1
EXHIBIT 10.C
INDENTURE, dated as of May 13, 1998, between Oxford Health Plans,
Inc. a Delaware corporation ("the Company") and The Chase Manhattan Bank, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the 11% Senior Notes due 2005
(the "Series A Senior Notes") and the 11% Series B Senior Notes due 2005 (the
"Series B Senior Notes" and, together with the Series A Senior Notes, the
"Senior Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS
"Acquired Indebtedness" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary or is designated a
Restricted Subsidiary of such specified Person, including, without limitation,
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary or Restricted Subsidiary of
such specified Person, and (ii) Indebtedness secured by a Lien encumbering any
asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial interests in a Global Senior Note, the rules and procedures of the
Depository that apply to such transfer and exchange.
"Asset Sale" means (i) the sale, lease (other than an operating lease),
conveyance or other disposition of any assets (including, without limitation, by
way of a sale and leaseback, including any disposition by means of a merger,
consolidation or similar transaction and including the issuance, sale or other
transfer of any of the capital stock of any Restricted Subsidiary of such
person) other than to the Company or to any of its Wholly Owned Subsidiaries
(including the receipt of proceeds of insurance paid on account of the loss of
or damage to any asset and awards of compensation for any asset taken by
condemnation, eminent domain or similar proceeding) that have a fair market
value (as determined in good faith by the Board of Directors of such Person) in
excess of $2 million or for net cash proceeds in excess of $2 million); and (ii)
the
2
2
issuance of Equity Interests in any Restricted Subsidiaries or the sale of
any Equity Interests in any Restricted Subsidiaries, in each case, in one or a
series of related transactions, provided, that notwithstanding the foregoing,
the term "Asset Sale" shall not include: (a) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of the
Company, as permitted pursuant to Section 5.1 hereof, (b) the sale or lease of
equipment, inventory, accounts receivable or other assets in the ordinary course
of business and consistent with past practice, including, without limitation,
the sale of any investments constituting a portion of an investment portfolio in
the ordinary course of business and consistent with past practice, (c) a
transfer of assets by the Company to a Restricted Subsidiary or by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary, (d) an issuance
of Equity Interests by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary, (e) Permitted Investments, (f) any cash dividend,
distribution, Investment or payment made pursuant to the first or second
paragraph of Section 4.10 hereof, (g) the sale or transfer of surplus or
obsolete equipment in the ordinary course of business, (h) a pledge of all or
any part of the Capital Stock of any Restricted Subsidiary or a Lien on any
other property or asset of a Restricted Subsidiary permitted by the Indenture or
(i) Excluded Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended, to the extent the lease payments during such extension
period are required to be capitalized on a balance sheet as a liability in
accordance with GAAP).
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of a limited liability company or similar entity, any
membership or similar interests therein, (iii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iv) in the case of a
partnership, partnership interests (whether general or limited) and (v) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means: (i) U.S. Government Obligations or securities
that
3
3
would be U.S. Government Obligations if such securities were not callable or
redeemable at the option of the issuer thereof, in each case maturing not more
than one year after the date of acquisition; (ii) any certificate of deposit,
maturing not more than one year after the date of acquisition, issued by, or
time deposit of, a commercial banking institution that has combined capital and
surplus of not less than $100.0 million or its equivalent in foreign currency,
whose debt is rated at the time as of which any investment therein is made, "A"
(or higher) according to S&P or "Aa" (or higher) according to Moody's, or if
neither S&P nor Moody's shall then exist, the equivalent of such rating by any
other nationally recognized securities rating agency; (iii) obligations issued
or fully guaranteed by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or Moody's; (iv) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (i) and (ii), above
entered into with any financial institution meeting the qualifications specified
in clause (ii) above; and (v) commercial paper having one of the two of the
highest ratings obtainable from either Moody's or S&P and in each case maturing
within one year after the date of acquisition.
"CEDEL" means Cedel Bank, societe anonyme.
"Definitive Senior Notes" means Senior Notes that are substantially in
the form of the Senior Note attached hereto as Exhibit A, that do not include
the information or text called for by footnotes 1 and 3.
"Change of Control" means such time as (i) the Company becomes aware
that, a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act) other than the Permitted Holders has become, directly or
indirectly, the "beneficial owner", by way of merger, consolidation or
otherwise, of 51% or more of the voting power of the voting stock of the Company
on a fully-diluted basis after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of the Company (whether
or not such securities are then currently convertible or exercisable), (ii) the
sale, lease or transfer of all or substantially all of the assets of the Company
to any person or group (other than the Permitted Holders), or (iii) during any
period of two consecutive calendar years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any
new directors whose election by the Board of Directors of the Company or whose
nomination for election by the shareholders of the Company was approved by a
vote of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved or was approved by the Permitted Holders)
cease for any reason to constitute a majority of the directors of the Company
then in office.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cashflow" means, with respect to the Company and its
Restricted Subsidiaries for any period, the sum of, without duplication, (i) the
Consolidated Net
4
4
Income for such period, plus (ii) to the extent deducted from Consolidated Net
Income for such period, (x) the Fixed Charges for such period, plus (y) non-cash
dividends on the Company's preferred stock, plus (iii) Consolidated Income Taxes
for such period, plus (iv) consolidated depreciation, amortization (including
amortization of goodwill and other intangibles), depletion and other non-cash
charges of the Company and its Restricted Subsidiaries required to be reflected
as expenses on the books and records of the Company, minus (v) cash payments
with respect to any nonrecurring, non-cash charges previously added back
pursuant to clause (iv). Notwithstanding the foregoing, the provision for taxes
based on the income or profits of, and the depreciation and amortization and
other non-cash charges of, a Restricted Subsidiary of a Person shall be added to
Consolidated Net Income to compute Consolidated Cashflow only to the extent that
the Net Income of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated Income Taxes" means, with respect to any Person for any
period, taxes imposed upon such Person or other payments required to be made by
such Person by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Subsidiaries (to the extent such income or profits were included in
computing Consolidated Net Income for such period), regardless of whether such
taxes or payments are required to be remitted to any governmental authority.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
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 Restricted 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 Restricted Subsidiary
thereof, (ii) the Net Income of, or any dividends or other distributions from,
any Unrestricted Subsidiary, to the extent otherwise included, shall be
excluded, whether or not distributed to the Company or one or its Restricted
Subsidiaries, (iii) without duplication, (x) losses of any Restricted Subsidiary
shall be excluded with respect to the calculation under Section 4.12 hereof, (y)
Net Income of any Restricted Subsidiary shall be excluded with respect to the
calculation under such covenant to the extent that such Net Income has not been
dividended or distributed in cash to the Company, and (z) intercompany payments
to the Company by the Restricted Subsidiaries shall be included in Net Income of
the Company and intercompany payments by the Company to the Restricted
Subsidiaries shall be deducted from Net Income with respect to the calculation
under such covenant, (iv) 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, (v) the cumulative effect of a change in accounting principles
shall be excluded, and (vi) income or loss attributable to discontinued
operations shall be excluded.
"Consolidated Net Worth" of a Person at any date means the amount by
which the assets of such Person and its consolidated Restricted Subsidiaries
(less any revaluation or other write-up subsequent to the date of the Indenture
in any such assets
5
5
(other than write-ups of tangible assets of a going concern business made within
twelve months after the acquisition of such business)) exceed the sum of (a) the
total liabilities of such Person and its consolidated Subsidiaries, plus (b) any
Disqualified Stock of such Person or any consolidated Restricted Subsidiaries of
such Person issued to any Person other than such Person or a wholly owned
Restricted Subsidiary of such Person, in each case determined in accordance with
GAAP.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Senior Notes issuable or issued
in whole or in part in global form, the Person specified in the Indenture as the
Depositary with respect to the Senior Notes, until a successor shall have been
appointed and become such Depositary pursuant to the applicable provision of the
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, is convertible
or exchangeable for Indebtedness or Disqualified Stock or redeemable at the
option of the Holder thereof, in whole or in part, on or prior to the date which
is 91 days after the date that the Senior Notes mature.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchange Notes for
Senior Notes.
"Exchange Senior Notes" means the Series B Senior Notes to be issued in
exchange for the Series A Senior Notes pursuant to the Registration Rights
Agreement.
"Excluded Asset Sales" means the sale of the capital stock or assets of
American Psych Systems, Inc., Ralin Medical, Inc., Opticare Eye Health Centers,
Inc., Oxford Health Plans (IL), Inc., Oxford Health Plan (FL), Inc., St.
Augustine Health Care Inc. (Florida), the Medicaid businesses of Subsidiaries of
Oxford in Xxx Xxxxxxxxx, Xxx Xxxxxx, Xxx Xxxx, Xxxxxxx and Pennsylvania, Oxford
Specialty, Direct Script, Inc., Oxford On-Call, Inc., Oxford Health Centers,
Inc., the Company's dental business and Collegiate Healthcare, Inc., in an
aggregate amount of consideration not to exceed $55 million. To the extent the
Company makes a Permitted Investment as described in
6
6
clause (xiii) of the definition thereof, cash and Marketable Securities from
Excluded Asset Sales in an amount equal to such Investment shall be deemed
proceeds from Asset Sales and subject to Section 4.10 hereof. To the extent the
aggregate amount of consideration from Excluded Asset Sales received by the
Company and its Restricted Subsidiaries equals or exceeds $55 million, such
excess shall be deemed proceeds from Asset Sales and subject to Section 4.10
hereof.
"Existing Indebtedness" means the Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Term Loan Agreement)
in existence on the date of the Indenture, until such amounts are repaid.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), and (ii) the consolidated interest
expense of such Person and its Restricted Subsidiaries that was capitalized
during such period, and (iii) any interest expense on Indebtedness of another
Person that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such guarantee or Lien is called upon), and (iv)
all dividend payments, whether or not in cash, on any series of preferred stock
of any such Person payable to a party other than the Company or a Wholly Owned
Subsidiary, other than dividend payments on Equity Interests payable solely in
Equity Interests of the Company.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cashflow of such Person and its Restricted
Subsidiaries for such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that the Company or any of
its Restricted Subsidiaries incurs, assumes, guarantees or repays any
Indebtedness (other than the incurrence or repayment of revolving credit
borrowings used for working capital, except to the extent that a repayment is
accompanied by a permanent reduction in revolving credit commitments) or issues
preferred stock subsequent to the commencement of the four-quarter reference
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
7
7
assumption, guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. For purposes of making the
computation referred to above, (i) acquisitions that have been made by the
Company or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be deemed to have occurred on the first day
of the four-quarter reference period and shall give pro forma effect to the
Consolidated Cashflow and Indebtedness of the Person which is the subject of any
such acquisition (as well as any pro forma expense and cost reductions
attributable thereto), and (ii) the Consolidated Cashflow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, and
Consolidated Cashflow shall reflect any pro forma expense and cost reductions
relating to such discontinuance, and (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges will
not be obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date.
"GAAP" means generally accepted accounting principles in the United
States which are in effect on the date of the Indenture.
"Global Senior Notes" means, collectively, the U.S. Global Senior Note
and the Reg S Global Senior Note.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Healthcare Service Business" means a business, the majority of whose
revenues are derived from providing or arranging to provide or administering,
managing or monitoring healthcare services or any business or activity that is
reasonably similar thereto or a reasonable extension, development or expansion
thereof or ancillary thereto, including, without limitation, the issuance of
health insurance.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Senior Note is registered on
the Registrar's books.
"Indebtedness" means, with respect to any Person, any indebtedness of
such
8
8
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person), the maximum fixed repurchase price of Disqualified
Stock issued by such Person in each case, if held by any Person other than the
Company or a Wholly Owned Subsidiary of the Company, and, to the extent not
otherwise included, the guarantee by such Person of any indebtedness of any
other Person. For the purposes of this definition, the "maximum fixed repurchase
price" of Disqualified Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to the Indenture, and if such price is based
upon, or measured by, the Fair Market Value of such Disqualified Stock, such
Fair Market Value shall be determined in good faith by the board of directors of
the issuer of such Disqualified Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Purchaser" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation.
"Institutional Accredited Investor" means an entity which is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Investment Grade Securities" means: (i) U.S. Government Obligations;
(ii) any certificate of deposit, maturing not more than 270 days after the date
of acquisition, issued by, or time deposit of, a commercial banking institution
that has combined capital and surplus of not less than $100.0 million or its
equivalent in foreign currency, whose debt is rated at the time as of which any
investment therein is made, "A" (or higher) according to S&P or Moody's, or if
neither S&P nor Moody's shall then exist, the equivalent of such rating by any
other nationally recognized securities rating agency; (iii) commercial paper,
maturing not more than 270 days after the date of acquisition, issued by a
corporation (other than an Affiliate or Subsidiary of the Company) with a
rating, at the time as of which any investment therein is made, of "A-1" (or
higher) according to S&P or "P-1" (or higher) according to Moody's, or if
neither S&P nor Moody's shall then exist, the equivalent of such rating by any
other nationally recognized securities rating agency; (iv) any bankers
acceptances or any money market deposit accounts, in each case, issued or
offered by any commercial bank
9
9
having capital and surplus in excess of $100 million or its equivalent in
foreign currency, whose debt is rated at the time as of which any investment
therein is made, "A" (or higher) according to S&P or Moody's, or if neither S&P
nor Moody's shall then exist, the equivalent of such rating by any other
nationally recognized securities rating agency; (v) any other debt securities or
debt instruments with a rating of "BBB -- " or higher by S&P, "Baa-3" or higher
by Moody's, Class "2" or higher by the NAIC or the equivalent of such rating by
S&P, Moody's or the NAIC, or if none of S&P, Moody's and the NAIC shall then
exist, the equivalent of such rating by any other nationally recognized
securities rating agency; and (vi) any fund investing exclusively in investments
of the types described in clauses (i) through (v) above.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel, relocation and
similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company for consideration consisting of common equity securities of the
Company shall not be deemed to be an Investment.
"Issue Date" means the date on which Senior Notes are originally issued
under the Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which federal
offices or banking institutions in the City of New York, in the city of the
principal Corporate Trust Office of the Trustee, or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday, payment may be made on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages owing pursuant to the
Registration Rights Agreement.
"Marketable Securities" means debt or equity securities that are
registered and, in the case of debt securities, are rated in one of the four
highest ratings by one or more nationally recognized rating agencies.
10
10
"Maturity Date" means May 15, 2005.
"Minority Investment" means an Investment in an Equity Interest in a
Person which Investment is held by the Company or a Restricted Subsidiary such
that the Company and its Restricted Subsidiaries do not have more than 50% of
the voting control over all outstanding Equity Interests in such Person.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"NAIC" means the National Association of Insurance Commissioners and
its successors.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP, and, for purposes of clause
(b)(i) of Section 4.11 hereof, and for purposes of Section 4.12 hereof, before
reduction for non-cash preferred stock dividends and for purposes of clause
(b)(ii) of Section 4.11 hereof, before reduction for preferred stock dividends,
excluding in each case, however, (i) any gain (but not loss), together with any
related provision for taxes on such gain (but not loss), realized in connection
with (a) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries, (ii) any
extraordinary or nonrecurring gain (but not loss), together with any related
provision for taxes on such extraordinary or nonrecurring gain (but not loss)
and (iii) for purposes of Section 1.12 hereof, any capital contributions made or
required to be made by the Company.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP and net of any Purchase Money Obligations relating to the assets comprising
such Asset Sale.
"Non-Insurance Litigation" means claims, investigations, proceedings
and litigation arising out of or relating to federal or state law relating to
the purchase or sale of securities, including without limitation stockholders
derivative actions.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides any guarantee or
credit support of any kind (including any undertaking, guarantee, indemnity,
keepwell, makewell, agreement or instrument that would constitute Indebtedness)
or (b) is directly or
11
11
indirectly liable (as a guarantor or otherwise), (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 Restricted Subsidiaries to declare a default under 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 against any of the
assets of the Company or its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to the
Global Senior Notes, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated May 7, 1998,
relating to the Company's offering and placement of the Senior Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 10.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.5 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Oxford Specialty" means Oxford Specialty Holdings, Inc., Oxford
Specialty Management, Inc., Specialty Management Company (NY) IPA, Inc.,
Specialty Management Company (PA) IPA, Inc., Specialty Management Company (NJ)
IPA, Inc. and Specialty Management Company (CT) IPA, Inc.
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment to the Senior Notes. Pari passu means equal to
and without preference, each to the other.
"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).
12
12
"Permitted Holders" means TPG Oxford LLC and its Affiliates.
"Permitted Investments" means (i) any Investments in the Company or in
any of its Restricted Subsidiaries; (ii) any Investment in any Person that
becomes a Restricted Subsidiary as a result of such Investment provided that the
Company, after giving pro forma effect to such Investment, would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.12 hereof;
(iii) Investments in existence, or made pursuant to legally binding written
commitments in existence, on the Issue Date; (iv) Investments in cash, Cash
Equivalents and Investment Grade Securities; (v) loans or advances to employees
made in the ordinary course of business; (vi) receivables owing to the Company
or any Restricted Subsidiary in the ordinary course of business; (vii)
repurchase agreements and reverse repurchase agreements entered into by a
Restricted Subsidiary with any lender or any primary dealer of United States
government securities relating to Investment Grade Securities maturing within
one year from the date of acquisition thereof; provided, that the terms of any
such agreement comply with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy-Repurchase Agreements of
Depository Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985 and, in the case of a repurchase
agreement with a primary dealer, a Restricted Subsidiary of the Company or its
duly authorized custodian shall take possession of the obligations subject to
such agreement; (viii) Investments in Hedging Obligations and other similar
agreements or arrangements designed to protect the Company or any of its
Restricted Subsidiaries against fluctuations in the value of Investments of the
Company and its Restricted Subsidiaries, in each case to the extent permitted
under the Indenture; (ix) accounts receivable created or acquired, and prepaid
expenses arising, in the ordinary course of business; (x) the endorsements of
negotiable instruments for collection or deposit in the ordinary course of
business; (xi) Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10 hereof; (xii) Investments in securities of trade creditors or
customers received in settlement of obligations or pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers; (xiii) Investments in St. Augustine Health Care,
Inc. made after the Issue Date in an amount not to exceed $6,000,000; (xiv)
Investments in an aggregate amount not to exceed $2.5 million at any one time
outstanding which shall be in addition to Investments which may be made pursuant
to clauses (i) through (xiii) above).
"Permitted Liens" means (i) Liens securing Indebtedness incurred
pursuant to any credit agreement or credit facility that is permitted by the
terms of the Indenture to be outstanding (including, without limitation, Liens
securing Indebtedness incurred under the Term Loan Agreement); (ii) Liens in
favor of the Company or any Restricted Subsidiary; (iii) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided that such Liens
were not incurred in connection with, or in contemplation of, such merger or
consolidation and such Liens do not extend to any assets of the Company or any
of its Restricted Subsidiaries other than the assets of the
13
13
Person so merged into or consolidated with the Company or such Restricted
Subsidiary; (iv) Liens on property existing at the time of acquisition thereof
by the Company or any of its Restricted Subsidiary; provided that such Liens
were not incurred in connection with, or in contemplation of, such acquisition
and do not extend to any assets of the Company or any of its Restricted
Subsidiaries other than the property so acquired; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds or performance
bonds, or landlords', carriers', warehousemen's, mechanics', suppliers',
materialmen's or other like Liens, in any case incurred in the ordinary course
of business and with respect to amounts not yet delinquent or being contested in
good faith by appropriate process of law, if a reserve or other appropriate
provision, if any, as is required by GAAP shall have been made therefor; (vi)
Liens existing on the date of the Indenture; (vii) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens on assets of Unrestricted Subsidiaries that secure Non-Recourse
Indebtedness (to the extent permitted under the Indenture) of Unrestricted
Subsidiaries; (ix) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries; (x) statutory Liens of landlords or of mortgagees
of landlords arising by operation of law, provided that the rental payments
secured thereby are not yet due and payable; (xi) Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (xii)
Purchase Money Liens (including extensions and renewals thereof); (xiii)
interests of lessors in capital or operating leases; (xiv) Liens on deposits
made in connection with hedging arrangements; (xv) Liens encumbering deposits
made to secure obligations arising from statutory or regulatory, requirements of
the Company or any of its Restricted Subsidiaries, including rights of offset
and set-off; (xvi) prejudgment Liens and judgment Liens not giving rise to a
Default or Event of Default so long as any appropriate legal proceeding that may
have been duly initiated for the review of such judgment shall not have been
finally terminated or so long as the period within which such proceeding may be
initiated shall not have expired; and (xvii) Liens incurred in the ordinary
course of business of the Company or any Subsidiary of the Company with respect
to obligations permitted under the Indenture that do not exceed $1 million in
principal amount in the aggregate at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (including the issuance of Disqualified Stock in
exchange for Disqualified Stock) of the Company or any of its Restricted
Subsidiaries (other than Indebtedness under the Term Loan Agreement); provided
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the outstanding principal
amount (or then current accreted value, if applicable) and redemption premium
of, plus accrued and unpaid interest on, the Indebtedness so
14
14
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date at least as late as the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Senior Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Senior Notes on terms
at least as favorable to the Holders of Senior Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, or other business entity or government or agency or political
subdivision thereof (including any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business).
"Principal Subsidiary" means Oxford Health Plans (NY), Inc., Oxford
Health Plans (NJ), Inc., Oxford Health Plans (CT), Inc. and Oxford Health
Insurance, Inc.
"Public Equity Offering" means an underwritten public offering pursuant
to a registration statement (other than on Form S-8 or any other form relating
to securities issuable under any benefit plan of the Company) filed with the
Commission of Equity Interests other than Disqualified Stock of the Company or
any successor to the Company.
"Purchase Money Lien" means a Lien granted on an asset or property to
secure a Purchase Money Obligation permitted to be incurred under the Indenture
and incurred solely to finance the purchase, or the cost of construction or
improvement, of such asset or property; provided however, that such Lien
encumbers only such asset or property and is granted within 180 days of such
acquisition.
"Purchase Money Obligations" of any Person means any obligations of
such Person to any seller or any other Person incurred or assumed to finance the
purchase, or the cost of construction or improvement, of real or personal
property to be used in the business of such Person or any of its Restricted
Subsidiaries in an amount that is not more than 100% of the cost, or fair market
value, as appropriate, of such property, and incurred within 90 days after the
date of such acquisition (excluding accounts payable to trade creditors incurred
in the ordinary course of business).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
15
15
"Qualified Insurance Payments" means payments made by third party
insurers to the Company and the Restricted Subsidiaries in respect of
Non-Insurance Litigation, less reimbursement payments required from the Company
or its Restricted Subsidiaries in connection with such payments.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of the Indenture, by and among the Company and
the Initial Purchaser, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, client
or representative for any senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the U.S. Global Senior Note or the Reg S
Global Senior Note.
"Restricted Global Senior Note" means the U.S. Global Senior Note and
the Reg S Global Senior Note, each of which shall bear the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Note Custodian" means the Trustee, as custodian for the
Depository with respect to the Senior Notes in global form, or any successor
entity thereto.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Exchange Act, as such Regulation is in effect on the
date hereof.
16
16
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Term Loan Agreement" means, collectively, (i) that certain Term Loan
Agreement, as in effect on the date of the Indenture, by and among the Company,
the lenders that may be from time to time parties thereto and Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation, as arranger, DLJ Capital Funding, Inc., as
syndication agent, and IBJ Xxxxxxxx Bank & Trust Company, as facility manager,
together with all related guarantees, notes and collateral agreements, as the
foregoing may from time to time be amended, renewed, supplemented, extended,
substituted, replaced, refinanced, restructured or otherwise modified at the
option of the parties thereto, including increases in the principal amount
thereof and including successive substitutions, replacements and refinancings;
and (ii) after the Term Loan Agreement has been terminated and all then
outstanding Indebtedness thereunder or with respect thereto have been repaid in
full in cash and discharged, any successors to or replacements of (as designated
by the Board of Directors of the Company in its sole judgment, and evidenced by
a resolution) such Term Loan Agreement, as such successors or replacements may
from time to time be amended, renewed, supplemented, extended, substituted,
replaced, refinanced, restructured or otherwise modified, including increases in
the principal amount thereof.
"TPG Investment Agreement" means the Investment Agreement dated as of
February 23, 1998 between TPG Oxford LLC and Oxford Health Plans, Inc.
"TPG Securities" means the securities issued by the Company pursuant to
the TPG Investment Agreement.
"Transfer Restricted Senior Notes" means Senior Notes that bear or are
required to bear the Private Placement Legend.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which the Indenture is
qualified under the Trust Indenture Act.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Global Senior Notes" means one or more Global Senior
Notes that do not and are not required to bear the Private Placement Legend.
17
17
"Unrestricted Subsidiary" means (i) any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted 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
or maintain any specified levels of profitability; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors of the Company shall be evidenced to the Trustee by filing
with the Trustee a resolution of the Board of Directors of the Company giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date. The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under Section 4.12 hereof and (ii) no Default or Event of Default
would be in existence following such designation.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is 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 timely 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 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 the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at
18
18
any date, the number of years obtained by dividing (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment, by (ii) the then outstanding principal amount of
such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Restricted Subsidiary
of such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares or shares required by
applicable law to be held by third parties) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person. Unrestricted
Subsidiaries shall not be included in the definition of Wholly Owned Subsidiary
for any purposes of the Indenture.
SECTION 1.2 OTHER DEFINITIONS
Defined
Term in Section
---- ----------
"Affiliate Transaction" 4.16
"Asset Sale Offer" 4.8
"Asset Sale Offer Period" 4.8
"Asset Sale Offer Amount" 4.8
"Asset Sale Purchase Date" 4.8
"Bankruptcy Law" 6.1
"Change of Control Offer" 4.9
"Change of Control Offer Period" 4.9
"Change of Control Payment" 4.9
"Change of Control Purchase Date" 4.9
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Distribution Compliance Period" 2.1
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.8
"Group of Subsidiaries" 6.1
"incur" 4.12
"Interest" 2.13
"Legal Defeasance" 8.2
"Notice of Default" 6.1
"Paying Agent" 2.3
"Payment Default" 6.1
"Private Placement Legend" 2.6
"Reg S Global Senior Note" 2.1
"Registrar" 2.3
"Restricted Payments" 4.11
"Senior Notes" Preamble
"Series A Senior Notes" Preamble
19
19
Defined
Term in Section
---- ----------
"Series B Senior Notes" Preamble
"U.S. Global Senior Note" 2.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture.
The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the Senior Notes;
"indenture security Holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Senior Notes means the Company and any successor
thereto.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by the Trust Indenture Act reference to another
statute or defined by Commission rule under the Trust Indenture Act have the
meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time.
20
20
ARTICLE 2
THE SENIOR NOTES
SECTION 2.1 FORM AND DATING
(a) The Senior Notes and the Trustee's certificate of authentication
shall be substantially in the form set forth in Exhibit A hereto. The Senior
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage and as provided to the Trustee in writing by the Company.
Each Senior Note shall be dated the date of its authentication. The Senior Notes
shall be in denominations of $1,000 and integral multiples thereof. The Series A
Senior Notes and the Series B Senior Notes will be the same except that the
Private Placement Legend will be omitted from the Series B Senior Notes.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(b) Global Senior Notes. The Senior Notes offered and sold to (i) QIBs
in reliance on Rule 144A shall be issued initially in the form of U.S. Global
Senior Notes (the "U.S. Global Senior Notes") which shall be deposited on behalf
of the purchasers of the Senior Notes represented thereby with the Senior Note
Custodian, and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the U.S. Global Senior
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as hereinafter
provided.
The Senior Notes being offered and sold in offshore transactions in
reliance on Regulation S, if any, initially will be in the form of one or more
registered, global book-entry notes without interest coupons (the "Reg S Global
Senior Notes"). The Reg S Global Senior Notes will be deposited with the
Trustee, as custodian for DTC, in New York, New York, and registered in the name
of a nominee of DTC for credit to the accounts of Indirect Participants at
Euroclear and Cedel. During the 40-day period commencing on the day after the
later of the offering date and the original Issue Date of the Senior Notes (the
"Distribution Compliance Period"), beneficial interests in the Reg S Global
Senior Note may be held only through the DTC participants for Euroclear or
CEDEL, and, pursuant to DTC's procedures, Indirect Participants that hold a
beneficial interest in the Reg S Global Senior Note will not be able to transfer
such interest to a person that takes delivery thereof in the form of an interest
in the U.S. Global Senior Notes. After the Distribution Compliance Period
expires and upon receipt by the Trustee of an Officer's Certificate from the
Company stating that such expiration has occurred, (i) beneficial interests in
the Reg S Global Senior Notes may be transferred to a person that takes delivery
in the form of an interest in the U.S. Global Senior Notes and (ii) beneficial
interests in the U.S. Global
21
21
Senior Notes may be transferred to a person that takes delivery in the form of
an interest in the Reg S Global Senior Notes, provided, in each case, that the
certification requirements described below are complied with. The aggregate
principal amount of the Reg S Global Senior Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depository or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
Each Global Senior Note shall represent such of the outstanding Senior
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Senior Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Senior Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests. Any
endorsement of a Global Senior Note to reflect the amount of any increase or
decrease in the amount of outstanding Senior Notes represented thereby shall be
made by the Trustee or the Senior Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Reg S Global Senior Notes that are held by Participants through
Euroclear or Cedel. The Trustee shall have no obligation to notify Holders of
any such procedures or to monitor or enforce compliance with the same.
Except as set forth in Section 2.6 hereof, the Global Senior Notes may
be transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
Global Senior Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver the Global Senior Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Senior Note Custodian.
Participants shall have no rights either under this Indenture with
respect to any Global Senior Note held on their behalf by the Depository or by
the Senior Note Custodian as custodian for the Depository or under such Global
Senior Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Senior Note for all purposes whatsoever under the Indenture. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Participants, the operation of
22
22
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in any Global Senior Note.
(d) Certificated Senior Notes. Senior Notes issued in certificated form
shall be substantially in the form of Exhibit A attached hereto (but without
including the text referred to in footnotes 1 and 3 thereto).
(e) Provisions Applicable to Forms of Notes. The Senior Notes may also
have such additional provisions, omissions, variations or substitutions as are
not inconsistent with the provisions of this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with this Indenture,
any applicable law or with any rules made pursuant thereto or with the rules of
any securities exchange or governmental agency or as may be determined
consistently herewith by the Officers of the Company executing such Senior
Notes, as conclusively evidenced by their execution of such Senior Notes. All
Senior Notes will be otherwise substantially identical except as provided
herein.
Subject to the provisions of this Article 2, a Holder of a Global
Senior Note may grant proxies and otherwise authorize any Person to take any
action that a Holder is entitled to take under this Indenture or the Senior
Notes.
The Senior Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.2 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Senior Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Senior Notes shall be
substantially as set forth in Exhibit A hereto.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. An authenticating agent may authenticate
Senior Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
23
23
The Trustee shall authenticate Senior Notes for an original issue in
the aggregate principal amount not to exceed $200,000,000 upon a written order
of the Company in the form of an Officer's Certificate and an Opinion of Counsel
in a form reasonably acceptable to the Trustee. The Officer's Certificate shall
specify the amount of Senior Notes to be authenticated and the date on which
they are to be authenticated.
Upon receipt by the Trustee of an Officers' Certificate from the
Company stating that a Registration Statement covering the Series A Senior Notes
has become effective, together with a written order of the Company in the form
of an Officers' Certificate requesting the authentication of the Exchange Senior
Notes and an Opinion of Counsel relating to the Exchange Senior Notes, the
Trustee shall authenticate the Exchange Senior Notes in like principal amount of
Series A Senior Notes delivered for cancellation, in an amount not to exceed
$200,000,000. Notwithstanding anything to the contrary contained herein, the
aggregate principal amount of Series A Senior Notes, together with the aggregate
principal amount of Exchange Senior Notes shall not exceed $200,000,000 at any
time.
SECTION 2.3 REGISTRAR AND PAYING AGENT
The Company shall maintain (i) an office or agency where Senior Notes
may be presented for registration of transfer or for exchange ("Registrar") and
(ii) an office or agency where Senior Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Senior Notes and of
their transfer and exchange. The Company may appoint one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Depository Trust Company ("DTC") to
act as Depository with respect to the Global Senior Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Senior Note Custodian with respect to the Global
Senior Notes.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Senior
Notes, and shall notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money
24
24
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Senior Notes.
SECTION 2.5 HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Senior Notes, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Senior Notes. The transfer and
exchange of beneficial interests in Global Senior Notes shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Senior Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same Global
Senior Note in accordance with the transfer restrictions set forth in the legend
in subsection (g) of this Section 2.6. Transfers of beneficial interests in the
Global Senior Notes to Persons required to take delivery thereof in the form of
an interest in another Global Senior Note shall be permitted as follows:
(i) U.S. Global Senior Note to Reg S Global Senior Note. If, at
any time, an owner of a beneficial interest in a U.S. Global
Senior Note deposited with the Depository (or the Senior Note
Custodian) wishes to transfer its beneficial interest in such U.S.
Global Senior Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a Reg S Global
Senior Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Reg S Global Senior Note as
provided in this Section 2.6(a)(i). Upon receipt by the Trustee of
(1) instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to credit or
cause to be credited a beneficial interest in the Reg S Global
Senior Note in an amount equal to the beneficial interest in the
U.S. Global Senior Note to be exchanged, (2) a written order given
in accordance with the Applicable Procedures
25
25
containing information regarding the Participant account of the
Depository and the DTC participants for/or Euroclear or Cedel
account to be credited with such increase, (3) a certificate in
the form of Exhibit B-1 hereto given by the owner of such
beneficial interest stating that the transfer of such interest has
been made in compliance with the transfer restrictions applicable
to the Global Senior Notes and pursuant to and in accordance with
Rule 903 or Rule 904 of Regulation S, and (4) if requested by the
Company or the Trustee, the delivery of an opinion of counsel, a
certificate in the form of Exhibit B-1 hereto and/or other
information satisfactory to them, then the Trustee, as Registrar,
shall instruct the Depository to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable U.S.
Global Senior Note and to increase or cause to be increased the
aggregate principal amount at maturity of the applicable Reg S
Global Senior Note by the principal amount at maturity of the
beneficial interest in the U.S. Global Senior Note to be exchanged
or transferred, to credit or cause to be credited to the account
of the Person specified in such instructions, a beneficial
interest in the Reg S Global Senior Note equal to the reduction in
the aggregate principal amount at maturity of the U.S. Global
Senior Note, and to debit, or cause to be debited, from the
account of the Person making such exchange or transfer the
beneficial interest in the U.S. Global Senior Note that is being
exchanged or transferred.
(ii) Reg S Global Senior Note to U.S. Global Senior Note. If, at
any time, prior to the expiration of the Distribution Compliance
Period, an owner of a beneficial interest in a Reg S Global Senior
Note deposited with the Depository or with the Senior Note
Custodian wishes to transfer its beneficial interest in such Reg S
Global Senior Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a U.S. Global
Senior Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a U.S. Global Senior Note as
provided in this Section 2.6(a)(ii). Upon receipt by the Trustee
of (1) instructions from the DTC participants for/or Euroclear or
Cedel, if applicable, and the Depository, directing the Trustee,
as Registrar, to credit or cause to be credited a beneficial
interest in the U.S. Global Senior Note equal to the beneficial
interest in the Reg S Global Senior Note to be exchanged, such
instructions to contain information regarding the Participant
account with the Depository to be credited with such increase, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the
Depository and (3) a certificate in the form of Exhibit B-2
attached hereto given by the owner of such beneficial interest
stating that if the transfer is pursuant to Rule 144A, that the
Person transferring such interest in a Reg S Global Senior Note
reasonably believes that the Person acquiring such interest in a
U.S. Global Senior Note is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A
and any applicable
26
26
blue sky or securities laws of any state of the United States in
accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction, then the
Trustee, as Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount at maturity of
such Reg S Global Senior Note and to increase or cause to be
increased the aggregate principal amount at maturity of the
applicable U.S. Global Senior Note by the principal amount at
maturity of the beneficial interest in the Reg S Global Senior
Note to be exchanged or transferred, and the Trustee, as
Registrar, shall instruct the Depository, concurrently with such
redemption, to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in
the applicable U.S. Global Senior Note equal to the reduction in
the aggregate principal amount at maturity of such Reg S Global
Senior Note and to debit or cause to be debited from the account
of the Person making such transfer the beneficial interest in the
Reg S Global Senior Note that is being exchanged or transferred.
(iii) Restricted Global Senior Notes to Institutional Accredited
Investor. If, at any time, an owner of a beneficial interest in a
Restricted Global Senior Note deposited with the Depository (or
the Senior Note Custodian) wishes to transfer its beneficial
interest in such Restricted Global Senior Note to a Person who is
an Institutional Accredited Investor, such owner shall, subject to
the Applicable Procedures and the other provisions of this Section
2.6, exchange or cause the exchange of such interest for a
Restricted Certificated Senior Note in like aggregate principal
amount as provided in this Section 2.6(a)(iii). Upon receipt by
the Trustee of (1) instructions given in accordance with the
Applicable Procedures from a Participant directing the Trustee to
exchange a beneficial interest in the Restricted Global Senior
Note for a Restricted Certificated Senior Note in like aggregate
principal amount, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the name in
which such Certificated Senior Note shall be registered, and (3) a
certificate in the form of Exhibit C hereto given by the proposed
transferee, together, and, if the Company should so request, an
Opinion of Counsel provided by the transferor or the transferee (a
copy of which the Transferor attaches to such certificate), in
form reasonably acceptable to the Company and to the Registrar, to
the effect that such transfer is in compliance with the Securities
Act, then the Trustee, as Registrar, shall authenticate a
Certificated Senior Note as registered in the name of the Person
specified in such instructions, in an aggregate principal amount
equal to the amount to be debited, and to debit, or cause to be
debited, from the account of the Person making such exchange or
transfer the beneficial interest in the Restricted Global Senior
Note that is being exchanged or transferred.
(b) Transfer and Exchange of Certificated Senior Notes. When
Certificated Senior Notes are presented by a Holder to the Registrar with a
request to register the
27
27
transfer of the Certificated Senior Notes or to exchange such Certificated
Senior Notes for an equal principal amount of Certificated Senior Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested only if the Certificated Senior Notes are presented or
surrendered for registration of transfer or exchange, are endorsed and contain a
signature guarantee or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney
and contains a signature guarantee, duly authorized in writing and the Registrar
received the following documentation (all of which may be submitted by
facsimile):
(i) in the case of Certificated Senior Notes that are Transfer
Restricted Senior Notes, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Global Note is being delivered
to the Registrar by a Holder for registration in the name
of such Holder, without transfer, or such Transfer
Restricted Global Note is being transferred to the Company,
a certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto); or
(B) if such Transfer Restricted Global Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or in an offshore transaction pursuant to
and in compliance with Rule 904 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto);
or
(C) if such Transfer Restricted Global 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
subparagraph (B) above, a certification to that effect from
such Holder (in substantially the form of Exhibit B-3
hereto), a certification substantially in the form of
Exhibit C hereto, and, if requested by the Company, an
Opinion of Counsel acceptable to the Company that such
transfer is in compliance with the Securities Act; or
(D) if such Transfer Restricted Global Note is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto) and an
Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company and to the Registrar
to the effect that such transfer is in compliance with the
Securities Act.
28
28
(c) Transfer of a Beneficial Interest in a U.S. Global Senior Note or
Reg S Global Senior Note for a Certificated Senior Note.
(i) Any Person having a beneficial interest in a U.S. Global
Senior Note or Reg S Global Senior Note may upon request, subject
to the Applicable Procedures, exchange such beneficial interest
for a Certificated Senior Note. Upon receipt by the Trustee of
written instructions or such other form of written instructions as
is customary for the Depository (or Euroclear or Cedel, if
applicable), from the Depository or its nominee on behalf of any
Person having a beneficial interest in a U.S. Global Senior Note
or Reg S Global Senior Note, and, in the case of a Transfer
Restricted Global Note, the following additional information and
documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial
owner, a certification to that effect from such Person (in
substantially the form of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or in an offshore
transaction pursuant to and in compliance with Rule 904
under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B-4 hereto);
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements of
the Securities Act, a certification to that effect from
such Holder (in substantially the form of Exhibit B-4
hereto) and a certification from the applicable transferee
(in substantially the form of Exhibit C hereto) and, if
requested by the Company, an Opinion of Counsel acceptable
to the Company that such transfer is in compliance with the
Securities Act; or
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit B-4 hereto) and an Opinion of Counsel from the
transferee or the transferor reasonably acceptable to the
Company and to the
29
29
Registrar to the effect that such transfer is in compliance
with the Securities Act, in which case the Trustee or the
Senior Note Custodian, at the direction of the Trustee,
shall, in accordance with the standing instructions and
procedures existing between the Depository and the Senior
Note Custodian, cause the aggregate principal amount of
U.S. Global Senior Notes or Reg S Global Senior Notes, as
applicable, to be reduced accordingly and, following such
reduction, the Company shall execute and, the Trustee shall
authenticate and deliver to the transferee a Certificated
Senior Note in the appropriate principal amount.
(ii) Certificated Senior Notes issued in exchange for a
beneficial interest in a U.S. Global Senior Note or Reg S Global
Senior Note, as applicable, pursuant to this Section 2.6(c) shall
be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its Participants
or Indirect Participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Certificated Senior
Notes to the Persons in whose names such Senior Notes are so
registered. Following any such issuance of Certificated Senior
Notes, the Trustee, as Registrar, shall instruct the Depository to
reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable Global Senior Note to reflect the
transfer.
(d) Restrictions on Transfer and Exchange of Global Senior Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.6), a Global Senior Note may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) Authentication of Certificated Senior Notes in Absence of
Depository. If at any time:
(i) the Depository (A) notifies the Company that it is
unwilling or unable to continue as depositary for the
Global Senior Notes and the Company thereupon fails to
appoint a successor depositary within 90 days or (B) has
ceased to be a clearing agency registered under the
Exchange Act
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of
Certificated Senior Notes under this Indenture, or
(iii) there shall have occurred and be continuing a Default or an
Event
30
30
of Default with respect to the Senior Notes.
then the Company shall, execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver, Certificated Senior Notes in an aggregate principal amount equal to the
principal amount of the Global Senior Notes in exchange for such Global Senior
Notes.
(f) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Senior Note certificate evidencing Global
Senior Notes and Certificated Senior Notes (and all Senior
Notes issued in exchange therefor or substitution thereof)
shall bear a legend (the "Private Placement Legend") in
substantially the following form:
"THIS SENIOR NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS SENIOR
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SENIOR NOTE EXCEPT (A) TO
THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SENIOR NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL
31
31
AMOUNT OF SENIOR NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SENIOR NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted Global
Note (including any Transfer Restricted Global Note
represented by a Global Senior Note) pursuant to Rule 144
under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Global Note
that is a Certificated Senior Note, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Global Note for a Certificated
Senior Note that does not bear the legend set forth
in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Global Note upon
receipt of a certification from the transferring
holder substantially in the form of Exhibit B-4
hereto; and
(B) in the case of any Transfer Restricted Global Note
represented by a Global Senior Note, such Transfer
Restricted Global Note shall not be required to bear
the legend set forth in (i) above, but shall continue
to be subject to the provisions of Section 2.6(a) and
(b) hereof; provided, however, that with respect to
any request for an exchange of a Transfer Restricted
Global Note that is represented by a Global Senior
Note for a Certificated Senior Note that does not
bear the legend set forth in (i) above, which request
is made in reliance upon Rule 144, the Holder thereof
shall
32
32
certify in writing to the Registrar that such request
is being made pursuant to Rule 144 (such
certification to be substantially in the form of
Exhibit B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Global
Note (including any Transfer Restricted Global Note
represented by a Global Senior Note) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule 144A
or Rule 144 under the Securities Act) in which the Holder
or the transferee provides an Opinion of Counsel to the
Company and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion
of Counsel shall also state that the transfer restrictions
contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Global Note
that is a Certificated Senior Note, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Global Note for a Certificated
Senior Note that does not bear the legend set forth
in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Global Note; and
(B) in the case of any Transfer Restricted Global Note
represented by a Global Senior Note, such Transfer
Restricted Global Note shall not be required to bear
the legend set forth in (i) above, but shall continue
to be subject to the provisions of Section 2.6(a) and
(b) hereof.
(iv) Notwithstanding the foregoing, upon the occurrence of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof,
the Trustee shall authenticate (i) one or more Unrestricted
Global Senior Notes in aggregate principal amount equal to
the principal amount of the Restricted Beneficial Interests
validly tendered and not properly withdrawn by Persons that
certify in the letter of transmittal delivered in the
Exchange Offer that they are not (x) brokerdealers, (y)
Persons participating in the distribution of the Series B
Senior 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 Senior Notes that
do not bear the Private Placement Legend in an aggregate
principal amount equal to the principal amount of the
Restricted Certificated Senior Notes accepted for exchange
in the Exchange Offer. Concurrently with the issuance of
such Senior Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global
33
33
Senior Notes to be reduced accordingly and the Company
shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of
Certificated Senior Notes so accepted Certificated Senior
Notes in the appropriate principal amount.
Notwithstanding anything to the contrary contained herein, unless
and until there is an effective Registration Statement covering the Senior
Notes, the Company shall direct the Trustee in writing with respect to the
removal of legends.
(g) Cancellation and/or Adjustment of Global Senior Notes. At such
time as all beneficial interests in Global Senior Notes have been exchanged for
Certificated Senior Notes, redeemed, repurchased or cancelled, all Global Senior
Notes shall be cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Senior Note is exchanged for Certificated Senior Notes, redeemed, repurchased or
cancelled, the principal amount of Senior Notes represented by such Global
Senior Note shall be reduced accordingly and an endorsement shall be made on
such Global Senior Note, by the Trustee or the Senior Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(h) 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 Senior Notes and Certificated Senior Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange
or transfer pursuant to Sections 2.10, 3.6, 4.10, 4.14 and
9.5 hereto).
(iii) All Global Senior Notes and Certificated Senior Notes
issued upon any registration of transfer or exchange of
Global Senior Notes or Certificated Senior 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 Senior Notes or Certificated
Senior Notes surrendered upon such registration of transfer
or exchange.
(iv) The Registrar shall not be required: (A) to issue, to
register the transfer of or to exchange Senior Notes during
a period beginning at the opening of fifteen (15) Business
Days before the day of any selection of Senior Notes for
redemption under Section 3.2 hereof and ending at the close
of business on the day of selection, (B) to
34
34
register the transfer of or to exchange any Senior Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Senior Note being redeemed in
part, or (C) to register the transfer of or to exchange a
Senior Note between a record date and the next succeeding
interest payment date.
(v) Prior to due presentment for the registration of a transfer
of any Senior Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Senior Note
is registered as the absolute owner of such Senior Note for
the purpose of receiving payment of principal of and
interest on such Senior Notes and for all other purposes,
and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Senior Notes and
Certificated Senior Notes in accordance with the provisions
of Section 2.2 hereof.
Notwithstanding anything to the contrary contained herein,
the Trustee shall have no duty whatsoever to monitor
compliance with federal or state securities laws.
SECTION 2.7 REPLACEMENT OF SENIOR NOTES
If any mutilated Senior Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Senior Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Senior Note if the Trustee's
requirements are met. The Trustee and the Company shall require an indemnity
bond to be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Senior Note
is replaced. The Company may charge for its expenses in replacing a Senior Note.
Every replacement Senior Note is a replacement obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Senior Notes duly issued hereunder.
SECTION 2.8 OUTSTANDING SENIOR NOTES
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Senior Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.9
hereof, a Senior Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Senior Note.
35
35
If a Senior Note is replaced pursuant to Section 2.7 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Senior Notes payable on that date, then on and after that date
such Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.9 TREASURY SENIOR NOTES
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though 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 Senior Notes that a Trustee receives an
Officer's Certificate stating that such Senior Notes are so owned shall be so
disregarded.
SECTION 2.10 TEMPORARY SENIOR NOTES
Until definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes upon a written
order of the Company signed by two Officers of the Company. Temporary Senior
Notes shall be substantially in the form of definitive Senior Notes but may have
variations that the Company considers appropriate for temporary Senior Notes and
as shall be reasonably acceptable to the Trustee. without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Senior
Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 CANCELLATION
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Senior Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Senior Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Senior Notes (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
cancelled Senior Notes shall be delivered to the
36
36
Company. The Company may not issue new Senior Notes to replace Senior Notes that
it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Senior Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Senior Notes and in Section 4.1 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Senior Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13 RECORD DATE
The record date for purposes of determining the identity of Holders of
the Senior Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14 COMPUTATION OF INTEREST
Interest on the Senior Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
SECTION 2.15 CUSIP NUMBER
The Company in issuing the Senior Notes may use a "CUSIP" number, and
if it does so, the Trustee shall use the CUSIP number 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 printed in the notice or on the Senior Notes and that reliance may be
placed only on the other identification numbers printed on the Senior Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.1 NOTICES TO TRUSTEE
If the Company elects to redeem Senior Notes pursuant to the optional
37
37
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Senior Notes to
be redeemed and (iv) the redemption price.
SECTION 3.2 SELECTION OF SENIOR NOTES TO BE REDEEMED
If less than all of the Senior Notes are to be redeemed at any time,
selection of the Senior Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Senior Notes are listed or, if the Senior Notes are not so
listed, on a pro rata basis, by lot or by such method as the Trustee considers
fair and appropriate. In the event of partial redemption by lot, the particular
Senior Notes to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Senior Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Note selected for
partial redemption, the portion of the principal amount thereof to be redeemed.
Senior Notes and portions of Senior Notes selected shall be in amounts of $1,000
or integral multiples of $1,000; except that if all of the Senior Notes of a
Holder are to be redeemed, the entire outstanding amount of Senior Notes held by
such Holder, even if not an integral multiple of $1,000, shall be redeemed.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Senior Notes called for redemption also apply to portions of Senior
Notes called for redemption.
SECTION 3.3 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Senior Notes are to be redeemed at its
registered address.
The notice shall identify the Senior Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Note to be redeemed and that, after the
redemption date upon surrender of such Senior Note, a new Senior Note or Senior
Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
38
38
(e) that Senior Notes called for redemption (other than a Global Senior
Note) must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Senior Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Senior Notes and/or Section of this Indenture
pursuant to which the Senior Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (unless a shorter time is acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Senior Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE
On or prior to the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent immediately available funds sufficient to pay
the redemption price of and accrued and unpaid interest, if any, on and
Liquidated Damages, if any, on all Senior Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Senior Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Senior
Notes or the portions of Senior Notes called for redemption. If a Senior Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Senior Note was registered at the close of business on
such record date. If any Senior Note called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and
39
39
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Senior Notes and in Section 4.1 hereof.
SECTION 3.6 SENIOR NOTES REDEEMED IN PART
Upon surrender of a Senior Note (other than a Global Senior Note) that
is redeemed in part, the Company shall issue and, upon the Company's written
request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Senior Note equal in principal amount to the unredeemed portion of
the Senior Note surrendered. The records of the Registrar and the Depositary
shall reflect any partial redemption of any Global Senior Note.
SECTION 3.7 OPTIONAL REDEMPTION
(a) Except as set forth in clauses (b) and (c) of this Section 3.7, the
Senior Notes shall not be redeemable at the Company's option prior to May 15,
2002. Thereafter, the Senior Notes shall be subject to redemption for cash at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice to each Holder of Senior Notes to be redeemed at the
following redemption prices (expressed as percentages of principal amount
thereof) if redeemed during the twelve-month period beginning on May 15, 2002 of
each of the years indicated below, in each case together with any accrued and
unpaid interest and Liquidated Damages, if any, thereon to the applicable
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
YEAR PERCENTAGE
2002 105.500%
2003 102.750%
2004 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.7,
at any time on or before May 15, 2001, the Company may (but shall not have the
obligation to) redeem for cash up to 33-1/3% of the original aggregate principal
amount of the Senior Notes at a redemption price of 111% of the principal amount
thereof, in each case plus any accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date, with the net proceeds of a
Public Equity Offering; provided that at least 66-2/3% of the original aggregate
principal amount of the Senior Notes remains outstanding immediately after the
occurrence of such redemption; and provided, further, that such redemption shall
occur within 60 days of the date of the closing of such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.7 shall be made pursuant
to the provisions of Section 3.1 through 3.6 hereof.
40
40
SECTION 3.8 NO MANDATORY REDEMPTION
Except as set forth in Section 4.9 and Section 4.10, the Company shall
not be required to make any mandatory redemption, purchase or sinking fund
payments with respect to the Senior Notes prior to the Maturity Date.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF SENIOR NOTES
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Senior Notes on the dates and in the manner provided in
the Senior Notes. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement. The
Company shall promptly notify the Trustee of a Registration Default (as defined
in the Registration Rights Agreement) under the Registration Rights Agreement
and any cure thereof by delivery of an Officers' Certificate setting forth the
Liquidated Damages due for $1,000 in aggregate principal amount.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Senior Notes
to the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any (without regard to any applicable grace period) at
the same rate to the extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Senior Notes may be surrendered
for registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Senior 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 principal Corporate
Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or
41
41
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the principal Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3 hereof.
SECTION 4.3 CORPORATE EXISTENCE
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of each 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 of the Senior Notes.
SECTION 4.4 MAINTENANCE OF PROPERTIES AND INSURANCE
(a) The Company shall cause all material properties owned by or leased
by it or any of its Subsidiaries useful and necessary to the conduct of its
business or the business of any of its Subsidiaries to be improved or maintained
and kept in normal condition, repair and working order and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in its judgment may be necessary, so that the business carried
on in connection therewith may be properly conducted at all times; provided,
however, that nothing in this Section 4.4 shall prevent the Company or any of
its Subsidiaries from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or disposal
is, in the judgment of the Board of Directors or of the board of directors of
any Subsidiary of the Company concerned, or of an officer (or other agent
employed by the Company or of any of its Subsidiaries) of the Company or any of
its Subsidiaries having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Subsidiary of the
Company, and if such discontinuance or disposal is not adverse in any material
respect to the Holders.
(b) To the extent available at commercially reasonable rates, the
Company shall maintain, and shall cause its Subsidiaries, to the extent such
Subsidiaries maintain operations, to maintain, insurance with responsible
carriers against such risks and in
42
42
such amounts, and with such deductibles, retentions, self-insured amounts and
co-insurance provisions, as are customarily carried by similar businesses, of
similar size.
SECTION 4.5 COMPLIANCE WITH LAWS
The Company shall comply, and shall cause each of its respective
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions in respect of the conduct of their respective businesses and
the ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.6 REPORTS
(a) Whether or not required by the Exchange Act or the rules and
regulations of the Commission, so long as any Senior Notes are outstanding, the
Company shall furnish to all Holders of Senior Notes within 15 days after it is
or would have been required to file such with the Commission, all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-K, 10-Q or 8-K if the Company were required to
file such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual information
only, a report thereon by the independent public accountants of the Company. In
addition, whether or not required by the rules and regulations of the
Commission, the Company will file copies of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing) and will promptly make such information available to
securities analysts and prospective investors upon request.
(b) For so long as any Senior Notes remain outstanding, the Company
will furnish to all Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act during any period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act.
SECTION 4.7 TAXES
The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Senior Notes.
SECTION 4.8 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at
43
43
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.9 CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of Senior
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Senior Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Senior Notes pursuant to the procedures required by this Indenture
and described in such notice. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Senior Notes as a result of a Change of Control.
The Change of Control Offer will remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Change of Control Offer
Period"). No later than five Business Days after the termination of the Offer
Period (the "Change of Control Purchase Date"), the Company shall purchase all
Senior Notes validly tendered and not properly withdrawn pursuant to the Change
of Control Offer. Payment for any Senior Notes so purchased shall be made in the
same manner as interest payments are made on the Senior Notes.
If the Change of Control Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Liquidated Damages, if any, shall be paid to the Person in
whose name a Senior Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who tender Senior
Notes pursuant to the Change of Control Offer.
Upon the commencement of a Change of Control Offer, the Company
shall send, by first class mail, a notice to each of the Holders, with a copy of
each such notice to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Senior Notes pursuant to
the Change of Control Offer. The Change of Control Offer shall be made to all
Holders. The notice, which shall govern the terms of the Change of Control
Offer, shall state:
(a) that the Change of Control Offer is being made pursuant to
this
44
44
covenant and the length of time the Change of Control Offer shall
remain open;
(b) the purchase price and the Change of Control Purchase Date;
(c) that any Senior Note which is not validly tendered or are
otherwise not accepted for payment shall continue to accrete or accrue
interest;
(d) that, unless the Company defaults in making such payment, any
Senior Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrete or accrue interest after the Change of
Control Purchase Date;
(e) that Holders electing to have a Senior Note purchased pursuant
to any Change of Control Offer shall be required to surrender the
Senior Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Senior Note completed, or transfer by
book-entry transfer, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice at
least three days before the Change of Control Purchase Date; and
(f) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Change of Control Offer
Period, a telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Senior Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Senior Note purchased.
On the Change of Control Purchase Date, the Company shall, to the
extent lawful, (1) accept for payment all Senior Notes or portions thereof
validly tendered and not properly withdrawn pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Senior Notes or portions thereof so validly
tendered and not properly withdrawn and (3) deliver or cause to be delivered to
the Trustee the Senior Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Senior Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
Senior Notes so validly tendered and not properly withdrawn the Change of
Control Payment for such Senior Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Senior Note equal in principal amount to any unpurchased portion of the
Senior Notes surrendered, if any; provided that each such new Senior Note shall
be in a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on the Change
of Control Purchase Date.
SECTION 4.10 ASSET SALES AND EXCLUDED ASSET
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the
45
45
fair market value of the assets or Equity Interests sold or otherwise disposed
of and, in the case of a lease of assets, a lease providing for rent and other
conditions which are no less favorable to the Company (or the Restricted
Subsidiary, as the case may be) in any material respect than the then prevailing
market conditions (evidenced in each case by a resolution of the Board of
Directors of such entity set forth in an Officers' Certificate delivered to the
Trustee upon which the Trustee may conclusively rely) and (ii) at least 75%
(100% in the case of lease payments) of the consideration therefor received by
the Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided that the amount of any liabilities (as shown on the most
recent balance sheet of the Company or such Restricted Subsidiary) of the
Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Senior Notes) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability shall be deemed to be cash for the purposes of clause (ii).
The Company will cause its Restricted Subsidiaries to transfer to the
Company all consideration received by the Restricted Subsidiaries from Asset
Sales and Excluded Asset Sales as promptly as practicable, except in the case of
Asset Sales to the extent the proceeds thereof are applied as set forth in
clause (a)(iii) or (b) of the immediately following paragraph.
Within 364 days after the receipt of any Net Proceeds from an
Asset Sale, the Company (or the Restricted Subsidiary, as applicable) may (a)
apply such Net Proceeds (i) to make an investment in, to make a capital
expenditure relating to, or to acquire other tangible assets in, the commercial
group health benefit business in New York, New Jersey, or Connecticut, (ii) to
the reduction of Indebtedness under the Term Loan Agreement or the permanent
reduction of any other Pari Passu Indebtedness of the Company or the permanent
reduction of any long-term Indebtedness of a Restricted Subsidiary, or (iii) to
make capital contributions to regulated Restricted Subsidiaries covering
commercial lives operating in New York, New Jersey or Connecticut which
contributions are required by law or requested in writing to be made by the
appropriate state regulatory authorities or (b) with respect to Net Proceeds
received from an Asset Sale by a regulated Restricted Subsidiary which are not
permitted by appropriate state regulatory authorities to be distributed or
otherwise transferred, retain such Net Proceeds as capital of such regulated
Restricted Subsidiary. Any Net Proceeds from Asset Sales that are not applied or
invested or committed to be applied or invested, as provided in the preceding
sentence of this paragraph will be deemed to constitute "Excess Proceeds". On
the earlier of (i) the 365th day after an Asset Sale or (ii) such date as the
Board of the Company or the Restricted Subsidiary determines not to apply the
Net Proceeds relating to such Asset Sale in the manner set forth above, if the
aggregate amount of Excess Proceeds exceeds $20 million, the Company will be
required to make an offer to all Holders of Senior Notes (an "Asset Sale Offer")
to purchase the maximum principal amount of Senior Notes that may be purchased
out of the Excess Proceeds, at an offer price in cash in an amount equal to 100%
of the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase, in accordance with the
procedures set forth in the
46
46
Indenture. To the extent that the aggregate amount of Senior Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
aggregate principal amount of Senior Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes
to be purchased on a pro rata basis, by lot or by such other method as the
Trustee deems fair and appropriate. Upon completion of such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
The Asset Sale Offer will remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Asset Sale Offer Period"). No
later than five Business Days after the termination of the Asset Sale Offer
Period (the "Asset Sale Purchase Date"), the Company will purchase the principal
amount of Senior Notes required to be purchased pursuant to this covenant (the
"Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been
validly tendered and not properly withdrawn, all Senior Notes validly tendered
and not properly withdrawn in response to the Asset Sale Offer. Payment for any
Senior Notes so purchased shall be made in the same manner as interest payments
are made on the Senior Notes.
If the Asset Sale Purchase Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest and Liquidated Damages, if any, will be paid to the Person in whose
name a Senior Note is registered at the close of business on such record date,
and no additional interest shall be payable to Holders who tender Senior Notes
pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Senior Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
covenant and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer Amount, the purchase price and the Asset
Sale Purchase Date;
(c) that any Senior Note which are not validly tendered or are not
otherwise accepted for payment shall continue to accrete or accrue
interest;
(d) that, unless the Company defaults in making such payment, any
Senior Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrete or accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to have a Senior Note purchased pursuant
to any
47
47
Asset Sale Offer shall be required to surrender the Senior Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Senior Note completed, or transfer by book-entry transfer, to
the Company, a depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice at least three days before
the Asset Sale Purchase Date;
(f) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Senior Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Senior Note purchased;
(g) that, if the aggregate principal amount of Senior Notes
surrendered by Holders exceeds the Asset Sale Offer Amount, the Company
shall select the Senior Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that
only Senior Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(h) that Holders whose Senior Notes were purchased only in part
shall be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior Notes surrendered (or transferred by
book-entry transfer).
On or before the Asset Sale Purchase Date, the Company shall, to
the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Sale Offer Amount of Senior Notes or portions thereof
validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or
if less than the Asset Sale Offer Amount has been validly tendered and not
properly withdrawn, all Senior Notes validly tendered and not properly
withdrawn, and shall deliver to the Trustee an Officers' Certificate stating
that such Senior Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this covenant. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Asset Sale Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Senior Notes validly tendered and not properly withdrawn by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Senior Note, and the Trustee, upon delivery of an Officers' Certificate from the
Company, shall authenticate and mail or deliver such new Senior Note to such
Holder, in a principal amount equal to any unpurchased portion of the Senior
Note surrendered. Any Senior Note not so accepted will be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer on the Asset Sale Purchase Date.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of Senior
Notes pursuant to any Asset Sale Offer.
The Company agrees that (i) a sale of the stock or assets of FPA
Medical
48
48
Management, Inc. shall be for cash only, (ii) at least 50% of the consideration
received by the Company or a Restricted Subsidiary from the sale of stock or
assets of Oxford Specialty and Oxford Health Plans (NH), Inc. shall be cash or
Marketable Securities, (iii) there shall be no restrictions on the consideration
received by the Company and its Restricted Subsidiaries from the sale of the
stock or assets of or Indebtedness issued by a Minority Investment or the New
York, New Jersey, Florida or Pennsylvania Medicaid business, Oxford Health Plans
(IL), Inc. or Oxford Health Plans (FL), Inc. and (iv) the consideration received
by the Company and its Restricted Subsidiaries from all other Excluded Asset
Sales shall be cash. The Company and its Restricted Subsidiaries will sell all
such Marketable Securities for cash no later than the earlier of 60 days from
receipt and the termination or expiration of any governmental limitation of such
sale.
SECTION 4.11 RESTRICTED PAYMENTS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any payment or distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company) (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or dividends or distributions payable to the Company or
any Wholly Owned Subsidiary of the Company or dividends payable in preferred
stock in accordance with the TPG Investment Agreement as in effect on the
closing date); or make any payment (other than in Equity Interests (other than
Disqualified Stock)) in connection with any settlement or resolution of any
Non-Insurance Litigation involving the Company or any of its Restricted
Subsidiaries (excluding Qualified Insurance Payments); (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company or any
Restricted Subsidiary of the Company (other than any such Equity Interests owned
by the Company or any Restricted Subsidiary of the Company); (iii) prepay,
purchase, redeem, defease or otherwise acquire or retire for value prior to its
stated maturity any Indebtedness that is subordinated to the Senior Notes; or
(iv) make any Restricted Investment (all such payments and other actions set
forth in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) (i) at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four quarter period, the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available
immediately preceding the date on which such Restricted Payment is made
would have been at least 2.25 to 1; and (ii) such Restricted Payment
when taken together with all other Restricted Payments relating to such
period shall not exceed 50% of Consolidated Net Income of the Company
for the most recently ended four fiscal quarters for which internal
49
49
financial statements are available immediately preceding the date on
which such Restricted Payment is made.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the making of any Restricted Payment (other than the payment of
a dividend) in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Company) of, or from
substantially concurrent additional capital contributions in respect of, Equity
Interests of the Company (other than Disqualified Stock); (iii) the redemption,
repurchase, retirement or other acquisition of any Equity Interests of the
Company in exchange for, or out of the proceeds of, the substantially concurrent
sale (other than to a Subsidiary of the Company) of, or from substantially
concurrent additional capital contributions in respect of, other Equity
Interests of the Company (other than any Disqualified Stock); (iv) the
defeasance, redemption or repurchase of subordinated Indebtedness with the net
cash proceeds from (X) an incurrence of Permitted Refinancing Indebtedness or
(Y) the substantially concurrent sale (other than to a Subsidiary of the
Company) of, or from substantially concurrent additional capital contributions
in respect of, Equity Interests of the Company (other than Disqualified Stock);
(v) an exchange of Disqualified Stock for Disqualified Stock that constitutes
Permitted Refinancing Indebtedness; and (vi) any dividend or other distribution
made by any Wholly Owned Subsidiary of the Company to another Wholly Owned
Subsidiary of the Company or to the Company; provided, however, that in the case
of any transaction described in clauses (ii) through (vi) no Default or Event of
Default will have occurred and be continuing immediately after such transaction.
The Board of Directors may designate any Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default or Event
of Default. For purposes of making such determination, all outstanding
Investments after the Issue Date by the Company and its Restricted Subsidiaries
(except to the extent repaid in cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time of such designation and will reduce
the amount available for Restricted Payments under the first paragraph of this
covenant. Such designation will only be permitted if such Restricted Payment
would be permitted at such time and if such Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) will be
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee upon which the
Trustee may conclusively rely) on the date of the Restricted Payment of the
asset(s) proposed to be transferred by the Company or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later
than the date of making any Restricted Payment, the Company will deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this covenant were computed, which calculations may be based upon the Company's
latest available financial statements.
50
50
SECTION 4.12 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness (including
Acquired Indebtedness) or issue shares of Disqualified Stock if: (i) the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period; and (ii) no Default or Event of Default will have occurred
and be continuing or would occur as a consequence thereof.
The foregoing provisions will not apply to:
(i) the incurrence by the Company of Indebtedness under the
Term Loan Agreement (and any guarantees by the Company's Subsidiaries
with respect thereto) provided that the aggregate principal amount of
all Indebtedness outstanding under the Term Loan Agreement does not, at
any time, exceed $150 million;
(ii) the incurrence by the Company of Indebtedness represented
by the Senior Notes;
(iii) all Existing Indebtedness;
(iv) the incurrence by the Company or its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
Purchase Money Obligations or similar financing transactions relating
to its properties, assets and rights acquired after the Issue Date,
provided that the aggregate principal amount of such Indebtedness under
this clause does not exceed 100% of the cost of such properties, assets
and rights;
(v) the incurrence by the Company or any Restricted Subsidiary
of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace,
defease or refund, Indebtedness of such entity that was permitted by
the Indenture to be incurred;
(vi) the incurrence by the Company or any Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any Wholly Owned Subsidiaries or between or among any Wholly Owned
Subsidiaries;
51
51
provided, however, that (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than a Wholly Owned Subsidiary and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Subsidiary will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(vii) the incurrence, assumption or creation of Hedging
Obligations of the Company or a Restricted Subsidiary pursuant to
interest rate protection obligations, but only to the extent that the
stated aggregate notional amounts of such obligations do not exceed
100% of the aggregate principal amount of the Indebtedness covered by
such interest rate protection obligations;
(viii) the incurrence by the Company or any Restricted
Subsidiaries of Indebtedness constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect
of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement-type obligations regarding
workers' compensation claims;
(ix) the incurrence by the Company or any Restricted
Subsidiaries of obligations in respect of performance and surety bonds
and completion guarantees provided by the Company or any Restricted
Subsidiaries in the ordinary course of business;
(x) the incurrence or assumption by the Company or any
Restricted Subsidiaries of Indebtedness arising from agreements of the
Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case,
incurred or assumed by the Company or a Restricted Subsidiary in
connection with the disposition of any business, assets or a
Subsidiary, other than Guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition or otherwise;
provided that the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually
received by the Company and its Restricted Subsidiaries in connection
with such disposition; and
(xi) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness in an aggregate principal amount of up to
$50 million which shall be in addition to amounts which may be incurred
pursuant to clauses (i) through (x) above.
Notwithstanding any other provision of this covenant, a guarantee
of Indebtedness permitted by the terms of the Indenture at the time such
Indebtedness was incurred will not constitute a separate incurrence of
Indebtedness.
In the event that Indebtedness falls within more than one category
of
52
52
permitted Indebtedness under the Indenture, the Company will determine the
applicable category and such Indebtedness will only be counted once. If
Indebtedness is issued at less than the principal amount thereof, the amount of
such Indebtedness for purposes of the above limitations shall equal the amount
of the liability as determined in accordance with GAAP. Accrual of 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
for purposes of this covenant.
SECTION 4.13 SALE AND LEASEBACK TRANSACTIONS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided,
however, that the Company or any of its Restricted Subsidiaries may enter into a
sale and leaseback transaction if (i) the Company could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.12 hereof and (b) incurred a Lien to
secure such Indebtedness pursuant to Section 4.14 hereof, (ii) the net cash
proceeds of such sale and leaseback transaction are at least equal to the fair
market value (as determined in good faith by the Board of Directors and set
forth in an Officers' Certificate delivered to the Trustee upon which the
Trustee can conclusively rely) of the property that is the subject of such sale
and leaseback transaction and (iii) the transfer of assets in such sale and
leaseback transaction is permitted by, and the proceeds of such transaction are
applied in compliance with, Section 4.10 hereof.
SECTION 4.14 LIENS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien securing Indebtedness of any kind (other than
Permitted Liens) upon any of its property or assets, now owned or hereafter
acquired, or upon any income or profits therefrom, or assign or convey any right
to receive income therefrom, unless contemporaneously therewith effective
provision is made to secure the Indebtedness under this Indenture and the Senior
Notes on an equal and ratable basis with (or prior to in the case of Liens with
respect to obligations subordinated to the Senior Notes) the Indebtedness so
secured for so long as such Indebtedness is secured by such Lien.
SECTION 4.15 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) (a) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries or (iii) transfer any of its properties or
53
53
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of the Indenture, (b) the Term Loan
Agreement as in effect as of the date of the Indenture, 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 than those contained in the Term Loan
Agreement as in effect on the date of the Indenture, (c) the Indenture and the
Senior Notes, (d) any instrument governing Acquired Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such Acquired
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, (e) Purchase Money Obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (f) customary non-assignment provisions in licenses, leases and
agreements relating to intellectual property entered into in the ordinary course
of business and consistent with past practices, (g) agreements relating to the
financing of the acquisition of real or tangible personal property acquired
after the date of the Indenture, provided that such encumbrance or restriction
relates only to the property which is acquired and in the case of any
encumbrance or restriction that constitutes a Lien, such Lien constitutes a
Purchase Money Lien, (h) any law or any governmental regulation or order or
pursuant to any agreement or understanding with any regulatory body or agency;
provided that, if such order would prevent the Company from making a payment
under the Indenture, the Company has used its reasonable efforts to have any
such order diminished or removed by any regulator authorized to do so and to
obtain any exemptive orders from the relevant regulator with respect to such
encumbrance or restriction to the extent such exemptive orders are reasonably
practicable under applicable laws and regulations, or (i) contracts for the sale
of assets, including, without limitation, customary restrictions with respect to
a Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
SECTION 4.16 TRANSACTIONS WITH AFFILIATES
The Company will not, and will not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make any contract, agreement, understanding, loan, advance or guarantee with,
or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is in the ordinary course
of business, (ii) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case may be, and
are at least as favorable as the terms which could be obtained by the Company or
such Restricted Subsidiary, as the case may be, in a comparable transaction made
on an arm's-length basis between unaffiliated parties and (iii) the Company
delivers to the
54
54
Trustee (a) with respect to any Affiliate Transaction entered into after the
date of the Indenture involving aggregate consideration in excess of $1 million,
a resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $5 million,
an opinion as to the fairness to the Company or such Restricted Subsidiary of
such Affiliate Transaction from a financial point of view issued by an
investment banking firm or appraisal firm of national standing; provided that
the following will not be deemed to be Affiliate Transactions; (u) the
transactions contemplated by the TPG Investment Agreement and the TPG Securities
or any exchange of Disqualified Stock under paragraph (v) of Section 4.12 hereof
or amendment to the Certificates of Designations in lieu of any such exchange;
(v) reasonable fees and compensation paid to, and indemnity provided on behalf
of, officers and directors of the Company or any Restricted Subsidiary as
determined in good faith by the appropriate Board of Directors or senior
management; (w) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business (including, without limitation, pursuant to joint
venture agreements) and otherwise in compliance with the terms of the Indenture
and which comply with the terms of clause (ii) above; (x) transactions
constituting Permitted Investments; (y) any employment agreement entered into by
the Company or any of its Restricted Subsidiaries in the ordinary course of
business and consistent with the past practice of the Company or such Restricted
Subsidiary (including, without limitation, any such employment agreements
entered into prior to the date of the Indenture) and (z) transactions between or
among the Company and/or its Restricted Subsidiaries.
SECTION 4.17 LINE OF BUSINESS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than (i) the Healthcare Service
Business and such business activities incidental or related thereto and (ii)
acting as a holding company for companies engaged in the businesses specified in
(i) above.
SECTION 4.18 LIMITATION AS TO UNRESTRICTED SUBSIDIARIES
The Company will not permit any Unrestricted Subsidiary to create,
assume, incur, guarantee or otherwise become liable in respect of any
Indebtedness except Non-Recourse Debt; provided, however, if any such
Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to
constitute an incurrence of Indebtedness by the Company or a Restricted
Subsidiary subject to Section 4.12 hereof. The Company and its Restricted
Subsidiaries will not designate, create or purchase any Unrestricted Subsidiary,
unless the Board of Directors of the Company shall have made a determination (as
set forth in the resolution approving such designation, creation or purchase)
that the designation, creation and operation of the Unrestricted Subsidiary is
not reasonably expected to materially and adversely affect the financial
condition, business, or operations of the Company and its Restricted
Subsidiaries taken together as a whole (which resolution shall be conclusive
evidence of compliance with this
55
55
provision).
SECTION 4.19 LIMITATION ON SALE OF STOCK OR ASSETS OF PRINCIPAL SUBSIDIARIES
Except for a transaction subject to the provisions of Section 5.1
hereof, or a transaction described under the definition of "Excluded Asset
Sales" in Section 1.1 hereof, the Company will not, and will not permit any
Subsidiary to, directly or indirectly, sell, transfer, convey or otherwise
dispose of (other than to the Company or a Wholly Owned Restricted Subsidiary of
the Company) any Capital Stock of a Principal Subsidiary or any securities
convertible into or warrants, rights or options to subscribe for Capital Stock
of any Principal Subsidiary, and the Company will not permit any Principal
Subsidiary to issue, sell, transfer, convey or otherwise dispose of (other than
to the Company or a Wholly Owned Restricted Subsidiary of the Company) any of
its Capital Stock or securities convertible into or rights, warrants or options
to subscribe for its Capital Stock or sell, transfer, convey or otherwise
dispose of any of its group contracts or subscriber contracts relating to
commercial group health benefit plans.
SECTION 4.20 PAYMENTS FOR CONSENTS
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Senior Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Indenture or the Senior Notes unless such consideration is offered to be
paid or is paid to all Holders of the Senior Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 4.21 LIMITATIONS ON ISSUANCE OF GUARANTEES
The Company will not permit any Restricted Subsidiary, directly or
indirectly, to guarantee or secure any Pari Passu Indebtedness (other than the
Term Loan Agreement) or any Subordinated Indebtedness unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to the
Trustee providing for the guarantee of the payment of the Senior Notes by such
Restricted Subsidiary; provided that, in the case of any Subordinated
Indebtedness, the guarantee of the Senior Notes is senior to any guarantee of
such Subordinated Indebtedness. Notwithstanding the foregoing, any such
guarantee by a Restricted Subsidiary of the Senior Notes shall provide by its
terms that it shall be automatically and unconditionally released and discharged
upon either (i) the release or discharge of such guarantee of payment of Pari
Passu Indebtedness or any Subordinated Indebtedness, as applicable, or (ii) any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
all of the Company's stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale, exchange or transfer is made in compliance
with the applicable provisions of the Indenture, including, without limitation,
the provisions of Section 5.1 hereof.
56
56
SECTION 4.22 COMPLIANCE CERTIFICATE
(a) the Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company 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
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company 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 or interest, if any, on the Senior Notes
is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.6(a) hereof shall be accompanied by a
written statement of the independent public accountants of the Company (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 that would lead them to believe that the Company has
violated any provisions of Article Four or Article Five hereof (except that,
such written statement need not address the Company's compliance with the
provisions of Sections 4.02 or 4.14 hereof) or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) the Company shall, so long as any of the Senior 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 is taking or proposes to
take with respect thereto.
ARTICLE 5
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into (whether or not the Company is
the surviving corporation), or directly and/or indirectly through its Restricted
Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its
57
57
properties or assets determined on a consolidated basis for the Company and its
Restricted Subsidiaries taken as a whole in one or more related transactions, to
another corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of one of the states
of the United States or the District of Columbia; (ii) the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Senior Notes and the Indenture pursuant to
a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction no Default or Event of Default shall occur
and be continuing or result as a consequence thereof; (iv) except in the case of
a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company, the Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (A) shall have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) shall, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 4.12 hereof; (v) if any of the
property or assets of the Company would thereupon become subject to any Lien,
the outstanding Senior Notes shall be secured equally and ratably with (or prior
to) the obligation or liability secured by such Lien, unless the Company could
create such Lien without equally and ratably securing the Senior Notes; and (vi)
the Company delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel addressed to the Trustee with respect to the foregoing matters.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to "the Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor of the Company shall not be relieved
from the obligation to pay the principal, premium, if any, and interest and
Liquidated Damages, if any, on the Senior Notes except in the case of a sale of
all of the Company's assets that meets the requirements of Section 5.1 hereof.
58
58
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
An "Event of Default" occurs if:
(A) the Company defaults in the payment of interest on, or
Liquidated Damages with respect to, any Senior Note when the same
becomes due and payable and the Default continues for a period of 30
days;
(B) the Company defaults in the payment of the principal of or
premium, if any, on any Senior Note when the same becomes due and
payable at maturity, upon redemption or otherwise;
(C) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Sections 4.9, 4.10, 4.11 or 5.1 hereof;
(D) the Company fails to comply with any of its other agreements
or covenants in, or provisions of, the Senior Notes or this Indenture
and the Default continues for a period of 30 days after the notice
thereof to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in principal amount of the outstanding
Senior Notes;
(E) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), other than
Indebtedness owed to the Company or a Wholly Owned Subsidiary, whether
such Indebtedness or guarantee exists on the date of this Indenture or
shall be created thereafter, which default (a) is caused by a failure
to pay when due (after giving effect to any grace period related
thereto) any principal of or premium, if any, or interest on such
Indebtedness (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 $10 million or more;
(F) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company or any of its Restricted Subsidiaries and such judgment or
judgments remain undischarged or unpaid or stayed for a period (during
which execution shall not be effectively stayed) of 60 days, provided
that the aggregate of all such
59
59
undischarged and unpaid judgments exceeds $10.0 million (net of any
amounts with respect to which a reputable and creditworthy insurance
company has acknowledged liability in writing);
(G) the Company or any of its Significant Subsidiaries or group
of Restricted Subsidiaries that, together taken (as of the latest
audited consolidated financial statement for the Company and its
Subsidiaries), would constitute a Significant Subsidiary (a "Group of
Subsidiaries"), pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it
in an involuntary case,
(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
(H) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Significant
Subsidiary or Group of Subsidiaries in an involuntary case, or
(b) appoints a Custodian of the Company or any Significant
Subsidiary or Group of Subsidiaries or for all or substantially
all of the property of the Company or any Significant Subsidiary
or Group of Subsidiaries, or
(c) orders the liquidation of the Company or any Significant
Subsidiary or Group of Subsidiaries,
(d) and in each case the order or decree remains unstayed
and in effect for 30 consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
An Event of Default shall not be deemed to have occurred under
clause (C), (E) or (F) until a Responsible Officer of the Trustee shall have
received written notice from the Company or any of the Holders or unless a
Responsible Officer shall have obtained actual knowledge of such Event of
Default. The notice referred to in
60
60
clause (D) must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
SECTION 6.2 ACCELERATION
If an Event of Default (other than an Event of Default specified
in clauses (G) or (H) of Section 6.1 relating to the Company, any Significant
Subsidiary or any Group of Subsidiaries) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Senior Notes by written notice to the Company and the
Trustee may declare the unpaid principal of and any accrued interest and
Liquidated Damages, if any, on all the Senior Notes to be due and payable. Upon
such declaration the principal and interest and Liquidated Damages, if any,
shall be due and payable immediately (together with the premium referred to in
Section 6.1, if applicable). If an Event of Default specified in clause (G) or
(H) of Section 6.1 relating to the Company, any Significant Subsidiary or any
Group of Subsidiaries occurs, such an amount shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of a majority in principal amount of the
then outstanding Senior Notes by written 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 (except nonpayment of
principal or interest or Liquidated Damages that has become due solely because
of the acceleration) have been cured or waived. The Trustee may withhold from
Holders of the Senior Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest.
In the event of a declaration of acceleration of the Senior Notes
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness specified in clause (E) of Section 6.1 hereof,
the declaration of acceleration of the Senior Notes shall be automatically
annulled if the holders of any Indebtedness specified in clause (E) of Section
6.1 hereof have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 days of the date of such declaration and if (a) the
annulment of the acceleration of Senior Notes would not conflict with any
judgment or decree of a court of competent jurisdiction and (b) all existing
Events of Default, except nonpayment of principal or interest on the Senior
Notes that became due solely because of the acceleration of the Senior Notes,
have been cured or waived.
SECTION 6.3 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Senior Notes or to
enforce the performance of any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Senior Notes or does not produce any of them in the proceeding. A
delay or
61
61
omission by the Trustee or any Holder of a Senior Note 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. All remedies
are cumulative to the extent permitted by law.
SECTION 6.4 WAIVER OF PAST DEFAULTS
Subject to Section 6.7 and Section 9.2, Holders of not less than a
majority in aggregate principal amount of the then outstanding Senior Notes by
notice to the Trustee may on behalf of the Holders of all of the Senior Notes
waive an existing Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of the principal
of, premium and Liquidated Damages, if any, or interest on, the Senior Notes
(including in connection with an offer to purchase). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.5 CONTROL BY MAJORITY
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Senior Notes or that may
involve the Trustee in personal liability.
SECTION 6.6 LIMITATION ON SUITS
A Holder of a Senior Note may pursue a remedy with respect to this
Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes offer
and, if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) 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
62
62
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Senior Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the rights of
another Holder of a Senior Note or to obtain a preference or priority over
another Holder of a Senior Note.
SECTION 6.7 RIGHTS OF HOLDERS OF SENIOR NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Senior Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Senior Note, on or after the
respective due dates expressed in the Senior Note (including in connection with
an offer to purchase), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.1(A) or (B) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Senior Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Senior Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Senior Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions,
63
63
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Senior Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on
the Senior Notes for principal and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Senior Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Senior Notes 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 a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Senior Note pursuant to Section 6.7 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE
64
64
(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 its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and 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;
and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it
65
65
except as the Trustee may agree in writing with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.2 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture and
subject to Section 7.2(b), any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.1 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 6.1(A) (other than with respect to Liquidated Damages ) or
6.1(B), or (ii) any Default or Event of Default of which a Responsible Officer
of the Trustee shall have received written notification or obtained actual
knowledge.
(h) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee may, in its discretion, make
66
66
such further inquiry or investigation into such facts or matters as it may see
fit and if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the Trust Indenture Act) it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Senior
Notes or the Offering Memorandum, it shall not be accountable for the Company's
use of the proceeds from the Senior Notes or any money paid to the Company or
upon the Company's direction under any provision of this Indenture, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
or recital herein or any statement in the Senior Notes or any other document in
connection with the sale of the Senior Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Senior Notes a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Senior Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Senior Notes.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES
Upon qualification of this Indenture and as required by the Trust
Indenture Act, within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Senior Notes remain
outstanding, the Trustee shall mail to the Holders of the Senior Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
67
67
A copy of each report at the time of its mailing to the Holders of
Senior Notes shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Senior Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Senior
Notes are listed on any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses (including reasonable attorneys' fees) incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.7) and defending
itself against any claim (whether asserted by the Company or any Holder or any
other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture and any other termination including a termination
under any bankruptcy laws.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Senior Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.1(G) or 6.1(H) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
68
68
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.8 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of Senior
Notes of a majority in principal amount of the then outstanding Senior Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Senior Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee notifies the Company of its resignation is removed, the
retiring Trustee, the Company, or the Holders of Senior Notes of at least 10% in
principal amount of the then outstanding Senior Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Senior
Note who has been a Holder of a Senior Note for at least six months, fails to
comply with Section 7.10, such Holder of a Senior Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, together with
the payment of all amounts due and owing to the retiring Trustee under Section
7.7 hereof, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee
69
69
shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Senior Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.2 or 8.3 hereof be applied to all outstanding Senior Notes
upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE
70
70
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior Notes on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Senior Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Senior Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Senior Notes to receive solely from the trust fund described in
Section 8.4 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Senior Notes when such payments are due, (b) the
Company's obligations with respect to such Senior Notes under Article 2 and
Section 4.2 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article Eight. Subject to compliance with this Article Eight, the Company
may exercise its option under this Section 8.2 notwithstanding the prior
exercise of its option under Section 8.3 hereof.
SECTION 8.3 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be released from its
obligations under the covenants contained in Sections 4.9, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and Section 5.1(iv), (v),
(vi) hereof with respect to the outstanding Senior Notes on and after the date
the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Senior Notes shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder
(it being understood that such Senior Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Senior Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 hereof, but, except as specified above, the remainder of this
Indenture and such Senior Notes shall be unaffected thereby. In addition, upon
the Company's exercise under Section 8.1 hereof of the option applicable to this
Section 8.3 hereof, subject to the satisfaction of the conditions set forth in
Section
71
71
8.4 hereof, Sections 6.1(E) and 6.1(F) hereof shall not constitute Events of
Default.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Senior Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Obligations or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest and Liquidated Damages, if any, on
the outstanding Senior Notes on the stated maturity date for payment
thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Senior Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee (1) an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable U.S. federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the
outstanding Senior Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Legal Defeasance
and will be subject to U.S. federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee (1) an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that the Holders of the outstanding Senior Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result
of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to defease the Senior
Notes pursuant to this Article Eight concurrently with such incurrence)
or insofar as Sections 6.1(G) or 6.1(H) hereof is concerned, at any
time in the period ending on the 91st day after the date of deposit;
72
72
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that on the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.6 hereof, all money and non-callable
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Senior Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Senior Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Senior Notes
of all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Obligations deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Obligations held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which
73
73
may be the opinion delivered under Section 8.4(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6 REPAYMENT TO THE COMPANY
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, Liquidated Damages or interest on any Senior Note and remaining unclaimed
for two years after such principal, and premium, if any, Liquidated Damages, if
any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Senior Note shall thereafter, as a creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.7 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Obligations in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Senior Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Senior Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Senior Notes to receive such payment from
the money held by the Trustee or Paying Agent.
SECTION 8.8 SURVIVAL OF CERTAIN OBLIGATIONS
Notwithstanding the satisfaction and discharge of this Indenture
and of the Senior Notes referred to in Sections 8.1, 8.2, 8.3, and 8.4 hereof,
the respective obligations of the Company and the Trustee under Sections 2.3,
2.4, 2.6, 2.7, 2.11, 7.7 and 8.7 hereof shall survive until the Senior Notes are
not longer outstanding, and thereafter the obligations of the Company and the
Trustee under Section 7.7 and 8.7 shall survive. Nothing contained in this
Article Eight shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
74
74
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES
Notwithstanding Section 9.2 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Senior Notes without the
consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or
in place of certificated Senior Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Senior Notes in the case of a merger or
consolidation pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights hereunder of any such Holder of the Senior
Notes; or
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act or to provide for the succession of a Successor Trustee.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.2 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS OF SENIOR NOTES
Except as provided below in this Section 9.2, the Company and the
Trustee may amend or supplement this Indenture (including Sections 4.9 and 4.11
hereof) and the Senior Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Senior Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Senior Notes), and, subject to Sections 6.4 and 6.7
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Senior Notes, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this
75
75
Indenture or the Senior Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Senior Notes (including
consents obtained in connection with a tender offer or exchange offer for the
Senior Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Senior Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.2 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Senior
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Senior Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the
Holders of a majority in aggregate principal amount of the Senior Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Senior Notes. However, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Senior Notes held by a non-consenting Holder):
(a) reduce the principal amount of Senior Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Senior Note or alter the provisions with respect to the redemption of
the Senior Notes, except as provided above with respect to Sections 4.9
and 4.10 hereof;
(c) reduce the rate of or change the time for payment of interest
or Liquidated Damages, if any, on any Senior Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on or Liquidated Damages,
if any, with respect to the Senior Notes (except a rescission of
acceleration of the Senior Notes by the Holders of at least a majority
in aggregate principal amount of the then outstanding Senior Notes and
a waiver of the payment default that resulted from such acceleration);
(e) make any Senior Note payable in money other than that stated
in the
76
76
Senior Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Senior
Notes to receive payments of principal of, premium or Liquidated
Damages, if any, or interest on the Senior Notes;
(g) waive a redemption payment with respect to any Senior
Note; or
(h) make any change in Section 6.4 or 6.7 hereof or in the
foregoing amendment and waiver provisions.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Senior
Notes shall be set forth in an amended or supplemental Indenture that complies
with the Trust Indenture Act as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Senior Note is a continuing consent by the Holder
of a Senior Note and every subsequent Holder of a Senior Note or portion of a
Senior Note that evidences the same debt as the consenting Holder's Senior Note,
even if notation of the consent is not made on any Senior Note. However, any
such Holder of a Senior Note or subsequent Holder of a Senior Note may revoke
the consent as to its Senior Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SENIOR NOTES
The Company may place an appropriate notation about an
amendment, supplement or waiver on any Senior Note thereafter authenticated. The
Company in exchange for all Senior Notes may issue and the Trustee shall
authenticate new Senior Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to
77
77
receive indemnity reasonably satisfactory to it and to receive and (subject to
Section 7.1) shall be fully protected in relying upon, in addition to the
documents required by Section 10.4, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and constitutes the legal, valid and
binding obligation of the Company subject to customary exceptions.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 10.2 NOTICES
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Oxford Health Plans, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000/8162
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; when receipt acknowledged, if telecopied; and the next
Business Day after
78
78
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the Trust Indenture Act. Failure to mail a
notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3 COMMUNICATION BY HOLDERS OF SENIOR NOTES
WITH OTHER HOLDERS OF SENIOR NOTES
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Senior
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company, upon request, shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Persons making such certificate or
opinion have
79
79
read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Persons, they
have made such examination or investigation as is necessary to enable
them to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Persons, such condition or covenant has been satisfied.
SECTION 10.6 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Senior Notes, this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Notes.
SECTION 10.8 GOVERNING LAW
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE SENIOR NOTES.
SECTION 10.9 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES
By the execution and delivery of this Indenture or any
amendment or supplement hereto, the Company (i) acknowledges that it has, by
separate written instrument, designated and appointed CT Corporation System (the
"Process Agent") currently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as its authorized agent upon which process may be served in any suit, action or
proceeding with respect to, arising out of, or relating to, this Indenture or
the Senior Notes or brought under U.S. federal or state securities laws, may be
instituted in any U.S. federal or state court located in The City of New York,
New York, and acknowledges that the Process Agent
80
80
has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit, action or proceeding, and (iii) agrees that service of
process upon the Process Agent shall be deemed in every respect effective
service of process upon the Company in any such suit, action or proceeding. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments as may be necessary to
continue such designation and appointment of the Process Agent in full force and
effect so long as this Indenture shall be in full force and effect; provided
that the Company may and shall (to the extent the Process Agent ceases to be
able to be served on the basis contemplated herein), by written notice to the
Trustee, designate such additional or alternative agents for service of process
under this Section 10.9 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (a)
counsel for the Company or (b) a corporate service company which acts as agent
for service of process for other persons in the ordinary course of its business
and for other persons in the ordinary course of its business and (iii) agrees to
act as agent for service of process in accordance with this Section 10.9. Such
notice shall identify the name of such agent for process and the address of such
agent for process in the Borough of Manhattan, The City of New York, State of
New York. Upon the request of any Holder of a Senior Note, the Trustee shall
deliver such information to such Holder. Notwithstanding the foregoing, there
shall, at all times, be at least one agent for service of process for the
Company appointed and acting in accordance with this Section 10.9.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Senior Notes, to the extent permitted by law.
SECTION 10.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 10.11 SUCCESSORS
All agreements of the Company in this Indenture and the Senior
Notes shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.12 SEVERABILITY
In case any provision in this Indenture or in the Senior 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.
81
81
SECTION 10.13 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 10.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
82
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, as of the date first written above.
(SEAL) OXFORD HEALTH PLANS, INC.
By:
Name:
Title:
(SEAL) THE CHASE MANHATTAN BANK, as Trustee
By:
Name:
Title:
83
(Face of Senior Note) Exhibit A
[Unless and until it is exchanged in whole or in part for Senior Notes in
definitive form, this Senior Note may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co.] or such other entity as may be requested by an authorized
representative of DTC), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](1)
THIS SENIOR NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING
THIS SENIOR NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SENIOR NOTE EXCEPT (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS SENIOR NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SENIOR NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON
(1) This paragraph should be included only if the Senior Note is issued in
global form.
A-83
84
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SENIOR NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.(2)
11% [Series A] [Series B] Senior
Notes due 0000
XXXXXX HEALTH PLANS, INC.
CUSIP No.
No. $___________
OXFORD HEALTH PLANS, INC. promises to pay to _______________
or registered assigns, the principal sum of Dollars on May 15, 2005.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Reference is hereby made to the further provisions of this Senior Note
set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if
set forth at this place.
(2) This paragraph should be removed upon the exchange of Series A Senior Notes
for Series B Senior Notes in the Exchange Offer or upon the registration of
Series A Senior Notes pursuant to the terms of the Registration Rights
Agreement.
A-84
85
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, and its corporate seal to be hereunto affixed, as of the date written
below.
OXFORD HEALTH PLANS, INC.
(SEAL) By:
Name:
Title:
By:
Name:
Title:
Dated:
Certificate of Authentication:
This is one of the Senior Notes
referred to in the within-mentioned
Indenture:
THE CHASE MANHATTAN BANK
as Trustee
By:_________________________________
Authorized Signatory
A-85
86
(Reverse of Senior Note)
11% [Series A] [Series B] Senior
Notes due 2005
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Oxford Health Plans, Inc., a Delaware corporation
("the Company"), promises to pay interest on the principal amount of this Senior
Note at 11% per annum from May 13, 1998 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually in arrears on May 15 and November 15 of each year (each an
"Interest Payment Date"), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Senior 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 issuance; provided that if there is no existing Default in the
payment of interest, and if this Senior Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be November 15,
1998. The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Senior Notes (except defaulted interest) and Liquidated Damages (as defined
below), if any, to the Persons who are registered Holders of Senior Notes at the
close of business on the May 1 or November 1 next preceding the Interest Payment
Date, even if such Senior Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Senior Notes will be payable
as to principal, premium, interest and Liquidated Damages at the office or
agency of the Company maintained for such purpose within the City and State of
New York, or, at the option of the Company, payment of interest and Liquidated
Damages may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium, if any, and Liquidated Damages on, all Global Senior Notes
and all other Senior Notes the Holders of which shall have provided wire
transfer instructions to the Company and the Paying Agent prior to the
applicable Record Date for such payment. 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
A-86
87
debts.
3. Paying Agent and Registrar. Initially, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Senior Notes under an
Indenture dated as of May 13, 1998 ("Indenture") between the Company and The
Chase Manhattan Bank, as trustee (the "Trustee"). The terms of the Senior Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the U.S. Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Senior Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Senior Notes are unsecured obligations of the Company limited to
$200.0 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in clauses 5(b) and (c) of this Senior
Note, the Senior Notes shall not be redeemable at the Company's option prior to
May 15, 2002. Thereafter, the Senior Notes shall be subject to redemption for
cash at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice to each Holder of Senior Notes to be redeemed at
the following redemption prices (expressed as percentages of principal amount
thereof) if redeemed during the twelve-month period beginning on May 15, 2002 of
each of the years indicated below, in each case together with any accrued and
unpaid interest and Liquidated Damages, if any, thereon to the applicable
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
YEAR PERCENTAGE
2002 105.500%
2003 102.750%
2004 and thereafter 100.000%
(b) Notwithstanding the provisions of clause 5(a) of this
Senior Note, at any time on or before May 15, 2001, the Company may (but shall
not have the obligation to) redeem for cash up to 33-1/3% of the original
aggregate principal amount of the Senior Notes at a redemption price of 111% of
the principal amount thereof, in each case plus any accrued and unpaid interest
and Liquidated Damages, if any, thereon to the redemption date, with the net
proceeds of a Public Equity Offering; provided that at least 66-2/3% of the
original aggregate principal amount of the Senior Notes remains outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 60 days of the date of the closing of such
Public Equity Offering.
A-87
88
(c) Notices of redemption will be mailed by first class mail
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Notes are to be redeemed at its registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000, unless all of the Senior Notes held by a Holder
are to be redeemed. Unless the Company defaults in making such redemption
payment, on and after the redemption date interest ceases to accrue on Senior
Notes or portions thereof called for redemption.
6. Mandatory Redemption.
Except as contemplated by clause 7 below, the Company shall
not be required to make any mandatory redemption, purchase or sinking fund
payments with respect to the Senior Notes prior to the maturity date.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Notes shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Senior Notes pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase (the "Change of Control Payment"). Within 30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Senior Notes pursuant to the procedures
required by this Indenture and described in such notice. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Senior Notes
as a result of a Change of Control.
On the Change of Control Purchase Date, the Company will, to
the extent lawful, (1) accept for payment all Senior Notes or portions thereof
validly tendered and not properly withdrawn pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Senior Notes or portions thereof so validly
tendered and not properly withdrawn and (3) deliver or cause to be delivered to
the Trustee the Senior Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Senior Notes or portions thereof being
purchased by the Company. The Paying Agent will promptly mail to each Holder of
Senior Notes so validly tendered and not properly withdrawn the Change of
Control Payment for such Senior Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Senior Note equal in principal amount to any unpurchased portion of the
Senior Notes surrendered, if any; provided that each such new Senior Note will
be in a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on the Change
of Control Purchase Date.
(b) The Company shall not, and shall not permit any of its
Restricted
A-88
89
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value of the assets or
Equity Interests sold or otherwise disposed of and, in the case of a lease of
assets, a lease providing for rent and other conditions which are no less
favorable to the Company (or the Restricted Subsidiary, as the case may be) in
any material respect than the then prevailing market conditions (evidenced in
each case by a resolution of the Board of Directors of such entity set forth in
an Officers' Certificate delivered to the Trustee) and (ii) at least 75% (100%
in the case of lease payments) of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided that the amount of any liabilities (as shown on the most
recent balance sheet of the Company or such Restricted Subsidiary) of the
Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Senior Notes) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability shall be deemed to be cash for the purposes of clause (ii).
The Company shall cause its Restricted Subsidiaries to transfer to the
Company all consideration received by the Restricted Subsidiaries from Asset
Sales and Excluded Asset Sales as promptly as practicable, except in the case of
Asset Sales to the extent the proceeds thereof are applied as set forth in
clause (a)(iii) or (b) of the immediately following paragraph.
Within 364 days after the receipt of any Net Proceeds from an Asset
Sale, the Company (or the Restricted Subsidiary, as applicable) may (a) apply
such Net Proceeds (i) to make an investment in, to make a capital expenditure
relating to, or to acquire other tangible assets in, the commercial group health
benefit business in New York, New Jersey, or Connecticut, (ii) to the reduction
of Indebtedness under the Term Loan Agreement or the permanent reduction of any
other Pari Passu Indebtedness of the Company or the permanent reduction of any
long-term Indebtedness of a Restricted Subsidiary, or (iii) to make capital
contributions to regulated Restricted Subsidiaries covering commercial lives
operating in New York, New Jersey or Connecticut which contributions are
required by law or requested in writing to be made by the appropriate state
regulatory authorities or (b) with respect to Net Proceeds received from an
Asset Sale by a regulated Restricted Subsidiary which are not permitted by
appropriate state regulatory authorities to be distributed or otherwise
transferred, retain such Net Proceeds as capital of such regulated Restricted
Subsidiary. Any Net Proceeds from Asset Sales that are not applied or invested
or committed to be applied or invested, as provided in the preceding sentence of
this paragraph shall be deemed to constitute "Excess Proceeds". On the earlier
of (i) the 365th day after an Asset Sale or (ii) such date as the Board of the
Company or the Restricted Subsidiary determines not to apply the Net Proceeds
relating to such Asset Sale in the manner set forth above, if the aggregate
amount of Excess Proceeds exceeds $20 million, the Company shall be required to
make an offer to all Holders of Senior Notes (an "Asset Sale Offer") to purchase
the maximum principal amount of Senior Notes that may be purchased out of the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase, in accordance with the
procedures set forth in the
A-89
90
Indenture. To the extent that the aggregate amount of Senior Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
aggregate principal amount of Senior Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes
to be purchased on a pro rata basis, by lot or by such other method as the
Trustee deems fair and appropriate. Upon completion of such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
The Company agrees that (i) a sale of the stock or assets of
FPA Medical Management, Inc. shall be for cash only, (ii) at least 50% of the
consideration received by the Company or a Restricted Subsidiary from the stock
or assets of Oxford Specialty and Oxford Health Plans (NH), Inc. shall be cash
or Marketable Securities, (iii) there shall be no restrictions on the
consideration received by the Company and its Restricted Subsidiaries from the
sale of the stock or assets of or Indebtedness issued by a Minority Investment
or the New York, New Jersey, Florida or Pennsylvania Medicaid business, Oxford
Health Plans (IL), Inc. or Oxford Health Plans (FL), Inc. and (iv) the
consideration received by the Company and its Restricted Subsidiaries from all
other Excluded Asset Sales shall be cash. The Company and its Restricted
Subsidiaries will sell all such Marketable Securities for cash no later than the
earlier of 60 days from receipt and the termination or expiration of any
governmental limitation of such sale.
8. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Senior Note or portion of a
Senior Note selected for redemption, except for the unredeemed portion of any
Senior Note being redeemed in part. Also, it need not exchange or register the
transfer of any Senior Notes for a period of 15 days before a selection of
Senior Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Senior
Note may be treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Senior Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Senior Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for Senior Notes), and any existing
default or compliance with any provision of the Indenture or the Senior Notes
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency, to provide for
A-90
91
uncertificated Senior Notes in addition to or in place of certificated Senior
Notes, to provide for the assumption of the Company's obligations to Holders of
the Senior Notes in case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the Holders of the Senior
Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act or to provide for the succession of a successor Trustee.
11. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest on, or Liquidated
Damages with respect to, the Senior Notes; (ii) default in payment when due of
the principal of or premium, if any, on the Senior Notes; (iii) failure by the
Company to comply with Sections 4.9, 4.10, 4.11 or 5.1 of the Indenture; (iv)
failure by the Company for 30 days after notice to comply with any of its other
agreements in the Indenture or the Senior Notes; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness or
guarantee exists on the date of the Indenture, or is created thereafter, which
default (a) is caused by a failure to pay when due (after giving effect to any
grace period related thereto) any principal of or premium, if any, or interest
on such Indebtedness (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 $10 million or more; (vi) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $10.0 million (net of any amounts with respect to which
a reputable and creditworthy insurance company has acknowledged liability in
writing), which judgments are not paid or discharged or stayed for a period of
60 days; and (vii) certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries or group of Restricted
Subsidiaries that, taken together (as of the latest audited consolidated
financial statements for the Company and its Subsidiaries), would constitute a
Significant Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company, any Significant Subsidiary or any group of Subsidiaries that, taken
together (as of the latest audited consolidated financial statements for the
Company and its Subsidiaries), would constitute a Significant Subsidiary, all
outstanding Senior Notes will become due and payable without further action or
notice. Holders of the Senior Notes may not enforce the Indenture or the Senior
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior Notes
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Senior Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or
A-91
92
interest) if it determines that withholding notice is in their interest. In the
event of a declaration of acceleration of the Senior Notes because an Event of
Default has occurred and is continuing as a result of the acceleration of any
Indebtedness described in clause (v) of the first sentence of this paragraph,
the declaration of acceleration of the Senior Notes shall be automatically
annulled if the holders of any Indebtedness described in clause (v) of the first
sentence of this paragraph have rescinded the declaration of acceleration in
respect of such Indebtedness within 30 days of the date of such declaration and
if (a) the annulment of the acceleration of Senior Notes would not conflict with
any judgment or decree of a court of competent jurisdiction and (b) all existing
Events of Default, except nonpayment of principal or interest on the Senior
Notes that became due solely because of the acceleration of the Senior Notes,
have been cured or waived. Subject to certain limitations, the Holders of a
majority in aggregate principal amount of the Senior Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Senior Notes
waive any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, premium and Liquidated Damages, if any, on the
Senior Notes. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
12. Defeasance Prior to Maturity or Redemption.
Subject to certain conditions contained in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Senior Notes and the Indenture if the Company deposits with the Trustee cash in
U.S. dollars or non-callable Government Obligations or a combination thereof
sufficient to pay the principal of, premium, interest and Liquidated Damages, if
any, on, the Senior Notes to maturity or a particular redemption date, as the
case may be.
13. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Senior Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Senior Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
15. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SENIOR NOTE.
16. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
X-00
00
00. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
18. Additional Rights of Holders of Transfer Restricted Senior
Notes. In addition to the rights provided to Holders of Senior Notes under the
Indenture, Holders of Transferred Restricted Senior Notes (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, between the
Company and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
19. 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 Senior Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Oxford Health Plans, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
A-93
94
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
(Insert assignee's Social Security or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Senior Note on the books of the Company or the agent appointed
by the Company to maintain such books. The agent appointed hereby may substitute
another to act for him.
Date:____________________
Your signature:______________________________
(Sign exactly as your name appears on the
face of this Senior Note)
Signature Guarantee:
A-94
95
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.9 or 4.10 of the Indenture, check the box below:
[ ] Section 4.9 [ ] Section 4.10
If you want to elect to have only part of the Senior Note
purchased by the Company pursuant to Section 4.9 or Section 4.10 of the
Indenture, state the amount you elect to have purchased: $__________________
Date:____________________ Your Signature:
(Sign exactly as your name
appears on the Senior Note)
Social Security or
Tax Identification No.:____________
Signature Guarantee.
A-95
96
SCHEDULE OF CHANGES IN PRINCIPAL AMOUNT OF SENIOR NOTE3/
The following changes in the principal amount of this Global
Senior Note have been recorded:
Date of Transaction Amount of decrease in Amount of increase in Principal Amount of this Signature of
------------------- Principal Amount of Principal Amount of Global Senior Note authorized officer
this Global Senior Note this Global Senior Note following such decrease of Trustee
----------------------- ----------------------- (or increase) ----------
-------------
----------------------
4. This should be included only if the Senior Note is issued in global form.
X-00
00
Xxxxxxx X-0
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL SENIOR NOTE TO REG S GLOBAL SENIOR NOTE
(Pursuant to Section 2.6(a)(1) of the Indenture)
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Re: 11% Senior Notes due 2005 of Oxford Health Plans, Inc.
Reference is hereby made to the Indenture, dated as of May 13,
1998 (the "Indenture"), between Oxford Health Plans, Inc. ("the Company") and
The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to $___________ principal amount of Senior
Notes which are evidenced by one or more U.S. Global Senior Notes and held with
the Depository in the name of _____________ (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Senior Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Senior Notes evidenced by one or more Reg S Global Senior Notes, which
amount, immediately after such transfer, is to be held with the Depository
through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Senior Notes
and pursuant to and in accordance with Rule 903 or Rule 904 under the United
States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Senior Notes was not made to a
person in the United States and, if the Distribution
Compliance Period has not yet expired and the
Transferor is a dealer (as defined in Section 2(12)
of the Securities Act, or a person receiving a
selling concession, fee or other remuneration in
respect of the Senior Notes being sold (collectively,
"Dealers"), (i) neither the Transferor or any person
acting on its behalf knows that the transferee is a
U.S. person and (ii) if the Transferor or any person
acting on its behalf knows that the transferee is a
Dealer, the Transferor or person acting on its behalf
has sent a confirmation or other notice to the
transferee stating that the Senior Notes may be
offered or sold during the Distribution Compliance
Period only in accordance with the provisions of
Regulation S, pursuant to registration under the
Securities Act or pursuant to an available exemption
from the registration requirements of the Securities
Act;
98
(2) either:
(a) at the time the buy order was originated,
the transferee was outside the United States
or the Transferor and any person acting on
its behalf reasonably believed and believes
that the transferee was outside the United
States; or
(b) the transaction was executed in, on or
through the facilities of a designated
offshore securities market and neither the
Transferor nor any person acting on its
behalf knows that the transaction was
prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 904(b) of
Regulation S;
(4) the transaction is not part of a plan or scheme to
evade the registration provisions
of the Securities Act; and
(5) upon completion of the transaction, the beneficial
interest being transferred as described above is to
be held with the Depository through Euroclear or
Cedel or both.
Upon giving effect to this request to exchange a beneficial
interest in a U.S. Global Senior Note for a beneficial interest in a Reg S
Global Senior Note. the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Reg S Global Senior Notes pursuant to the
Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the Initial Purchaser of such Senior Notes being
transferred. We acknowledge that you, the Company and the Initial Purchaser will
rely upon our confirmations, acknowledgements and agreements set forth herein,
and we agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________
Name:
Title:
Dated:
cc: Oxford Health Plans, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
B-1-98
99
Exhibit B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REG S GLOBAL SENIOR NOTE TO U.S. GLOBAL SENIOR NOTE
(Pursuant to Section 2.6(a)(ii) of the Indenture)
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Re: 11% Senior Notes due 2005 of Oxford Health Plans, Inc.
Reference is hereby made to the Indenture dated as of May 13,
1998 (the "Indenture"), between Oxford Health Plans, Inc. ("the Company"), and
The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to $____________ principal amount of
Senior Notes which are evidenced by one or more Reg S Global Senior Notes and
held with the Depository through Euroclear or Cedel in the name of (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Notes to a Person who will take delivery thereof in the
form of an equal principal amount of Senior Notes evidenced by one or more U.S.
Global Senior Notes, to be held with the Depository.
In connection with such request and in respect of such Senior
Notes, the Transferor hereby certifies that:
[CHECK ONE]
[ ] such 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 Senior Notes are being transferred to a Person that
the Transferor reasonably believes is purchasing the Senior Notes 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;
or
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
100
or
[ ] such transfer is being effected in an offshore transaction pursuant
to and in accordance with Rule 904 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than those
contemplated above, and the Transferor hereby further certifies that
the Senior Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Senior Notes and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and such Senior Notes are being transferred in compliance with any applicable
blue sky or securities laws of any state of the United States or any other
applicable jurisdiction.
Upon giving effect to this request to exchange a beneficial
interest in Reg S Global Senior Notes for a beneficial interest in U.S. Global
Senior Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to U.S. Global Senior Notes pursuant to the
Indenture and the Securities Act.
B-2-100
101
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporations, the Initial Purchaser of such Senior Notes being
transferred. We acknowledge that you, the Company and the Initial Purchaser will
rely upon our confirmations, acknowledgements and agreements set forth herein,
and we agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________
Name:
Title:
Dated:
cc: Oxford Health Plans, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
B-2-101
102
Exhibit B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED SENIOR NOTES
(Pursuant to Section 2.6(b) of the Indenture)
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Re: 11% Senior Notes due 2005 of Oxford Health Plans, Inc.
Reference is hereby made to the Indenture dated as of May 13,
1998 (the "Indenture"), between Oxford Health Plans, Inc. ("the Company"), and
The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This relates to $_________ principal amount of Senior Notes
which are evidenced by one or more Certificated Senior Notes in the name of
______________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such Certificated Senior Note(s) in the form of an equal principal
amount of Senior Notes evidenced by one or more Certificated Senior Notes, to be
delivered to the Transferor or, in the case of a transfer of such Senior Notes,
to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Notes"), the Holder of such Surrendered Senior Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Notes are being acquired for the Transferor's
own account, without transfer;
or
[ ] the Surrendered Senior Notes are being transferred to the Company;
or
[ ] the Surrendered Senior Notes are being transferred 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 Surrendered Senior Notes
are being transferred to a Person that the Transferor reasonably
believes is
103
purchasing the Surrendered Senior Notes 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
each case in a transaction meeting the requirements of Rule 144A;
or
[ ] the Surrendered Senior Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred in an offshore
transaction pursuant to and in accordance with Rule 904 under the
Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred to Institutional
Accredited Investor pursuant to an exemption under the Securities Act
other than Rule 144A, Rule 144 or Rule 904 and the Transferor further
certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Senior Notes and
Certificated Senior Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is supported
by a certificate attached hereto executed by the Transferee in the form
of Exhibit C to the Indenture, and, if the Company should so ---------
request, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act to the effect that such Transfer is in compliance with
the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than those
contemplated above, and the Transferor hereby further certifies that
the Senior Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Senior Notes and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Senior Notes are being transferred in compliance with any
applicable blue
B-3-103
104
sky or securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the Initial Purchaser of such Senior Notes being
transferred. We acknowledge that you, the Company and the Initial Purchaser will
rely upon our confirmations, acknowledgements and agreements set forth herein,
and we agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________
Name:
Title:
Dated:
cc: Oxford Health Plans, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
B-3-104
105
Exhibit B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL SENIOR NOTE OR REG S GLOBAL SENIOR NOTE
TO CERTIFICATED SENIOR NOTE
(Pursuant to Section 2.6(c) of the Indenture)
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Re: 11% Senior Notes due 2005 of Oxford Health Plans, Inc.
Reference is hereby made to the Indenture dated as of May 13,
1998 (the "Indenture"), between Oxford Health Plans, Inc. ("the Company"), and
The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to $_____________ principal amount of
Senior Notes which are evidenced by a beneficial interest in one or more U.S.
Global Senior Notes or Reg S Global Senior Notes in the name of
__________________ (the "Transferor"). The Transferor has requested an exchange
or transfer of such beneficial interest in the form of an equal principal amount
of Senior Notes evidenced by one or more Certificated Senior Notes, to be
delivered to the Transferor or, in the case of a transfer of such Senior Notes,
to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Notes"), the Holder of such surrendered Senior Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Notes are being transferred to the beneficial
owner of such Senior Notes;
or
[ ] the Surrendered Senior Notes are being transferred 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 Surrendered Senior Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Senior Notes for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such
106
Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A;
or
[ ] the Surrendered Senior Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
[ ] such transfer is being effected in an offshore transaction pursuant to
and in accordance with Rule 904 under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred to an Institutional
Accredited Investor pursuant to an exemption under the Securities Act
other than Rule 144A, Rule 144 or Rule 904 and the Transferor further
certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Senior Notes and
Certificated Senior Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is supported
by (x) if such transfer is in respect of a principal amount of Senior
Notes at the time of Transfer of $100,000 or more, a certificate
executed by the Transferee in the form of Exhibit C to the Indenture,
or (y) if such Transfer is in respect of a principal amount of Senior
Notes at the time of transfer of less than $100,000, (1) a certificate
executed in the form of Exhibit C 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 (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of
any state of the United States;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
exemption from the registration requirements of the Securities Act
other than those contemplated above, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Senior Notes
and in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
B-4-106
107
and the Surrendered Senior Notes are being transferred 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, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the Initial Purchaser of such Senior Notes being
transferred. We acknowledge that you, the Company and the Initial Purchaser will
rely upon our confirmations, acknowledgements and agreements set forth herein,
and we agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________
Name:
Title:
Dated:
cc: Oxford Health Plans, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
B-4-107
108
Exhibit C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Global Trust Services
Re: 11% Senior Notes due 2005 of Oxford Health Plans, Inc.
Reference is hereby made to the Indenture dated as of May 13,
1998 (the "Indenture"), between Oxford Health Plans, Inc. ("the Company"), and
The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed purchase of $________________
aggregate principal amount of:
(a) [ ] Beneficial interests, or
(b) [ ] Certificated Senior Notes,
we confirm that:
(i) we are an entity which is an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933, as amended (the "Securities Act"), or an entity in which all
of the equity owners are accredited investors within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor");
(ii) any purchase of Senior Notes by us will be for our own
account or for the account of one or more other Institutional
Accredited Investors;
(iii) in the event that we purchase any Senior Notes, we will
acquire Senior Notes having a minimum purchase price of at least
$100,000 for our own account and for each separate account for which we
are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing Senior Notes;
(v) we are not acquiring Senior Notes with a view to any
distribution thereof in a transaction that would violate the Securities
Act or the securities laws of any
000
Xxxxx xx xxx Xxxxxx Xxxxxx or any other applicable jurisdiction;
provided that the disposition of our property and the property of any
accounts for which we are acting as fiduciary shall remain at all times
within our control; and
(vi) we have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to
purchase Senior Notes.
We understand that the Senior Notes are being offered in a
transaction not involving any public offering within the meaning of the
Securities Act and that the Senior Notes have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any notes, that (A) such Senior Notes may be offered,
resold, pledged or otherwise transferred only (i) to a person whom we reasonably
believe to be a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in a transaction meeting the requirements of Rule 144A, in a
transaction meeting the requirements of Rule 144 under the Securities Act,
outside the United States in a transaction meeting the requirements of Rule 904
under the Securities Act or in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel if the Company so requests), (ii) to the Company or (iii) pursuant to an
effective registration statement under the Securities Act, and, in each case, in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction and (B) that we will, and each subsequent
Holder is required to, notify any subsequent purchaser from it of the resale
restrictions set forth in (A) above. We understand that the registrar and
transfer agent will not be required to accept for registration of transfer any
Senior Notes, except upon presentation of evidence satisfactory to the Company
that the foregoing restrictions on transfer have been complied with. We further
understand that the Senior Notes purchased by us will bear a legend reflecting
the substance of this paragraph.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the Initial Purchaser of such Senior Notes being
transferred. We acknowledge that you, the Company and the Initial Purchaser will
rely upon our confirmations, acknowledgements and agreements set forth herein,
and we agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
____________________________________
(Name of Purchaser)
C-109
110
By:__________________________________
Name:
Title:
Address:
C-110
111
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
----------- -----------------
310(a)(1) ...................................................................... 7.10
(a)(2) ...................................................................... 7.10
(a)(3) ...................................................................... N.A.
(a)(4) ...................................................................... N.A.
(b) ...................................................................... 7.3; 7.8; 7.10
(c) ...................................................................... N.A.
311(a) ...................................................................... 7.11
(b) ...................................................................... 7.11
(c) ...................................................................... N.A.
312(a) ..................................................................... 2.5
(b) ...................................................................... 10.3
(c) ...................................................................... 10.3
313(a) ...................................................................... 7.6
(b)(1) ...................................................................... N.A.
(b)(2) ................................................................... 7.6
(c) ................................................................... 7.6; 10.2
(d) ................................................................... 7.6
314(a) ..................................................................... 4.6; 10.2
(b) ................................................................... N.A.
(c)(1) ................................................................... 10.4
(c)(2) ................................................................... 7.2; 10.4
(c)(3) ................................................................... N.A.
(d) ................................................................... N.A.
(e) ................................................................... 10.5
(f) ................................................................... N.A.
315(a) ..................................................................... 7.1(a)
(b) ................................................................... 7.5; 10.2
(c) ................................................................... 7.1(b)
(d) ................................................................... 7.1(c)
(e) ................................................................... 6.11
316(a)(last sentence) .................................................................. 2.9
(a)(1)(A) ...................................................................... 6.5
(a)(1)(B) ...................................................................... 6.4
(a)(2) ...................................................................... N.A.
(b) ...................................................................... 6.7
317(a)(1) ...................................................................... 6.8
(a)(2) ...................................................................... 6.9
(b) ...................................................................... 2.4
318(a) ...................................................................... 10.1
-----------------------------------
N.A. means not applicable.
112
* This Cross-Reference is not part of the Indenture.
113
EXECUTION COPY
OXFORD HEALTH PLANS, INC.
as Issuer
$200,000,000
11% Senior Notes due 2005
---------------
INDENTURE
Dated as of May 13, 1998
---------------
THE CHASE MANHATTAN BANK
as Trustee
114
Page
----
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.1 DEFINITIONS 1
SECTION 1.2 OTHER DEFINITIONS 17
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT 18
SECTION 1.4 RULES OF CONSTRUCTION 18
ARTICLE 2 THE SENIOR NOTES 19
SECTION 2.1 FORM AND DATING 19
SECTION 2.2 EXECUTION AND AUTHENTICATION 21
SECTION 2.3 REGISTRAR AND PAYING AGENT 22
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST 22
SECTION 2.5 HOLDER LISTS 23
SECTION 2.6 TRANSFER AND EXCHANGE 23
SECTION 2.7 REPLACEMENT OF SENIOR NOTES 32
SECTION 2.8 OUTSTANDING SENIOR NOTES 33
SECTION 2.9 TREASURY SENIOR NOTES 33
SECTION 2.10 TEMPORARY SENIOR NOTES 33
SECTION 2.11 CANCELLATION 34
SECTION 2.12 DEFAULTED INTEREST 34
SECTION 2.13 RECORD DATE 34
SECTION 2.14 COMPUTATION OF INTEREST 34
SECTION 2.15 CUSIP NUMBER 34
ARTICLE 3 REDEMPTION AND PREPAYMENT 35
SECTION 3.1 NOTICES TO TRUSTEE 35
SECTION 3.2 SELECTION OF SENIOR NOTES TO BE REDEEMED 35
SECTION 3.3 NOTICE OF REDEMPTION 35
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION 36
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE 36
SECTION 3.6 SENIOR NOTES REDEEMED IN PART 37
SECTION 3.7 OPTIONAL REDEMPTION 37
SECTION 3.8 NO MANDATORY REDEMPTION 38
ARTICLE 4 COVENANTS 38
SECTION 4.1 PAYMENT OF SENIOR NOTES 38
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY 38
115
Page
----
SECTION 4.3 CORPORATE EXISTENCE 39
SECTION 4.4 MAINTENANCE OF PROPERTIES AND INSURANCE 39
SECTION 4.5 COMPLIANCE WITH LAWS 40
SECTION 4.6 REPORTS 40
SECTION 4.7 TAXES 40
SECTION 4.8 STAY, EXTENSION AND USURY LAWS 40
SECTION 4.9 CHANGE OF CONTROL 41
SECTION 4.10 ASSET SALES AND EXCLUDED ASSET 42
SECTION 4.11 RESTRICTED PAYMENTS 45
SECTION 4.12 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK 47
SECTION 4.13 SALE AND LEASEBACK TRANSACTIONS 49
SECTION 4.14 LIENS 50
SECTION 4.15 DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES 50
SECTION 4.16 TRANSACTIONS WITH AFFILIATES 51
SECTION 4.17 LINE OF BUSINESS 51
SECTION 4.18 LIMITATION AS TO UNRESTRICTED SUBSIDIARIES 52
SECTION 4.19 LIMITATION ON SALE OF STOCK OR ASSETS OF PRINCIPAL SUBSIDIARIES 52
SECTION 4.20 PAYMENTS FOR CONSENTS 52
SECTION 4.21 LIMITATIONS ON ISSUANCE OF GUARANTEES 52
SECTION 4.22 COMPLIANCE CERTIFICATE 53
ARTICLE 5 SUCCESSORS 54
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS 54
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED 54
ARTICLE 6 DEFAULTS AND REMEDIES 55
SECTION 6.1 EVENTS OF DEFAULT 55
SECTION 6.2 ACCELERATION 57
SECTION 6.3 OTHER REMEDIES 57
SECTION 6.4 WAIVER OF PAST DEFAULTS 58
SECTION 6.5 CONTROL BY MAJORITY 58
SECTION 6.6 LIMITATION ON SUITS 58
SECTION 6.7 RIGHTS OF HOLDERS OF SENIOR NOTES TO RECEIVE PAYMENT 59
SECTION 6.8 COLLECTION SUIT BY TRUSTEE 59
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM 59
SECTION 6.10 PRIORITIES 60
SECTION 6.11 UNDERTAKING FOR COSTS 60
ARTICLE 7 TRUSTEE 60
-115-
116
Page
----
SECTION 7.1 DUTIES OF TRUSTEE 60
SECTION 7.2 RIGHTS OF TRUSTEE 61
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE 62
SECTION 7.4 TRUSTEE'S DISCLAIMER 63
SECTION 7.5 NOTICE OF DEFAULTS 63
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES 63
SECTION 7.7 COMPENSATION AND INDEMNITY 63
SECTION 7.8 REPLACEMENT OF TRUSTEE 64
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC 65
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION 65
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY 66
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 66
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE 66
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE 66
SECTION 8.3 COVENANT DEFEASANCE 67
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE 67
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS 68
SECTION 8.6 REPAYMENT TO THE COMPANY 69
SECTION 8.7 REINSTATEMENT 69
SECTION 8.8 SURVIVAL OF CERTAIN OBLIGATIONS 70
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 70
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES 70
SECTION 9.2 WITH CONSENT OF HOLDERS OF SENIOR NOTES 71
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT 72
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS 72
SECTION 9.5 NOTATION ON OR EXCHANGE OF SENIOR NOTES 72
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC 73
ARTICLE 10 MISCELLANEOUS 73
SECTION 10.1 TRUST INDENTURE ACT CONTROLS 73
SECTION 10.2 NOTICES 73
SECTION 10.3 COMMUNICATION BY HOLDERS OF SENIOR NOTES
WITH OTHER HOLDERS OF 74
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT 74
-116-
117
SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION 75
SECTION 10.6 RULES BY TRUSTEE AND AGENTS 75
SECTION 10.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS 75
SECTION 10.8 GOVERNING LAW 75
SECTION 10.9 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES 76
SECTION 10.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS 76
SECTION 10.11 SUCCESSORS 76
SECTION 10.12 SEVERABILITY 77
SECTION 10.13 COUNTERPART ORIGINALS 77
SECTION 10.14 TABLE OF CONTENTS, HEADINGS, ETC 77
EXHIBITS
EXHIBIT A Form of Senior Note
EXHIBIT B-1 Form of Certificate for Exchange or Registration of Transfer from U.S.
Global Senior Note to Reg S Global Senior Note
EXHIBIT B-2 Form of Certificate for Exchange or Registration of Transfer from Reg S
Global Senior Note to U.S. Global Senior Note
EXHIBIT B-3 Form of Certificate for Exchange or Registration of Transfer of Certificated
Senior Notes
EXHIBIT B-4 Form of Certificate for Exchange or Registration of Transfer from U.S.
Global Senior Note or Reg S Global Senior Note to Certificated Senior Note
EXHIBIT C Form of Certificate from acquiring institutional accredited investor
-117-