resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that
D-1
125
if we should sell the Notes or any interest therein, we will do so only (A) to
the Company or any subsidiary thereof, (B) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined therein),
(C) to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144 under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
Person purchasing the Certificated Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Notes.
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest
therein purchased by us for our own account or for one or more accounts (each
of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company (and your respective counsel) are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interest party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
----------------------------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------------------
Name:
Title:
Dated: __________, ____
D-2
126
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of [
], among [NEW GUARANTOR] (the "New Guarantor"), HEALTHCOR HOLDINGS, INC., a
Delaware corporation (the "Company") and the existing Guarantors (the "Existing
Guarantors") under this Indenture referred to below, and NORWEST BANK
MINNESOTA, N.A., as trustee under this Indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to
the Trustee an Indenture (as such may have been amended, supplemented and
modified to the date hereof, the "Indenture"), dated as of December 1, 1997,
providing for the issuance of an aggregate principal amount of $80,000,000 of
11% Senior Notes due 2004 (the "Notes");
WHEREAS this Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all of the Company's obligations
under the Notes pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 8.01 of this Indenture, the
Trustee, the Company and Existing Guarantors are 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 New Guarantor, the Company, the Existing Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings assigned to them in this Indenture.
(b) For all purposes of this Supplement, except as otherwise
herein expressly provided or unless the context otherwise requires: (i) the
terms and expressions used herein shall have the same meanings as corresponding
terms and expressions used in this Indenture; and (ii) the words "herein,"
"hereof" and "hereby"
127
and other words of similar import used in this Supplemental Indenture refer to
this Supplemental Indenture as a whole and not to any particular section
hereof.
2. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors, to guarantee the Company's
obligations under the Notes on the terms and subject to the conditions set
forth in Article 10 of the Indenture and to be bound by all other applicable
provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
6. 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.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By:
--------------------------------
Name:
Title:
E-2
128
HEALTHCOR HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
--------------------------------
Name:
Title:
NORWEST BANK MINNESOTA, N.A.
as Trustee
By:
--------------------------------
Name:
Title:
E-3
