Executed Copy
- --------------------------------------------------------------------------------
CONCENTRA OPERATING CORPORATION
and
THE GUARANTORS NAMED HEREIN
TO
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
----------------
Indenture
Dated as of August 17, 1999
----------------
13% Series A Senior Subordinated Notes due 2009
13% Series B Senior Subordinated Notes due 2009
- --------------------------------------------------------------------------------
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 17, 1999
Trust Indenture Indenture
Act Section Section
- --------------- ---------
ss. 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
ss. 311(a) ............................... 613(a)
(b) ............................... 613(b)
(b)(2) ............................... 703(a)(2)
703(b)
ss. 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
ss. 313(a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
ss. 314(a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
ss. 315(a) ............................... 601(a)
(b) ............................... 602
703(a)(6)
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
(d)(2) ............................... 601(c)(2)
(d)(3) ............................... 601(c)(3)
Trust Indenture Indenture
Act Section Section
- --------------- ---------
(e) ............................... 514
ss. 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
ss. 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
ss. 318(a) ............................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions................................................1
SECTION 102. Compliance Certificates and Opinions......................41
SECTION 103. Form of Documents Delivered to Trustee....................43
SECTION 104. Acts of Holders; Record Date..............................44
SECTION 105. Notices, Etc., to Trustee and Company.....................47
SECTION 106. Notice to Holders; Waiver.................................48
SECTION 107. Conflict with Trust Indenture Act.........................48
SECTION 108. Effect of Headings and Table
of Contents............................................49
SECTION 109. Successors and Assigns....................................49
SECTION 110. Separability Clause.......................................49
SECTION 111. Benefits of Indenture.....................................49
SECTION 112. Governing Law.............................................49
SECTION 113. Legal Holidays............................................49
SECTION 114. No Personal Liability of Directors,
Officers, Employees and Stockholders...................50
ARTICLE TWO
Note and Subsidiary Guarantee Forms
SECTION 201. Forms Generally...........................................51
ARTICLE THREE
The Notes
SECTION 301. Title and Terms...........................................53
SECTION 302. Denominations.............................................54
SECTION 303. Execution, Authentication, Delivery and
Dating.................................................54
SECTION 304. Temporary Notes...........................................55
SECTION 305. Registration, Registration of Transfer
and Exchange...........................................56
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Notes...........................................66
SECTION 307. Payment of Interest; Interest Rights
Preserved..............................................67
SECTION 308. Persons Deemed Owners.....................................69
SECTION 309. Cancellation..............................................69
SECTION 310. Computation of Interest...................................69
SECTION 311. CUSIP and ISIN Numbers....................................69
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...................70
SECTION 402. Application of Trust Money................................71
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.........................................72
SECTION 502. Acceleration of Maturity; Rescission and
Annulment..............................................75
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................................78
SECTION 504. Trustee May File Proofs of Claim..........................79
SECTION 505. Trustee May Enforce Claims Without
Possession of Notes....................................79
SECTION 506. Application of Money Collected............................80
SECTION 507. Limitation on Suits.......................................80
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest................81
SECTION 509. Restoration of Rights and Remedies........................82
SECTION 510. Rights and Remedies Cumulative............................82
SECTION 511. Delay or Omission Not Waiver..............................82
SECTION 512. Control by Holders........................................83
SECTION 513. Waiver of Past Defaults...................................83
SECTION 514. Undertaking for Costs.....................................84
SECTION 515. Waiver of Usury, Stay or Extension Laws...................84
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.......................84
SECTION 602. Notice of Defaults........................................86
SECTION 603. Certain Rights of Trustee.................................86
SECTION 604. Not Responsible for Recitals or
Issuance of Notes......................................87
SECTION 605. May Hold Notes............................................88
SECTION 606. Money Held in Trust.......................................88
SECTION 607. Compensation and Reimbursement............................88
SECTION 608. Disqualification; Conflicting Interests...................89
SECTION 609. Corporate Trustee Required; Eligibility...................89
SECTION 610. Resignation and Removal; Appointment of
Successor..............................................90
SECTION 611. Acceptance of Appointment by Successor....................91
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business..............................92
SECTION 613. Preferential Collection of Claims Against Company.........92
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders ............................................93
SECTION 702. Preservation of Information; Communications to Holders....93
SECTION 703. Reports by Trustee .......................................94
SECTION 704. Reports by Company .......................................94
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitation on Merger, Sale or
Consolidation..........................................95
SECTION 802. Successor Substituted.....................................97
SECTION 803. Transfer of Subsidiary Assets.............................97
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders .......98
SECTION 902. Supplemental Indentures with Consent of Holders. .........99
SECTION 903. Execution of Supplemental Indentures ....................100
SECTION 904. Effect of Supplemental Indentures .......................100
SECTION 905. Conformity with Trust Indenture Act......................101
SECTION 906. Reference in Notes to Supplemental Indentures............101
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest ..............101
SECTION 1002. Maintenance of Office or Agency .........................101
SECTION 1003. Money for Note Payments to be Held in Trust .............102
SECTION 1004. Existence................................................104
SECTION 1005. Maintenance of Properties................................104
SECTION 1006. Payment of Taxes and Other Claims........................105
SECTION 1007. Maintenance of Insurance.................................105
SECTION 1008. Limitation on Incurrence of Indebtedness and
Issuance of Preferred Stock ...........................106
SECTION 1009. Limitation on Restricted Payments........................110
SECTION 1010. Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries........116
SECTION 1011. Limitation on Liens Securing
Indebtedness..........................................119
SECTION 1012. Limitation on Transactions with
Affiliates............................................119
SECTION 1013. Limitation on Issuances and Sales of Equity
Interests in Restricted Subsidiaries..................122
SECTION 1014. Repurchase of Notes at the Option of the
Holder Upon a Change of Control.......................123
SECTION 1015. Repurchase of Notes at the Option of the
Holder Upon an Asset Sale.............................126
SECTION 1016. Investment Company.......................................128
SECTION 1017. Limitations on Issuances of Guarantees
of Indebtedness.......................................128
SECTION 1018. Additional Guarantees....................................129
SECTION 1019. Limitation on Lines of Business..........................129
SECTION 1020. Anti-Layering............................................129
SECTION 1021. Sale and Leaseback Transactions..........................130
SECTION 1022. [NOT USED]
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SECTION 1023. Designation of Restricted and
Unrestricted Subsidiaries.............................131
SECTION 1024. Advances of Subsidiaries.................................131
SECTION 1025. Payments for Consents....................................132
SECTION 1026. Statement by Officers as to Default;
Compliance Certificates...............................132
SECTION 1027. Waiver of Covenants......................................133
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Optional Redemption......................................133
SECTION 1102. Applicability of Article.................................134
SECTION 1103. Election to Redeem; Notice to Trustee....................135
SECTION 1104. Selection by Trustee of Notes to Be Redeemed 135
SECTION 1105. Notice of Redemption.....................................136
SECTION 1106. Deposit of Redemption Price..............................137
SECTION 1107. Notes Payable on Redemption Date.........................137
SECTION 1108. Notes Redeemed in Part...................................138
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Legal Defeasance
or Covenant Defeasance................................138
SECTION 1202. Legal Defeasance and Discharge...........................138
SECTION 1203. Covenant Defeasance......................................139
SECTION 1204. Conditions to Legal or Covenant
Defeasance............................................139
SECTION 1205. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions...142
SECTION 1206. Reinstatement............................................142
ARTICLE THIRTEEN
Subordination
SECTION 1301. Agreement to Subordinate.................................143
SECTION 1302. Liquidation; Dissolution; Bankruptcy.....................143
SECTION 1303. Default on Senior Indebtedness...........................145
SECTION 1304. Acceleration of Notes....................................146
SECTION 1305. When Distribution Must Be Paid Over......................147
SECTION 1306. Notice by Company........................................148
SECTION 1307. Subrogation..............................................148
SECTION 1308. Relative Rights..........................................149
SECTION 1309. Subordination May Not Be Impaired by Company.............149
SECTION 1310. Rights of Trustee and Paying Agent.......................150
SECTION 1311. Authorization to Effect Subordination....................151
SECTION 1312. Amendments...............................................151
ARTICLE FOURTEEN
Subsidiary Guarantees
SECTION 1401. Subsidiary Guarantees....................................151
SECTION 1402. Execution and Delivery of Subsidiary
Guarantees............................................154
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SECTION 1403. Guarantors May Consolidate, etc., on
Certain Terms.........................................154
SECTION 1404. Releases Following Sale of Assets........................156
SECTION 1405. Limitation of Guarantor's Liability......................157
SECTION 1406. Application of Certain Terms and
Provisions to the Guarantors..........................157
SECTION 1407. Release of Subsidiary Guarantees.........................158
SECTION 1408. Subordination of Subsidiary Guarantees...................158
SECTION 1409. Waiver of Subrogation....................................159
SECTION 1410. Immediate Payment........................................160
SECTION 1411. No Set-Off...............................................161
SECTION 1412. Obligations Absolute.....................................161
SECTION 1413. Obligations Continuing...................................161
SECTION 1414. Obligations Not Reduced..................................161
SECTION 1415. Obligations Reinstated...................................161
SECTION 1416. Obligations Not Affected.................................162
SECTION 1417. Dealing with the Company and Others......................164
SECTION 1418. Default and Enforcement..................................164
SECTION 1419. Costs and Expenses.......................................165
SECTION 1420. No Waiver; Cumulative Remedies...........................165
SECTION 1421. Representation and Warranty of each
Guarantor.............................................165
SECTION 1422. Successors and Assigns...................................166
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Page
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EXHIBIT A FORM OF NOTE...............................................A-1
EXHIBIT B FORM OF REGULATION S CERTIFICATE
FOR HOLDER.................................................B-1
EXHIBIT C FORM OF NOTATION OF SUBSIDIARY
GUARANTEE .................................................C-1
EXHIBIT D FORM OF INTERCOMPANY NOTE .................................D-1
Schedule I SCHEDULE OF GUARANTORS ......................Schedule I Page 1
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INDENTURE, dated as of August 17, 1999, among Concentra
Operating Corporation, a corporation duly organized and existing under the laws
of the State of Nevada (herein called the "Company"), having its principal
office at 312 Union Wharf, Boston, Massachusetts 02109, the Guarantors, and
United States Trust Company of New York, a bank and trust company duly organized
under the New York Banking Law, as Trustee (herein called 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 Company's 13% Series A
Senior Subordinated Notes due 2009 (the "Series A Notes") and the class of 13%
Series B Senior Subordinated Notes due 2009 of the Company (the "Series B Notes"
and, together with the Series A Notes, the "Notes") to be exchanged for the
Series A Notes of the Company:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in
accordance with GAAP; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a
Subsidiary of such specified Person or assumed in
connection with the acquisition of assets from such
Person, whether or not such Indebtedness is incurred
in connection with, or in contemplation of, such
other Person merging with or into, or becoming a
Subsidiary of such specified Person or such
acquisition, and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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," 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 Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" shall have correlative meanings; PROVIDED THAT any
affiliated professional associations and professional corporations which employ
physicians and other professionals who provide health care services for the
-2-
Company's occupational health services centers shall not be deemed to be an
Affiliate of the Company, Holdings or any of their Subsidiaries.
"Affiliate Management Fees" means any management, consulting,
monitoring or advisory fees, and related expenses, payable to Welsh Carson,
Ferrer Freeman or their respective Affiliates.
"Affiliate Transaction" has the meaning set forth in Section
1012.
"Asset Sale" means:
(1) the sale, lease (other than an operating lease
entered into in the ordinary course of business),
conveyance or other disposition (a "Disposition") of
any assets or rights (other than the licensing of its
non-exclusive intellectual property rights)
(including, without limitation, by way of a sale and
leaseback), PROVIDED THAT the Disposition of all or
substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole shall be
governed by Section 1014 and/or by Section 801 and
not by Section 1015; and
(2) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of
the Company's Restricted Subsidiaries (other than
directors' qualifying shares),
that, in the case of either clause (1) or (2) and whether in a single
transaction or a series of related transactions:
(a) has a fair market value in excess of $5
million, or
(b) is for net proceeds to the Company and its
Restricted Subsidiaries in excess of $5
million.
Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales:
(1) a transfer of assets among the Company, its Wholly
Owned Restricted Subsidiaries and its Permitted Joint
Ventures;
(2) an issuance of Equity Interests by a Wholly Owned
Restricted Subsidiary to the Company or to another
Wholly Owned Restricted Subsidiary;
(3) a Restricted Payment that is permitted by Section
1009;
(4) the sale of Cash Equivalents in the ordinary course
of business;
-3-
(5) a disposition of inventory in the ordinary course of
business;
(6) sales of accounts receivable and related assets or an
interest therein of the type specified in the
definition of "Qualified Receivables Transaction" to
a Receivables Entity;
(7) a disposition relating to the foreclosure of a
Permitted Lien;
(8) the sale and leaseback of any assets within 90 days
of the acquisition thereof; and
(9) any exchange of property pursuant to Section 1031 on
the Internal Revenue Code of 1986, as amended, for
use in a Permitted Business.
"Asset Sale Offer" has the meaning set forth in Section 1015.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value 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. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any Federal or
State bankruptcy, insolvency, reorganization or other similar law.
"Board of Directors" means, with respect to any Person, the
board of directors of such Person, or any committee of the Board of Directors of
such Person authorized, with respect to any particular matters, to exercise the
power of such board of directors of such Person.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors of the Company and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which
-4-
banking institutions in New York, New York are authorized or obligated by law or
executive order to close.
"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:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or
other equivalents (however designated) of corporate
stock;
(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether
general or limited); and
(4) 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:
(1) Government Securities having maturities of not more
than six months from the date of acquisition;
(2) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities
not exceeding six months and overnight bank deposits,
in each case with any lender party to the Senior
Credit Facilities or with any domestic commercial
bank having capital and surplus in excess of $500
million and a Thompson Bank Watch Rating of "B" or
better;
(3) repurchase obligations with a term of not more than
seven days for underlying securities of the types
described in clauses (1) and (2) above entered into
with any
-5-
financial institution meeting the qualifications
specified in clause (2) above;
(4) commercial paper having the rating of "P-1" (or
higher) from Moody's Investors Service, Inc. or "A-1"
(or higher) from Standard & Poor's Rating Service and
in each case maturing within six months after the
date of acquisition; and
(5) interests in money market funds investing exclusively
in investments that constitute Cash Equivalents of
the kinds described in clauses (1) through (4) of
this definition.
"CEDEL" has the meaning set forth in Section 201.
"Certificated Notes" means Notes in registered certificated
form.
"Change of Control" means the occurrence of any of the
following:
(1) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the
assets of either (x) the Company and its Subsidiaries
taken as a whole or (y) Holdings to any "person" (as
such term is used in Section 13(d) (3) of the
Exchange Act) other than the Principals or a Related
Party of any of the Principals;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including,
without limitation, any merger or consolidation) the
result of which is that any "person" (as defined
above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act), directly or indirectly, of more than
50% of the Voting Stock of the Company (measured by
voting power rather than number of shares);
(4) the first day on which a majority of the members of
the Board of Directors of the Company are not
Continuing Directors; or
(5) the Company or Holdings consolidates with, or merges
with or into, any Person, or any
-6-
Person consolidates with, or merges with or into, the
Company or Holdings, in any such event pursuant to a
transaction in which any of the outstanding Voting
Stock of the Company or Holdings, as the case may be,
is converted into or exchanged for cash, securities
or other property, other than any such transaction
where the Voting Stock of the Company or Holdings, as
the case may be, outstanding immediately prior to
such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a
majority of the outstanding shares of such Voting
Stock of such surviving or transferee Person
immediately after giving effect to such issuance.
"Change of Control Offer" has the meaning set forth in Section
1014.
"Change of Control Payment" has the meaning set forth in
Section 1014.
"Commission" means the Securities and Exchange Commission as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"consolidated" means, with respect to any Person, the
consolidated accounts of such Person and its
-7-
Subsidiaries with those of such Person, all in accordance with GAAP; PROVIDED
THAT "consolidated" shall not include consolidation of the accounts of any
Unrestricted Subsidiary with the accounts of the Company.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Consolidated Net Income of such Person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
(1) consolidated income taxes;
(2) consolidated depreciation and amortization (including
amortization of debt issuance costs in connection
with any Indebtedness of such Person and its
Restricted Subsidiaries and depreciation and
amortization attributable to the two Permitted Joint
Ventures existing at the Issue Date which are not
consolidated);
(3) Fixed Charges;
(4) expenditures paid prior to or contemporaneously with
and related to the Transactions which are paid or
otherwise accounted for within 90 days of the
consummation of the Transactions;
(5) expenditures paid prior to or contemporaneously with
and related to any actual or proposed financing,
mergers or dispositions or acquisitions permitted to
be incurred by this Indenture (including, without
limitation, financing and legal fees and costs
incurred with any such merger, acquisitions or
dispositions);
(6) the restructuring charge of $20.6 million incurred in
the fourth quarter of 1998; and
(7) all other non-cash charges (excluding any such
non-cash charge to the extent that it represents an
accrual of or reserve for cash expenses in any future
period or amortization
-8-
of a prepaid cash expense that was paid in a prior
period);
PROVIDED THAT consolidated income taxes, depreciation and amortization of a
Subsidiary of such Person that is not a Wholly Owned Subsidiary shall only be
added to the extent of the Equity Interest of such Person in such Subsidiary.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication:
(1) the interest expense of such Person and its
Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with
GAAP (including amortization of original issue
discount, non-cash interest payments, the interest
component of all payments associated with Capital
Lease Obligations, imputed interest with respect to
Attributable Debt, 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;
PROVIDED THAT in no event shall any amortization of
deferred financing costs be included in Consolidated
Interest Expense); plus
(2) the consolidated capitalized interest of such Person
and its Restricted Subsidiaries for such period,
whether paid or accrued; plus
(3) the cash contributions to any employee stock
ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay
interest or fees to such plan or trust; PROVIDED,
HOWEVER, that there shall be excluded therefrom any
such interest expense of any Unrestricted Subsidiary
to the extent the related Indebtedness is not
Guaranteed or paid by the Company or any Restricted
Subsidiary.
Notwithstanding the preceding, the Consolidated Interest
Expense with respect to any Restricted Subsidiary that is not a Wholly Owned
Restricted Subsidiary shall be
-9-
included only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income.
"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
(1) 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 Wholly Owned Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or
payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior
governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary
or its stockholders;
(3) 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;
(4) the cumulative effect of a change in accounting
principles shall be excluded; and
(5) the Net Income of any Unrestricted Subsidiary shall
be excluded, whether or not distributed to the
Company or one of its Subsidiaries.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue
Date;
-10-
(2) was nominated for election or elected to such Board
of Directors with the approval of a majority of the
Continuing Directors who were members of such Board
at the time of such nomination or election; or
(3) was nominated by the Principals.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 105 hereof or such other address as to which the
Trustee may give notice to the Company.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Credit Agent" means The Chase Manhattan Bank, in its capacity
as Administrative Agent for the lenders party to the Senior Credit Facilities,
or any successor thereto or any person otherwise appointed.
"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.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Notes" means Notes in the form of Notes as set
forth in Exhibit A hereof that do not include the information called for by
footnotes 1 and 6 thereof.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 201
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Indebtedness" means any Indebtedness
outstanding under the Senior Credit Facilities.
"Development Corporation" means any corporation, association,
limited liability company or other business (other than a partnership) existing
at the Issue Date managed by the Company but owned by a Person (who is not the
Company or an Affiliate or a Subsidiary of the Company),
-11-
engaged in the development of occupational health centers and financed by the
issue of Equity Interests and notes sold pursuant to securities purchase
agreements to third party investors.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would not qualify
as Disqualified Stock but for change of control or asset sale provisions shall
not constitute Disqualified Stock if the provisions are not more favorable to
the holders of such Capital Stock than under Section 1014 and Section 1015.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offering of the Equity Interests
(other than Disqualified Stock) of the Company.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1015.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Series B Notes, as supplemented
from time to time in accordance with the terms hereof, to be issued pursuant to
this Indenture in connection with the offer to exchange Series B Notes for
Initial Notes that may be made by the Company pursuant to the Registration
Rights Agreement.
-12-
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and
its Subsidiaries (other than Indebtedness under the Senior Credit Facilities) in
existence on the Issue Date, until such amounts are repaid.
"Expiration Date" has the meaning set forth in Section 104.
"Ferrer Freeman" means Ferrer Freeman Thompson & Co. LLC and
its Affiliates.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated EBITDA of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs, assumes, Guarantees,
repays, repurchases, defeases, redeems or otherwise discharges any Indebtedness
(other than revolving credit borrowings) or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving PRO FORMA effect
to such incurrence, assumption, Guarantee, repayment, repurchase, defeasance,
redemption or discharge of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions or dispositions 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 calculated to include the
Consolidated EBITDA of the
-13-
acquired entities on a PRO FORMA basis (to be
calculated in accordance with Article 11-02 of
Regulation S-X, as in effect from time to time),
shall be deemed to have occurred on the first day of
the four-quarter reference period and Consolidated
EBITDA for such reference period shall be calculated
without giving effect to clause (3) of the proviso
set forth in the definition of Consolidated Net
Income;
(2) the Consolidated EBITDA attributable to discontinued
operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the
Calculation Date, shall be excluded if greater than
zero; and
(3) 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 shall not be obligations of the specified
Person or any of its Restricted Subsidiaries
following the Calculation Date.
For purposes of this definition, whenever PRO FORMA effect is
to be given to an Investment or an acquisition or disposition of assets, the
amount of income or earnings relating thereto and the amount of Consolidated
Interest Expense associated with any Indebtedness incurred in connection
therewith, or any other calculation under this definition, the PRO FORMA
calculations shall be determined in good faith by a responsible financial or
accounting officer of the Company (including PRO FORMA expense and cost
reductions calculated on a basis consistent with Regulation S-X under the
Securities Act). If any Indebtedness bears a floating rate of interest and is
being given PRO FORMA effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any interest rate
agreement applicable to such Indebtedness if such interest rate agreement has a
remaining term in excess of 12 months).
-14-
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of:
(1) the Consolidated Interest Expense of such Person for
such period, minus the interest income of such Person
and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with
GAAP; plus
(2) 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; plus
(3) the product of (a) all dividend payments, whether or
not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other
than dividend payments on Equity Interests payable
solely in Equity Interests of the Company, times (b)
a fraction, the numerator of which is one and the
denominator of which is one minus the then current
combined federal, state and local statutory tax rate
of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note" means a Note (including a Rule 144A Global Note
or a Regulation S Global Note) that contains the information referred to in
footnotes 1 and 6 to the form of Notes as set forth in Exhibit A.
-15-
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, letters of credit and
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
"Guarantors" means each Subsidiary of the Company that
executes a Subsidiary Guarantee in accordance with the provisions of this
Indenture, and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(2) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or
currency exchange rates.
"Holder" means a Person in whose name a Note is registered in
the Note Register.
"Holdings" means Concentra Managed Care, Inc.
"Holdings Senior Discount Debentures" means the 14% Senior
Discount Debentures due 2010 issued by Holdings on the Issue Date and any
Indebtedness of Holdings issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund such 14% Senior
Discount Debentures due 2010; PROVIDED THAT such Indebtedness complies with
clauses (1), (2) and (3) of the definition of "Permitted Refinancing
Indebtedness".
"incur" has the meaning set forth in Section 1008.
"Indebtedness" means, with respect to any specified Person,
any indebtedness of such Person, in respect of:
-16-
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement
agreements in respect thereof);
(3) bankers' acceptances;
(4) representing Capital Lease Obligations; or
(5) the balance deferred and unpaid of the purchase price
of any property (which purchase price is due more
than 60 days after the date of placing such property
in service or taking delivery and title thereto) 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 preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date
shall be:
(a) the accreted value thereof, in the case of any
Indebtedness that does not require current payments
of interest; and
(b) the principal amount thereof, together with any
interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
"Insolvency or Liquidation Proceedings" means:
(1) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or
other similar case or proceeding, relative to the
Company or to the
-17-
creditors of the Company, as such, or to the assets
of the Company;
(2) any liquidation, dissolution, reorganization or
winding up of the Company, whether voluntary or
involuntary, and involving insolvency or bankruptcy;
or
(3) any assignment for the benefit of creditors or any
other marshaling of assets and liabilities of the
Company.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Notes" means $190.0 million in aggregate principal
amount of the Series A Notes, as supplemented from time to time in accordance
with the terms hereof, issued under this Indenture on the date hereof that
contain the information referred to in footnotes 1, 5 and 7 to the form of Note
as set forth in Exhibit A hereof.
"Interest Payment Date" means each of February 15 and August
15, commencing on February 15, 2000.
"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
and similar advances to officers and employees made in the ordinary course of
business), or purchases or other acquisitions of or the transfer of assets for
consideration of, Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or
-18-
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 1009.
"Issue Date" means the date on which the $190 million in
aggregate principal amount of the Initial Notes is originally issued under this
Indenture.
"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" shall have the meaning specified in the
Registration Rights Agreement.
"Maturity", when used with respect to any Note, means the date
on which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Merger Agreement" means the Agreement and Plan of Merger,
dated as of March 2, 1999 between Concentra Managed Care, Inc. and Yankee
Acquisition Corp., as amended and restated dated as of March 24, 1999.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP, excluding, however:
(1) any gain (loss), together with any related provision
for taxes on such gain (loss), realized in connection
with:
(a) any Asset Sale; or
-19-
(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; and
(2) any extraordinary or nonrecurring gain (loss),
together with any related provision for taxes on such
extraordinary or nonrecurring gain (loss).
"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 the amounts required to be
applied to the payment of Indebtedness (other than Indebtedness incurred
pursuant to the Senior Credit Facilities) secured by a Lien on the asset or
assets that were the subject of the Asset Sale.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its
Restricted Subsidiaries:
(a) provides credit support of any kind
(including any undertaking, agreement or
instrument that would constitute
Indebtedness),
(b) is directly or indirectly liable as a
guarantor or otherwise, or
(c) constitutes the lender;
(2) 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
-20-
notice, lapse of time or both any holder of any other
Indebtedness (other than the Notes) of the Company or
any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to
its stated maturity; and
(3) as to which the lenders have been notified in writing
that they shall not have any recourse to the stock or
assets of the Company or any of its Restricted
Subsidiaries.
"Notes" means, collectively, the Series A Notes and, when and
if issued as provided in the Registration Rights Agreement, the Exchange Notes.
"Notes Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notes Register" or "Notes Registrar" have the respective
meanings set forth in Section 305.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"officer" means, with respect to any Person, the 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.
"Offering Memorandum" means the offering memorandum, dated
August 15, 1999, relating to the offering of the Notes.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officer's
Certificate given pursuant to Section 1026 shall
-21-
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; PROVIDED THAT, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if
-22-
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
"PARI PASSU", when used with respect to the ranking of any
Indebtedness of any Person in relation to other Indebtedness of such Person,
means that each such Indebtedness (a) either (i) is not subordinated in right of
payment to any other Indebtedness of such Person or (ii) is subordinate in right
of payment to the same Indebtedness of such Person as is the other and is so
subordinate to the same extent and (b) is not subordinate in right of payment to
the other or to any Indebtedness of such Person as to which the other is not so
subordinate.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest (and Liquidated Damages,
if any) on any Notes on behalf of the Company.
"Payment Blockage Period" has the meaning set forth in Section
1303.
"Payment Default" has the meaning set forth in Section 501.
"Payment Notice" has the meaning set forth in Section 1303.
"Permitted Business" means any business in which the Company
and its Restricted Subsidiaries are engaged on the Issue Date or any business
reasonably related, incidental or ancillary thereto.
"Permitted Debt" has the meaning set forth in Section 1008.
"Permitted Investments" means:
(l) any Investment in the Company or in a Restricted
Subsidiary (other than a Permitted Joint Venture);
(2) any Investment in cash or Cash Equivalents;
-23-
(3) any Investment in receivables owing to the Company or
any Restricted Subsidiary created or acquired in the
ordinary course of business and payable or
dischargeable in accordance with customary trade
terms; provided, HOWEVER, that such trade terms may
include such concessionary trade terms as the Company
or any such Restricted Subsidiary deems reasonable
under the circumstances;
(4) any Investment received by the Company or any
Restricted Subsidiary as consideration for the
settlement of any litigation, arbitration or claim of
bankruptcy or in partial or full satisfaction of
accounts receivable owed by a financially troubled
Person to the extent reasonably necessary in order to
prevent or limit any loss by the Company or any of
its Restricted Subsidiaries in connection with such
accounts receivable;
(5) Investments in existence on the Issue Date;
(6) Hedging Obligations entered into in the ordinary
course of business which transactions or obligations
are incurred in compliance with Section 1008;
(7) Guarantees issued in accordance with the covenant
described in Section 1008;
(8) any Investment by the Company or a Restricted
Subsidiary in a Receivables Entity or any Investment
by Receivables Entity in any other Person, in each
case, in connection with a Qualified Receivables
Transaction; PROVIDED, HOWEVER, that any Investment
in any such Person is in the form of a Purchase Money
Note, or any equity interest or interests in accounts
receivable and related assets generated by the
Company or a Restricted Subsidiary and transferred to
any Person in connection with a Qualified Receivables
Transaction or any such Person owning such accounts
receivable;
(9) any Investment by the Company or any Restricted
Subsidiary of the Company (other
-24-
than a Permitted Joint Venture) in a Person, if as a
result of such Investment:
(a) such Person becomes a Restricted Subsidiary
(other than a Permitted Joint Venture) of
the Company or of a Restricted Subsidiary of
the Company(other than a Permitted Joint
Venture); or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or
conveys substantially all of its assets to,
or is liquidated into, the Company or a
Restricted Subsidiary of the Company (other
than a Permitted Joint Venture);
(10) any Investment 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 1015;
(11) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified
Stock) of the Company; and
(12) any Investment in any Permitted Joint Venture after
the Issue Date in an aggregate amount not to exceed
$45 million, such aggregate amount to be increased as
a result of any management fees, software fees and
development fees received from such Permitted Joint
Ventures in the ordinary course of business and any
payment of any dividend or distribution received on a
pro rata basis from any Permitted Joint Ventures as a
holder of its Equity Interests.
"Permitted Joint Venture" means, with respect to any Person:
(1) any corporation, association or other business entity
(other than a partnership):
(a) of which more than 50% (or in the case of
any such business entity in which the
Company or any Restricted Subsidiary has an
Investment before the Issue Date, 50% or
more) of the Voting Stock is at the time of
determination owned or controlled, directly
or indirectly, by such Person or one or more
of the
-25-
Restricted Subsidiaries of that Person or a
combination thereof; and
(b) which is either managed or controlled by
such Person or any of its Restricted
Subsidiaries; and
(2) any partnership, joint venture, limited liability
Company or similar entity:
(a) of which more than 50% (or in the case of
any such entity in which the Company or any
Restricted Subsidiary has an Investment
before the Issue Date, 50% or more) of the
capital accounts, distribution rights, total
equity and voting interests or general or
limited partnership interests are owned or
controlled, directly or indirectly, by such
Person or one or more of the Restricted
Subsidiaries of that Person or a combination
thereof;
(b) which is either managed or controlled by
such Person or any of its Restricted
Subsidiaries, and which in the case of each
of clauses (1) and (2),
(A) is engaged in a Permitted Business;
(B) only incurs Indebtedness to the Company;
(C) does not enter into any Guarantee; and
(D) distributes all cash pro rata in accordance
with the Equity Interests therein at least
annually (other than cash required to be
reserved on its balance sheet in accordance
with GAAP consistent with past practice).
"Permitted Liens" means:
(1) Liens that secure up to an aggregate principal amount
of $475 million of Senior Indebtedness and Guarantees
incurred pursuant to the Senior Credit Facilities;
(2) Liens in favor of the Company or any Restricted
Subsidiary;
(3) Liens on property of a Person existing at the time
such Person becomes a Restricted Subsidiary or is
merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, PROVIDED THAT
such Liens were
-26-
not incurred in contemplation of such event, merger
or consolidation and do not extend to any assets
other than those of the Person that becomes a
Restricted Subsidiary or merged into or consolidated
with the Company or any Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary
of the Company, provided such Liens were not incurred
in contemplation of such acquisition;
(5) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred
in the ordinary course of business;
(6) Liens existing on the Issue Date;
(7) 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;
(8) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of the second
paragraph of the covenant described in Section 1008;
(9) Liens securing Permitted Refinancing Indebtedness
where the Liens securing the Indebtedness being
refinanced were permitted under this Indenture;
(10) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not
exceed $5 million at any one time outstanding and
that: (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or
-27-
credit (other than trade credit in the ordinary
course of business) and (b) do not in the aggregate
materially detract from the value of the property or
materially impair the use thereof in the operation of
business by the Company or such Restricted
Subsidiary;
(11) Liens on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted
Subsidiaries;
(12) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title
defects incurred or imposed, as applicable, in the
ordinary course of business and consistent with
industry practices;
(13) any interest or title of a lessor under any Capital
Lease Obligation;
(14) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber
documents and other property relating to such letters
of credit and products and proceeds thereof;
(15) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or
warranty requirements of the Company or any of its
Restricted Subsidiaries, including rights of offset
and set-off;
(16) Liens securing Hedging Obligations which Hedging
Obligations relate to Indebtedness that is otherwise
permitted under this Indenture;
(17) deposits by such Person, in each case incurred in the
ordinary course of business:
(a) under workmen's compensation laws,
unemployment insurance and other types of
social security legislation (other than any
Lien imposed by the Employer
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Retirement Income Security Act of 1974, as
amended);
(b) made in good faith in connection with bids,
tenders, contracts (other than for the
payment of Indebtedness) or leases to which
such Person is a party;
(c) to secure public or statutory obligations of
such Person or deposits or cash or Cash
Equivalents to secure surety or appeal bonds
to which such Person is a party; or
(d) as security for contested taxes or import or
customs duties or for the payment of rent;
(18) Liens imposed by law, including carriers',
warehousemens' and mechanics' Liens, in each case for
sums not yet delinquent or being contested in good
faith by appropriate proceedings if a reserve or
other appropriate provisions, if any, as shall be
required by GAAP shall have been made in respect
thereof;
(19) judgment Liens not giving rise to an Event of Default
so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been
duly initiated for the review of such judgment have
not been finally terminated or the period within
which such proceedings may be initiated has not
expired;
(20) Liens securing Indebtedness of a Restricted
Subsidiary owing to the Company or a Wholly Owned
Restricted Subsidiary (other than a Receivable
Entity);
(21) Liens securing the Notes and Subsidiary Guarantees
under this Indenture;
(22) Liens on assets transferred to a Receivables Entity
or on assets of a Receivables Entity, in either case
incurred in connection with a Qualified Receivables
Transaction;
(23) leases or subleases granted to others that do not
materially interfere with the ordinary course of
business of the Company and its Restricted
Subsidiaries; and
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(24) Liens arising from filing Uniform Commercial Code
financing statements regarding leases.
"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 of the Company or any of its Restricted Subsidiaries;
PROVIDED THAT:
(1) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in
connection therewith) except, in the case of the
Senior Credit Facilities, the principal amount of
such Permitted Refinancing Indebtedness does not
exceed the greater of:
(i) the principal amount of Indebtedness
permitted (whether or not borrowed) under
clause (1) of the second paragraph of
Section 1008; and
(ii) the amount actually borrowed or available to
be borrowed under the Senior Credit
Facilities;
(2) such Permitted Refinancing Indebtedness has a final
maturity date no earlier than the final maturity date
of, and has a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
and
(3) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes
on terms at least as favorable to the Holders of
Notes as those contained in the documentation
governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or agency or political
subdivision thereof (including any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business).
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"Principals" means Welsh Carson, Ferrer Freeman and their
respective Affiliates.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"PRO FORMA" includes, with respect to an acquisition or the
incurrence of Indebtedness in connection therewith, all adjustments, permitted
or required to be included pursuant to Article 11 of Regulation S-X and subject
to agreed-upon procedures to be performed by the Company's independent
accountants to determine whether the PRO FORMA calculations are made in
accordance with Article 11 of Regulation S-X.
"Purchase Date" means the settlement date specified by the
Company in an Asset Sale Offer or Change of Control Offer, which shall be within
five Business Days of the expiration date specified in such offer.
"Purchase Money Note" means a promissory note of a Receivables
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Restricted Subsidiary of the Company in connection with a Qualified
Receivables Transaction to a Receivables Entity, which note is repayable from
cash available to the Receivables Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors and
amounts owing to such investors and amounts paid in connection with the purchase
of newly generated accounts receivable.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries on an arms' length basis with the Standard
Securitization Undertakings pursuant to which the Company or any of its
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Restricted Subsidiaries may sell, convey or otherwise transfer to
(1) a Receivables Entity (in the case of a transfer by
the Company or any of its Restricted Subsidiaries);
or
(2) any other Person (in the case of a transfer by a
Receivables Entity)
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Company or any of its Restricted
Subsidiaries, and any assets related thereto including, without limitation, all
collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, the proceeds of
such receivables and other assets which are customarily transferred, or in
respect of which security interests are customarily granted in connection with
asset securitization involving accounts receivable; PROVIDED THAT the aggregate
consideration received in each such sale is at least equal to the aggregate fair
market value of the receivables transferred.
"Receivables Entity" means a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Restricted Subsidiary of
the Company makes an Investment and to which the Company or any Restricted
Subsidiary of the Company enters into a Qualified Receivables Transaction) which
engages in no activities other than the financing of a Qualified Receivables
Transaction and which is designated by the Board of Directors of the Company (as
provided below) as a Receivables Entity:
(1) no portion of Indebtedness or any other obligations
(contingent or otherwise) of such Person of which:
(a) is guaranteed by the Company or any
Restricted Subsidiary of the Company
(excluding guarantees of Obligations (other
than the principal, and interest, on
Indebtedness) pursuant to Standard
Securitization Undertakings);
(b) has recourse to or obligates the Company or
any Restricted Subsidiary of the Company in
any way other than pursuant to Standard
Securitization Undertakings; and
(c) subjects any property or asset of the
Company or any Restricted Subsidiary of the
Company, directly or indirectly,
contingently or otherwise, to the
satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(2) with which neither the Company nor any Restricted
Subsidiary of the Company has any contract,
agreement, arrangement or understanding other than
(a) a Qualified Receivables Transaction in the
ordinary course of business; and
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(b) fees payable in the ordinary course of
business in connection with servicing
accounts receivable both of which shall be
on terms no less favorable to the Company or
such Restricted Subsidiary than those that
might be obtained at the time from Persons
that are not Affiliates of the Company; and
(3) to which neither the Company nor any Restricted
Subsidiary of the Company has any obligation to
(a) subscribe for additional shares of Capital
Stock or other Equity Interests therein or
make any additional capital contributions or
similar payments or transfer thereto other
than in connection with a Qualified
Receivables Transaction; or
(b) maintain or preserve such entity's solvency,
any balance sheet term, financial condition,
level of income or cause such entity to
achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the 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.
"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 17, 1999, by and among the Company, the
Guarantors, Donaldson, Lufkin & Jenrette Securities Corporation and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regular Record Date" means each February 1 and August 1.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Certificate" has the meaning set forth in
Section 305.
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"Regulation S Global Note" has the meaning set forth in
Section 201.
"Regulation S Notes" has the meaning set forth in Section 201.
"Regulation S Permanent Global Note" has the meaning set forth
in Section 201.
"Regulation S Temporary Global Note" has the meaning set forth
in Section 201.
"Related Party" with respect to any Principal means:
(1) any controlling stockholder or partner, 80% (or more)
owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such
Principal; or
(2) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or
Persons beneficially holding a 51% or more
controlling interest of which consist of such
Principal and/or such other Persons referred to in
the immediately preceding clause.
"Reorganization Securities" means securities distributed to
Holders of the Notes in an Insolvency or Liquidation Proceeding pursuant to a
plan of reorganization consented to by each class of the Senior Indebtedness,
but only if in such plan of reorganization the Holders of the Notes on the one
hand and the Holders of the Senior Indebtedness on the other hand are placed in
separate and distinct classes from each other and from the classes of other
claimants and the class of the Holders of the Notes is junior to the class of
the Holders of the Senior Indebtedness and only if all of the terms and
conditions of such securities including, without limitation, term, tenor,
interest, amortization, subordination, standstills, covenants and defaults are
at least as favorable (and provide the same relative benefits) to the holders of
Senior Indebtedness and to the holders of any security distributed in such
Insolvency or Liquidation Proceeding on account of any such Senior Indebtedness
as the terms and conditions of
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the Notes and this Indenture are, and provide, to the holders of Senior
Indebtedness.
"Representative" means the Trustee, agent or representative
for any Senior Indebtedness.
"Responsible Officer" when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller 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 Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" has the meaning set forth in Section
1009.
"restricted period" has the meaning set forth in Section 201.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Notes" has the meaning set forth in Section 201.
"Rule 144A Global Note" has the meaning set forth in Section
201.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
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"Rule 904" means Rule 904 promulgated the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facilities" means the Credit Agreement, dated
August 17, 1999, among the Company, Holdings, the several lenders from time to
time parties thereto, The Chase Manhattan Bank, as Administrative Agent, Credit
Suisse First Boston and Fleet National Bank, as Co-Documentation Agents and DLJ
Capital Funding, Inc., as Syndication Agent, providing for revolving credit
borrowings, term loans and letters of credit, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced (whether or not with the original administrative agent
and lenders or another administrative agent or agents or other lenders) from
time to time including increases in principal amount.
"Senior Indebtedness" means:
(1) all Indebtedness outstanding under the Senior Credit
Facilities, including any Guarantees thereof and all
Hedging Obligations with respect thereto;
(2) any other Indebtedness permitted to be incurred by
the Company under the terms of this Indenture, unless
the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity
with or subordinated in right of payment to the
Notes; and
(3) all Obligations with respect to the preceding clauses
(1) and (2).
Notwithstanding anything to the contrary in the preceding,
Senior Indebtedness shall not include:
(1) any liability for federal, state, local or other
taxes owed or owing by the Company;
(2) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates;
(3) any trade payables; or
(4) any Indebtedness that is incurred in violation of
this Indenture.
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"Senior Indebtedness" of any Guarantor has a correlative meaning.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Standard Securitization Undertakings" means the interest
rate, representations, warranties, covenants, the events of default and
indemnities entered into by the Company or any Restricted Subsidiary of the
Company which shall be customary in securitization of accounts receivable
transactions and on market terms.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which payment of or
principal on such security is due and payable in the original documentation
governing such securities, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders Agreement" means the Stockholders Agreement,
dated August 17, 1999, among the Principals, Chase Capital Partners, certain
officers and employees of Donaldson, Lufkin & Jenrette Securities Corporation,
certain members of Holdings' management and Holdings.
"Subsidiary" means, with respect to any Person:
(1) 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);
(2) any partnership or limited liability Company (a) the
sole general partner or the managing general partner
or managing member of which
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is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or
of one or more
(3) any Permitted Joint Venture of such Person.
"Subsidiary Guarantee" means a Guarantee provided by a
Restricted Subsidiary.
"Transactions" refers to the occurrence of each of the
following transactions:
(1) the merger of Yankee Acquisition Corp, a wholly owned
subsidiary of Welsh Carson, with and into Holdings
(the "Merger");
(2) the solicitation and repurchase of $230.0 million
principal amount of Holdings' outstanding 4.5%
Convertible Subordinated Notes due 2003 and $97.8
million principal amount of Holdings' outstanding
6.0% Convertible Subordinated Notes due 2001
conditional upon the Merger,
(3) the contribution of all Holdings' assets and shares
in its subsidiaries to the Company;
(4) the $190.0 million offering of the Notes;
(5) the $216,230,000 (face value) offering by Holdings of
Holdings Senior Discount Debentures;
(6) the $375.0 million of borrowings under the Senior
Credit Facilities;
(7) the equity investment in Holdings of approximately
$370.1 million by Welsh Carson and some of its
affiliates, including the value, on the date of the
merger, of shares and 4.5% Convertible Subordinated
Notes due 2003 already owned by Welsh Carson;
(8) the cash equity investment in Holdings of
approximately $30.6 million by affiliates of Ferrer
Freeman;
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(9) the equity investment in Holdings of approximately
$23.0 million by Chase Capital Partners, certain
officers and employees of Donaldson, Lufkin &
Jenrette Securities Corporation and certain members
of Holdings' management and other investors; and
(10) the payment in full and termination of the $100.0
million Amended and Restated Credit Agreement, dated
as of February 20, 1998, among Holdings, the lenders
therein, FirstUnion National Bank, as administrative
agent, and Fleet National Bank, as documentation
agent,
of which (4) through (9) are conditions to the Merger.
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 305(g)(i).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Global Note" has the meaning set forth in
Section 201.
"Unrestricted Notes" has the meaning set forth in Section 201.
"Unrestricted Subsidiary" means any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
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(1) has no Indebtedness other than Non-Recourse Debt;
(2) 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;
(3) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct
or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or
preserve such Person's financial condition or to
cause such Person to achieve any specified levels of
operating results;
(4) has not guaranteed or otherwise directly or
indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its board of directors
that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director
or executive officer of the Company or any of its
Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by the covenant
described in Section 1009. If, at any time, any Unrestricted Subsidiary would
fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 1008, the Company
shall be in default of such covenant. 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 be
permitted only if: (1) such Indebtedness is permitted under Section 1008, and
(2) no Default or Event of Default would be in existence following such
designation.
-40-
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) 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
shall elapse between such date and the making of such
payment, by
(2) the then outstanding principal amount of such
Indebtedness.
"Welsh Carson" means Welsh, Carson, Anderson & Stowe VIII,
L.P. and its Affiliates.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person and/or by one or more Wholly Owned Subsidiaries of such Person.
"Wholly Owned Restricted Subsidiary" of the Company means a
Wholly Owned Subsidiary which is a Restricted Subsidiary of the Company.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
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Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as it may reasonably
request or as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
-42-
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
-43-
SECTION 104. ACTS OF HOLDERS; RECORD DATE.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Notes
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reli-
-44-
ance thereon, whether or not notation of such action is made upon such Note.
(e) The Company may set any day as a record day for the
purpose of determining the Holders of Outstanding Notes entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders, PROVIDED THAT the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Notes on such record date, and no other Holders, shall be entitled
to take the relevant action, whether or not such Holders remain Holders after
such record date; PROVIDED THAT no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Notes on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Notes
on such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; PROVIDED THAT no such action shall be effective
hereunder
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unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Notes on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder in the manner set
forth in Section 106.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED THAT no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so with regard to all or any part of the principal amount of such Note or by one
or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
(g) Notwithstanding any provision herein to the contrary, all
Notes issued under this Indenture shall vote and consent together on all matters
(as to which the Holders may vote or consent) as one class and no series of
Notes
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will have the right to vote or consent as a separate class on any matter.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
at United States Trust Company of New York, 114 West 47th Street, New
York, New York 10036-1532, Attention: Corporate Trust Administration,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Notice to the Trustee shall not be effective until it is
actually received.
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SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THERETO.
SECTION 113. LEGAL HOLIDAYS.
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In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, PROVIDED THAT to the extent such payment is
made on such next succeeding Business Day, no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity, as the case may be.
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Notes, the Subsidiary
Guarantees, 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 Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
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ARTICLE TWO
Note and Subsidiary Guarantee Forms
SECTION 201. FORMS GENERALLY.
The Notes (including the Trustee's certificates of
authentication) and the Subsidiary Guarantees endorsed thereon shall be in
substantially the forms set forth in Exhibit A and Exhibit C, respectively, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by 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 the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such Notes
or Subsidiary Guarantees, as evidenced by their execution of the Notes or
Subsidiary Guarantees, as the case may be.
The Definitive Notes and the Subsidiary Guarantees endorsed
thereon shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes and Subsidiary Guarantees, as the
case may be.
The Initial Notes are being offered and sold to QIBs in
reliance on Rule 144A ("Rule 144A Notes") or in offshore transactions in
reliance on Regulation S ("Regulation S Notes"). The Series A Notes may also be
exchanged, pursuant to Section 3(a)(9) under the Securities Act, for Series B
Notes that may be registered under the Securities Act pursuant to the Exchange
Offer ("Unrestricted Notes").
Rule 144A Notes initially shall be represented by one or more
Notes in registered global form without interest coupons (collectively, the
"Rule 144A Global Note"). The Rule 144A Global Note shall be deposited upon
issuance with the Trustee as custodian for The Depository Trust Company (the
"Depositary"), in New York, New York and registered in the name of the
Depositary or its nominee, in each case for credit to an account of a direct or
indirect participant in the Depositary.
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Regulation S Notes initially shall be represented by one or
more temporary Notes in registered global form without interest coupons
(collectively, the "Regulation S Temporary Global Note"). The Regulation S
Temporary Global Note shall be deposited on behalf of the subscribers thereof
with a custodian for the Depositary. The Regulation S Temporary Global Note
shall be registered in the name of a nominee of the Depositary for credit to the
subscribers' respective accounts at Euroclear System ("Euroclear") and CEDEL
Bank, S.A. ("CEDEL"). Beneficial interests in the Regulation S Temporary Global
Note may be held only through Euroclear or CEDEL.
Within a reasonable period of time after the expiration of the
restricted period pursuant to Rule 903 (the "restricted period"), the Regulation
S Temporary Global Note shall be exchanged for one or more permanent registered
global Notes without interest coupons (the "Regulation S Permanent Global Notes"
and, together with the Regulation S Temporary Global Note, the "Regulation S
Global Note") upon delivery to the Trustee of certification as provided in
Section 305(f) hereof. During the restricted period, beneficial interests in the
Regulation S Temporary Global Note may be held only through Euroclear or CEDEL
(as indirect participants in the Depositary), and, pursuant to the Depositary's
procedures, beneficial interests in the Regulation S Temporary Global Note may
not be transferred to a Person that takes delivery thereof in the form of an
interest in the Rule 144A Global Note. After the restricted period, (i)
beneficial interests in the Regulation S Permanent Global Notes may be
transferred to a Person that takes delivery in the form of an interest in the
Rule 144A Global Note and (ii) beneficial interests in the Rule 144A Global Note
may be transferred to a Person that takes delivery in the form of an interest in
the Regulation S Permanent Global Notes, PROVIDED, that the certification
requirements described in Section 305(e) hereof are complied with.
Unrestricted Notes initially shall be represented by one or
more Notes in registered global form without interest coupons (collectively, the
"Unrestricted Global Notes"). The Unrestricted Global Note shall be deposited
with the Trustee as custodian for the Depositary in New York, New York and
registered in the name of the Depositary
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or its nominee, in each case for credit to an account of a direct or indirect
participant in the Depositary.
ARTICLE THREE
The Notes
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $190.0 million,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 906 or 1108 or in connection with an Asset Sale Offer or Change of Control
Offer pursuant to Sections 1015 or 1014, respectively.
The Initial Notes shall be known and designated as the "13%
Series A Senior Subordinated Notes due 2009" of the Company and the Exchange
Notes shall be known and designated as the "13% Series B Senior Subordinated
Notes due 2009" of the Company. Their Stated Maturity shall be August 15, 2009
and they shall bear interest at the rate of 13% per annum and interest shall be
payable in cash semi-annually in arrears on February 15 and August 15,
commencing on February 15, 2000. The Company shall make each interest payment to
the holders of record on the immediately preceding February 1 and August 1 until
the principal thereof is paid or made available for payment, and at the rate of
13% per annum on any overdue principal and premium, if any, and on any overdue
installment of interest and Liquidated Damages, if any, until paid.
The Notes shall be senior subordinated unsecured obligations
of the Company, are subordinated in right of payment to all existing and future
Senior Indebtedness of the Company and shall rank senior or PARI PASSU in right
of payment with all existing and future subordinated Indebtedness of the
Company.
Holders shall be entitled to the benefits of the Subsidiary
Guarantees.
If a Holder has given wire transfer instruction to the
Company, the Company shall make all principal, premium
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and interest payment on the Holder's Notes in accordance with such instruction.
All other payments of the principal of (and premium, if any) and interest (and
Liquidated Damages, if any) on the Notes shall be payable at the office or
agency of the Paying Agent and Registrar within the City and State of New York
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Note Register.
The Company initially appoints the Trustee as the Paying Agent
and the Registrar. The Company may change the Paying Agent or Registrar without
prior notice to the Holders, and the Company or any of its Subsidiaries may act
as Paying Agent or Registrar. The Company shall notify the Trustee in writing of
the name and address of any Registrar or Paying Agent not a party to this
Indenture.
The Notes shall be subject to repurchase by the Company
pursuant to an Asset Sale Offer or Change of Control Offer, respectively, as
provided in Sections 1015 and 1014.
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Chief Executive Officer or one of its
Vice Presidents, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of
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the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY NOTES.
Pending the preparation of Definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the Definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidenced by their execution of
such Notes.
If temporary Notes are issued, the Company shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at any office or agency
of the Company designated pursuant to Section 1002, without charge to the
Holder. Upon surrender for
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cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations. Until so exchanged the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes. The Trustee is hereby
appointed "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided.
Upon surrender for registration of transfer of any Note at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denominations and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligation of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or
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be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive
Notes are presented to the Note Registrar with a request (x) to register the
transfer of such Definitive Notes or (y) to exchange such Definitive Notes for
an equal principal amount of Definitive Notes of other authorized denominations,
the Note Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Notes surrendered for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the
Company and the Note Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Notes that
are Definitive Notes, shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Note is being
delivered to the Note Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form set
forth on the reverse of the Note); or
(B) if such Transfer Restricted Note is being
transferred to a QIB that is aware that any sale of Notes to
it shall be made in reliance on Rule 144A under the Securities
Act and that is acquiring such Transfer Restricted Note for
its own account or for the account of another such QIB a
certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Note);
or
(C) if such Transfer Restricted Note is being
transferred pursuant to an exemption from registration in
accordance with Rule 144, or
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outside the United States in an offshore transaction in
compliance with Rule 904, or pursuant to an effective
registration statement under the Securities Act, a
certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Note);
or
(D) if such Transfer Restricted Note is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act and with all
applicable securities laws of the States of the United States,
a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Note)
and an Opinion of Counsel from the Holder reasonably
acceptable to the Company, the Trustee, and to the Note
Registrar to the effect that such transfer is in compliance
with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE. A Definitive Note may not be exchanged for
a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer Restricted
Note, certification, in substantially the form set forth on the reverse
of the Note, that such Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a
Transfer Restricted Note, written instructions directing the Trustee to
make, or to direct the Notes Custodian to make, an endorsement on the
Global Note to reflect an increase in the aggregate principal amount of
the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Notes Custodian, the
aggregate principal amount of Notes represented by the
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Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Company shall issue and the Trustee shall authenticate a new
Global Note in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. Except as set forth in clause (d) through (f), a Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
DEFINITIVE NOTE.
(i) A Global Note is exchangeable for Definitive
Notes in registered certificated form if (A) the Depositary (x)
notifies the Company that it is unwilling or unable to continue as
depositary for the Global Note and the Company thereupon fails to
appoint a successor depositary or (y) has ceased to be a clearing
agency registered under the Exchange Act, (B) the Company, at its
option, notifies the Trustee in writing that it elects to cause the
issuance of the Notes in certificated form or (C) there shall have
occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default with
respect to the Notes. In all cases, Definitive Notes delivered in
exchange for any Global Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depositary (in accordance with its
customary procedures) and shall bear the applicable restrictive legend,
unless the Company determines otherwise in compliance with applicable
law.
(ii) Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person
having a beneficial
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interest in a Global Note, and upon receipt by the Trustee of a written
instruction or such other form of instructions as is customary for the
Depositary or the Person designated by the Depositary as having such a
beneficial interest in a Transfer Restricted Note only, upon receipt of
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 Depositary as
being the beneficial owner, a certification from the
transferor to that effect (in substantially the form set forth
on the reverse of the Note); or
(B) if such beneficial interest is being
transferred to a QIB that is aware that any sale of Notes to
it shall be made in reliance on Rule 144A and that is
acquiring such beneficial interest in the Transfer Restricted
Note for its own account or the account of another such QIB, a
certification to that effect from the transferor (in
substantially the form set forth on the reverse of the Note);
or
(C) if such beneficial interest is being
transferred pursuant to an exemption from registration in
accordance with Rule 144, or outside the United States in an
offshore transaction in compliance with Rule 904, or pursuant
to an effective registration statement under the Securities
Act, a certification from the transferor to that effect (in
substantially the form set forth on the reverse of the Note);
or
(D) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act and in
accordance with all applicable securities laws of the States
of the United States, a certification to that effect from the
transferor (in substantially the form set forth on the reverse
of the Note) and an Opinion of Counsel from the transferee or
transferor reasonably acceptable to the Company and to the
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Note Registrar to the effect that such transfer is in
compliance with the Securities Act,
then the Trustee shall cause, or direct the Notes Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Notes Custodian, the aggregate principal amount of the Global
Note to be reduced accordingly and, following such reduction, the Company shall
execute and, upon receipt of a Company Order, the Trustee shall authenticate and
deliver to the transferee a Definitive Note with the appropriate legend, if
necessary, in the appropriate principal amount.
(e) EXCHANGES BETWEEN REGULATION S NOTES AND RULE 144A NOTES.
Prior to the expiration of the restricted period, beneficial interests in the
Regulation S Temporary Global Note may not be transferred to a Person who takes
delivery in the form of an interest in a Rule 144A Global Note. After the
expiration of the restricted period, beneficial interests in Regulation S
Permanent Global Notes may be transferred to a Person who takes delivery in the
form of an interest in a Rule 144A Global Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person having a
beneficial interest in the Regulation S Permanent Global Note, then the Trustee
shall cause, or direct the Notes Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Notes Custodian, the aggregate principal amount of the Regulation S Permanent
Global Note to be decreased and the aggregate principal amount of the Rule 144A
Global Note to be increased by the principal amount of the beneficial interest
in the Regulation S Permanent Global Note to be exchanged, to credit, or cause
to be credited, to the account of the transferor a beneficial interest in the
Rule 144A Global Note equal to the reduction in the aggregate principal amount
of the Regulation S Permanent Global Note, and to debit, or cause to be debited,
from the account of the transferor the beneficial interest in the Regulation S
Permanent Global Note that is being exchanged or transferred.
Prior to the expiration of the restricted period, beneficial
interests in the Rule 144A Global Note may not be transferred to any Person that
takes delivery thereof in the form of an interest in the Regulation S Temporary
Global
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Note. After the expiration of the restricted period, beneficial interests in the
Rule 144A Global Note may be transferred to a Person who takes delivery in the
form of an interest in the Regulation S Permanent Global Note only upon receipt
by the Trustee of a written certification from the transferor to the effect that
such transfer is being made in accordance with Rule 904. Upon receipt by the
Trustee of written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf of
any Person having a beneficial interest in the Rule 144A Global Note, then the
Trustee shall cause, or direct the Notes Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Notes Custodian, the aggregate principal amount of the Rule 144A Global Note to
be decreased and the aggregate principal amount of the Regulation S Permanent
Global Note to be increased by the principal amount of the beneficial interest
in the Rule 144A Global Note to be exchanged, to credit, or cause to be
credited, to the account of the transferor a beneficial interest in the
Regulation S Permanent Global Note equal to the reduction in the aggregate
principal amount of the Rule 144A Global Note, and to debit, or cause to be
debited, from the account of the transferor the beneficial interest in the Rule
144A Global Note that is being exchanged or transferred.
(f) RESTRICTIONS ON TRANSFER AND EXCHANGE OF REGULATION S
TEMPORARY GLOBAL NOTES. A holder of a beneficial interest in a Regulation S
Temporary Global Note must provide Euroclear or CEDEL, as the case may be, with
a certificate in the form set forth in Exhibit B certifying that the beneficial
owner of the interest in the Regulation S Temporary Global Note is either not a
U.S. Person (as defined in Regulation S) or has purchased such interest in a
transaction that is exempt from the registration requirements under the
Securities Act (the "Regulation S Certificate"), and Euroclear or CEDEL, as the
case may be, must provide to the Trustee (or to the Paying Agent if other than
the Trustee) a certificate in the form set forth in Exhibit B prior to (i) the
payment of interest or principal with respect to such holder of beneficial
interests in the Regulation S Temporary Global Note and (ii) any exchange of
such beneficial interest for a beneficial interest in a Regulation S Permanent
Global Note.
(g) LEGENDS.
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(i) Except as permitted by the following paragraphs
(iv) and (v), each Note certificate evidencing the Global
Notes and the Definitive Notes (and all Notes issued in
exchange therefor or substitution thereof) shall bear a legend
in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED 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"), OR (B) IT HAS ACQUIRED THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (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) 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 (F) 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 NOTE OR AN INTEREST HEREIN IS
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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) Except as permitted by the following paragraphs
(iii), (iv) and (v), each Regulation S Temporary Global Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the form set forth in the form of Note attached
to this Indenture.
(iii) Except as permitted by the following paragraphs
(iv) and (v), each Regulation S Permanent Global Note (and all Notes
issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the form set forth in the form of Note attached
to this Indenture.
(iv) Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note represented by
a Global Note) pursuant to Rule 144 or an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted
Note, the Note Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note
that does not bear the legend set forth in (i), (ii) or (iii)
above and rescind any restriction on the transfer of such
Transfer Restricted Note; and
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(B) any such Transfer Restricted Note
represented by a Global Note shall not be subject to the
provisions set forth in (i), (ii) or (iii) above (such sales
or transfers being subject only to the provisions of Section
305(c) hereof); PROVIDED, HOWEVER, that with respect to any
request for an exchange of a Transfer Restricted Note that is
represented by a Global Note for a Definitive Note that does
not bear a legend, which request is made in reliance upon Rule
144, the Holder thereof shall certify in writing to the Note
Registrar that such request is being made pursuant to Rule 144
(such certification to be in substantially the form set forth
on the reverse of the Note).
(v) Any Exchange Notes issued in connection with the
Exchange Offer shall not bear the legend set forth in (i), (ii) or (iii) above
and the Trustee shall rescind any restriction on the transfer of such Exchange
Notes.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTE. At such
time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes or beneficial interests in other Global Notes, redeemed,
repurchased or canceled, such Global Note shall be returned to or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes or a
beneficial interest in another Global Note, redeemed, repurchased or canceled,
the principal amount of Notes represented by such Global Note shall be reduced
and an endorsement shall be made on such Global Note, by the Trustee or the
Notes Custodian, at the direction of the Trustee, to reflect such reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
DEFINITIVE NOTES. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive Notes and
Global Notes at the Note Registrar's request.
(j) GENERAL. No service charge shall be made for any
registration of transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
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Notes, other than exchanges pursuant to Section 304, 906 or 1108 or in
accordance with any Asset Sale Offer or Change of Control Offer pursuant to
Section 1015 or 1014, respectively, not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
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expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date immediately preceding such Interest
Payment Date.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of
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money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Section 307) interest (and Liquidated Damages, if any) on such
Note and for all other purposes whatsoever, whether or not such Note be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Notes surrendered for payment, redemption, registration of
transfer or exchange or any Asset Sale Offer or Change of Control Offer pursuant
to Section 1015 or 1014, respectively shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Notes held by the Trustee
shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. CUSIP AND ISIN NUMBERS.
The Company in issuing Notes may use "CUSIP" and "ISIN"
numbers (if then generally in use) in addition to serial numbers; if so, the
Trustee shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers
in notices
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of redemption and repurchase as a convenience to Holders; PROVIDED THAT any such
notice may state that no representation is made as to the correctness of such
CUSIP and ISIN numbers either as printed on the Notes or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on the
serial or other identification numbers printed on the Notes, and any such
redemption or repurchase shall not be affected by any defect in or omission of
such CUSIP and ISIN numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) shall become due and payable at their Stated
Maturity within one year, or
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(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest (and Liquidated
Damages, if any) to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402, the provisions
of Sections 303, 305 and 306 and the last paragraph of Section 1003 shall
survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest
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(and Liquidated Damages, if any) for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default for 30 days in the payment when due of
interest on the Notes whether or not prohibited by
Article Thirteen;
(2) default in payment when due of the principal of or
premium, if any, on the Notes, whether or not
prohibited by Article Thirteen;
(3) failure by the Company to comply with the provisions
in Section 1014, Section 1015, Section 1009, Section
1008 or Section 801;
(4) failure by the Company for 60 days after notice from
the Trustee or Holders of at least 25% in principal
amount of the Notes then outstanding voting as a
single class to comply with any of its other
agreements in this Indenture or the Notes;
(5) 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 borrowed
money or Guarantee 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
now exists, or is
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created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of
or premium, if any, on such Indebtedness
prior to the expiration of the grace period
provided in such Indebtedness on the date of
such default (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 $20 million or more;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in
excess of $20 million, which judgments are not paid,
discharged or stayed for a period of 60 days entry of
such judgment or judgments;
(7) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee;
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in
respect of the Company or any of its Restricted
Subsidiaries that are Significant Subsidiaries of the
Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any
such Subsidiary a bankrupt or
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insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any
such Subsidiary under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official of the Company or any such Subsidiary or of
any substantial part of the property of the Company
or any such Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any such
Subsidiary, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive
days; and
(9) the commencement by the Company or any of its
Restricted Subsidiaries that are Significant
Subsidiaries of the Company of a voluntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent
by the Company or any such Subsidiary to the entry of
a decree or order for relief in respect of the
Company or any of its Restricted Subsidiaries that
are Significant Subsidiaries of the Company in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against the Company or any such Subsidiary
of the Company, or the filing by the Company or any
such Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company
or any such Subsidiary to the filing of such petition
or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
any of its Restricted Subsidiaries that are
Significant Subsidiaries of the Company or of
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any substantial part of the property of the Company
or any of its Restricted Subsidiaries that are
Significant Subsidiaries of the Company, or the
making by the Company or any of its Restricted
Subsidiaries that are Significant Subsidiaries of the
Company of an assignment for the benefit of
creditors, or the admission by the Company or any
such Subsidiary in writing of its inability to pay
its debts generally as they become due, or the taking
of corporate action by the Company or any such
Significant Subsidiary in furtherance of any such
action.
In the event of a declaration of acceleration of the Notes
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (5) of this Section 501,
the declaration of acceleration of the Notes shall be automatically annulled if
the Holders of any Indebtedness described in clause (5) of this Section 501 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 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 Notes that became due
solely because of the acceleration of the Notes, have
been cured or waived.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Notes may
declare the principal of the Notes to be due and payable immediately; provided,
that so long as any Indebtedness permitted to be incurred pursuant to the Senior
Credit Facilities shall be outstanding, such acceleration shall not be effective
until the earlier of:
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(1) an acceleration of any such Indebtedness under the
Senior Credit Facilities, or
(2) five business days after receipt by the Company and
the Chase Manhattan Bank as Administrative Agent to
the Senior Credit Facilities at The Chase Manhattan
Bank, 270 Park Avenue, New York, New York 10017,
Attention: Stephen Rochford (or to such other
Administrative Agent as the Trustee may hereafter be
notified in writing) of written notice of such
acceleration (PROVIDED THAT the notification of the
replacement Administrative Agent and its address
shall be received by the Trustee prior to the
issuance of such notice of acceleration).
Notwithstanding the preceding paragraph, in the case of an
Event of Default described in clause (8) or (9) of Section 501, with respect to
the Company or any of its Subsidiaries, the principal and any accrued but unpaid
interest on all Outstanding Notes shall become due and payable immediately
without further action or notice.
In the case of any Event of Default occurs on or after August
15, 2004 by reason of any willful action or inaction taken or not taken by or on
behalf of the Company with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 1101 hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to August 15,
2004 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, an additional premium shall
also become immediately due and payable to the extent permitted by law upon
acceleration of the Notes in an amount, for each of the years beginning on
August 15 of the years set forth below, as set forth below (such total amount
due is expressed as a percentage of the principal amount of the Notes on the
date of payment that would otherwise be due but for the provisions of this
sentence):
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YEAR PERCENTAGE
1999.................................................. 113.000%
2000.................................................. 111.700%
2001.................................................. 110.400%
2002.................................................. 109.100%
2003.................................................. 107.800%
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate principal amount of the Outstanding Notes or the holders
of a supermajority in aggregate principal amount of the Notes with respect to a
default in respect of any provision requiring a supermajority for an amendment
to such provision, as the case may be, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if (1) the
Company has paid or deposited with the Trustee a sum sufficient to pay (A) all
overdue interest on the Notes,(B) the principal of (and premium, if any, on) any
Notes which have become due otherwise than by such declaration of acceleration
(including any Notes required to have been purchased on the Purchase Date
pursuant to an Offer to Purchase made by the Company) and interest thereon at
the rate provided therefor in the Notes,(C) interest upon overdue interest at
the rate provided therefor in the Notes, and(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and (2) all existing Events of
Default, other than the non-payment of the principal of, premium, if any, and
interest (and Liquidated Damages, if any) on the Notes which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent Default or
impair any right consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest (and
Liquidated Damages, if any) on any Note when such interest (and
Liquidated Damages, if any) becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof or, with respect
to any Note required to have been purchased pursuant to an Asset Sale
Offer or Change of Control Offer made by the Company, at the Purchase
Date thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal (and premium, if any) and interest (and Liquidated Damages, if any),
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest and Liquidated Damages, at the rate provided by the Notes, and, in
addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such judicial proceedings as the Trustee shall deem
appropriate,
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whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Notes), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized and directed by each Holder to make such
payments to the Trustee and, in the event that the Trustee requests the making
of such payments directly to the Holders, is authorized and directed to pay to
the Trustee any amount due 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 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding,
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a Trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be
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brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest (or Liquidated Damages, if any), upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest (and Liquidated
Damages, if any) on the Notes in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Notes for principal (and premium, if any) and interest (and Liquidated
Damages, if any), respectively; and
THIRD: To the Company or to such party as a court of competent
jurisdiction may direct.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
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(2) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest (and Liquidated Damages, if any) on such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date or in the case of an Asset Sale Offer or
Change of Control Offer made by the Company and required to be accepted as to
such Note, on the Purchase Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, PROVIDED THAT
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or involve the Trustee in personal
liability, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any existing Default hereunder and its consequences, except a default with
respect to any provision requiring a supermajority to amend, which default may
only be waived by such a supermajority, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest (or Liquidated Damages, if any) on any Note (including any
Note which is required to have been purchased pursuant to an Asset Sale
Offer or Change of Control Offer which has been made by the Company),
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
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.
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SECTION 514. 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,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs, including reasonable attorney's fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
PROVIDED, that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or the Company.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which 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 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 had
been enacted.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
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(a) The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need undertake to perform only those duties as
are specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates 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 shall have no liability except for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 601.
(2) 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.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith
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in accordance with a direction received by it pursuant to Section 512.
SECTION 602. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as the
board of directors, the executive committee or a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, Note, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) 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 in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) 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 pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, Note, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable prior
notice, to examine the books, records and premises of the Company,
personally or by agent or attorney, at such reasonable times as
reasonably requested; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee
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assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of the Notes or the proceeds thereof.
SECTION 605. MAY HOLD NOTES.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section
607, the Trustee shall have a lien prior to the Notes on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(8) or (9) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall eliminate such
conflict within 90 days, apply to the Commission for permission to continue or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and a Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus
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of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition, any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
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property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company shall furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee
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that neither the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as to the names
and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange and any delisting thereof.
SECTION 704. REPORTS BY COMPANY.
Whether or not required by the Commission, so long as any
Notes are outstanding, the Company shall furnish or make available to the
Holders, within the time periods specified in the Commission's rules and
regulations:
(1) all quarterly and annual financial information that
would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-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 on the
annual financial statements by the Company's
certified independent accountants; and
(2) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company
were required to file such reports.
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and
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annual financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section, of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company.
In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, whether or not required by
the Commission, the Company shall file a copy of all the information and reports
referred to in clauses (1) and (2) above with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission shall not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company shall, for so long as any Notes remain
outstanding, furnish to the 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.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
The Company may not: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation); or (2)
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related transactions, to another
Person unless:
(1) either: (a) the Company is the surviving corporation;
or (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made
is a corporation organized or existing under the
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laws of the United States, any state thereof or the
District of Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company)
or the Person to which such sale, assignment,
transfer, conveyance or other disposition shall have
been made expressly assumes all the obligations of
the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(3) immediately after giving PRO FORMA effect to such
transaction no Default or Event of Default exists;
and
(4) the Company or Person formed by or surviving any such
consolidation or merger (if other than the Company),
or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made,
(a) shall, 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 1008; or
(b) would (together with its Restricted
Subsidiaries) have a higher Fixed Charge
Coverage Ratio immediately after such
transaction (after giving PRO FORMA effect
thereto as if such transaction had occurred
at the beginning of the applicable
four-quarter period) than the Fixed Charge
Coverage Ratio of the Company and its
Subsidiaries immediately prior to the
transaction.
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The preceding clause (4) shall not prohibit:
(a) a merger between the Company and a Wholly
Owned Subsidiary; or
(b) a merger between the Company and an
Affiliate incorporated solely for the
purpose of reincorporating the Company in
another state of the United States;
so long as, in each case, the amount of Indebtedness of the Company and its
Restricted Subsidiaries is not increased thereby.
In addition, the Company may not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. This Section 801 is not applicable to
a sale, assignment, transfer, conveyance or other disposition of assets between
or among the Company and any of its Wholly Owned Restricted Subsidiaries.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer, conveyance, sale, lease or other disposition is made shall
succeed to and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named therein as the Company herein, and thereafter (except
in the case of a lease), the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.
SECTION 803. TRANSFER OF SUBSIDIARY ASSETS.
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For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Subject to Section 1312, without the consent of any Holders,
the Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to provide for the assumption of the Company's
obligations to Holders in the case of a merger or
consolidation or the sale of all or substantially all
of the Company's assets;
(4) to make any change that would provide any additional
rights or benefits to the Holders or that does not
adversely affect the legal rights under this
Indenture of any such Holder;
(5) to comply with requirements of the Commission in
order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act;
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(6) to provide for the issuance of additional Notes in
accordance with the limitations set forth in this
Indenture; or
(7) to allow any Subsidiary to guarantee the Notes.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to Section 1312, with the consent of the Holders of
not less than a majority in aggregate principal amount of the Outstanding Notes,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of amending or
supplementing this Indenture or any supplemental indenture or modifying the
rights of the Holders; PROVIDED, HOWEVER, that no such modification may, without
the consent of Holders of at least 75% in aggregate principal amount of Notes at
the time outstanding, modify the provisions of Article Thirteen in a manner
adverse to the Holders; and PROVIDED THAT no such modification may, without the
consent of each Holder thereby:
(1) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the Stated Maturity
of any Note or alter the provisions with respect to
the redemption of the Notes (other than Sections 1014
or 1015);
(3) reduce the rate of or change the time for payment of
interest on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the
Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver
of the payment default that resulted from such
acceleration);
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(5) make any Note payable in money other than that stated
in the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of
Holders to receive payments of principal of or
premium, if any, or interest on the Notes;
(7) waive a redemption payment with respect to any Note
(other than a payment under Sections 1014 or 1015);
(8) make any change in the preceding amendment and waiver
provisions; or
(9) release any Guarantor from any of its obligations
under its Guarantee of the Notes or this Indenture,
except in accordance with the terms of this
Indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
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Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the principal of
(and premium, if any) and any interest (and Liquidated Damages, if any) on the
Notes in accordance with the terms of the Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
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The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Notes may be presented or surrendered for any or 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.
SECTION 1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it shall, on or before each due date of the principal of (and premium, if any)
or interest (and Liquidated Damages, if any) on any of the Notes, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest (and Liquidated Damages,
if any) so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it
shall, prior to each due date of the principal of (and premium, if any) or
interest (and Liquidated Damages, if any) on any Notes, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
(and Liquidated Damages, if any) so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium, interest or
Liquidated Damages, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest (and Liquidated Damages, if any)
on Notes in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any Default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest (and Liquidated Damages, if
any); and
(3) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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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 (and
premium, if any) or interest (and Liquidated Damages, if any) on any Note and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, 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 publication, any unclaimed balance of
such money then remaining shall be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight and Section 1015, the Company and its
Restricted Subsidiaries shall do or cause to be done all things necessary to
preserve and keep in full force and effect their existence, rights (charter and
statutory) and franchises; PROVIDED, HOWEVER, that the Company and Restricted
its Subsidiaries shall not be required to preserve any such right or franchise
if the Board of Directors of the Company in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company or its Restricted Subsidiaries and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
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The Company shall cause all properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary of the
Company to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined by the Board of Directors of
the Company in good faith, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Restricted Subsidiaries or upon the income, profits or property of the Company
or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Restricted Subsidiaries; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders.
SECTION 1007. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Restricted Subsidiaries
to, keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible or in the case of insurance coverage, to self insure in each case to
the extent, in the judgment of the Company, to do so comports with good business
practice.
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SECTION 1008. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE
OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock or preferred stock
and shall not permit any of its Restricted Subsidiaries to issue any
Disqualified Stock or preferred stock, PROVIDED, HOWEVER, that the Company may
incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or
preferred stock and the Company's Restricted Subsidiaries may incur Indebtedness
(including Acquired Debt) and issue Disqualified Stock or preferred stock if the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock or preferred stock is issued (i) for such dates from
the Issue Date up to but not including September 30, 2000, would have been at
least 2 to 1; (ii) for such dates from September 30, 2000 up to but not
including March 31, 2001, would have been at least 2.25 to 1; and (iii)
thereafter would have been at least 2.50 to 1; each 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 or
preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.
As long as no Default shall have occurred and be continuing or
would be caused thereby, the first paragraph of this Section 1008 shall not
prohibit the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(l) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness and letters
of credit pursuant to the Senior Credit Facilities;
PROVIDED THAT the aggregate amount of all
Indebtedness of the Company and the Guarantors
outstanding under the Senior Credit Facilities after
giving effect to such incurrence does not exceed an
amount equal to $475 million at any one time;
(2) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
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(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the
Subsidiary Guarantees;
(4) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness represented
by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case incurred for
the purpose of financing all or any part of the
purchase price or cost of construction or improvement
of property, plant or equipment used in the business
of the Company or such Restricted Subsidiary (whether
through the direct purchase of assets or the Capital
Stock of any Person owning such Assets), in an
aggregate principal amount or accreted value, as
applicable, not to exceed $15 million at any time
outstanding;
(5) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness)
that was permitted by this Indenture to be incurred
under the first paragraph of this covenant or clauses
(3) or (14) of this Section 1008;
(6) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness
between or among the Company and any of its
Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(a) if the Company or any Guarantor is the
obligor on such Indebtedness, such
Indebtedness must be expressly subordinated
to the prior payment in full in cash of all
Obligations with respect to the Notes, in
the case of the Company, or the Subsidiary
Guarantee of such Guarantor, in the case of
a Guarantor; and
(b) (i) any subsequent issuance or transfer of
Equity Interests that results in any such
Indebtedness being held by a Person other
than the Company or a Wholly Owned
Restricted 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 Restricted Subsidiary shall be
deemed, in each case, to constitute an
incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as
the case may be, that was not permitted by
this clause (6);
(7) the incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations that
are incurred for the purpose of hedging interest rate
risk with respect to any Indebtedness that is
permitted by the terms of this Indenture to be
outstanding;
(8) the Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a
Restricted Subsidiary of the Company that was
permitted to be incurred by another provision of this
Section 1008;
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(9) the incurrence by the Company's Unrestricted
Subsidiaries of Non-Recourse Debt; PROVIDED, HOWEVER,
that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such
event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the
Company that was not permitted by this clause (9);
(10) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued
in the ordinary course of business, including without
limitation to 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;
PROVIDED, HOWEVER, that upon the drawing of such
letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within
30 days following such drawing or incurrence;
(11) 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 in connection with the disposition of any
business, asset or Subsidiary, other than guarantees
of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or Subsidiary
for the purpose of financing such acquisition;
PROVIDED THAT (a) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted
Subsidiary (contingent obligations referred to in a
footnote or footnotes to financial statements and not
otherwise reflected on the balance sheet shall not be
deemed to be reflected on such balance sheet for
purposes of this clause (a) and (b) the maximum
aggregate liability in respect of such Indebtedness
shall at no time exceed the gross proceeds including
non-cash proceeds (the fair market value of such
non-cash proceeds being measured at the time received
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and without giving effect to any such subsequent
changes in value) actually received by the Company
and/or such Restricted Subsidiary in connection with
such disposition;
(12) obligations in respect of performance, surety and
similar bonds and completion guarantees provided by
the Company or any Restricted Subsidiary in the
ordinary course of business;
(13) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or
similar instrument (except in the case of daylight
overdrafts) drawn against insufficient funding in the
ordinary course of business, PROVIDED, HOWEVER, that
such Indebtedness is extinguished within five
business days of incurrence; and
(14) the incurrence by the Company or any of its
Restricted Subsidiaries of additional Indebtedness,
including Attributable Debt incurred after the Issue
Date, in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any other
Indebtedness incurred pursuant to this clause (14),
not to exceed $25 million.
For purposes of determining compliance with this Section 1008,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through
(14) above or is entitled to be incurred pursuant to the first paragraph of this
covenant, the Company shall be permitted to classify such item of Indebtedness
in any manner that complies with this covenant. In addition, the Company may, at
any time, change the classification of an item of Indebtedness (or any portion
thereof) to any other clause or to the first paragraph hereof PROVIDED THAT the
Company would be permitted to incur such item of Indebtedness (or the portion
thereof) pursuant to such other clause or the first paragraph hereof, as the
case may be, at such time of reclassification. Accrual of interest, accretion or
amortization of original issue discount and the accretion of accreted value
shall not be deemed to be an incurrence of Indebtedness for purposes of this
covenant.
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SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment
or distribution on account of the Company's or any of
its Restricted Subsidiaries' Equity Interests
(including, without limitation, any payment on such
Equity Interests in connection with any merger or
consolidation involving the Company) or to the direct
or indirect holders of the Company's or any of its
Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or
distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for
value (including without limitation, in connection
with any merger or consolidation involving the
Company) any Equity Interests of the Company or any
direct or indirect parent 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);
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the
Notes or the Subsidiary Guarantees, except scheduled
payments of interest or principal at Stated Maturity
thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in clauses (1) through (4)
above being collectively referred to as "Restricted
Payments"),
unless, at the time of and after giving effect to such
Restricted Payment:
(1) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence
thereof;
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(2) the Company would, after giving PRO FORMA effect
thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first
paragraph of Section 1008; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries after the
Issue Date (excluding Restricted Payments permitted
by clauses (1) through (6),(12),(14) and (15) of the
next succeeding paragraph), is less than the sum,
without duplication, of:
(a) 50% of the Consolidated Net Income of the
Company for the period (taken as one
accounting period) from the beginning of the
first full fiscal quarter commencing after
the Issue Date to the end of the Company's
most recently ended fiscal quarter for which
internal financial statements are available
at the time of such Restricted Payment (or,
if such Consolidated Net Income for such
period is a deficit, less 100% of such
deficit); plus
(b) 100% of the aggregate net proceeds
(including the fair-market value of property
other than cash, provided, that fair market
value of property other than cash shall be
determined in good faith by the Board of
Directors of the Company whose resolution
with respect thereto shall be delivered to
the Trustee and such determination must be
based upon an opinion or appraisal issued by
an accounting, appraisal or investment
banking firm of national standing if such
fair market value exceeds $35 million)
received by the Company as a contribution to
the Company's capital or received by the
Company from the issue
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or sale since the Issue Date of Equity
Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock
or debt securities of the Company that have
been converted into such Equity Interests
(other than Equity Interests (or
Disqualified Stock or debt securities) sold
to a Restricted Subsidiary of the Company
and other than Disqualified Stock or
convertible debt securities that have been
converted into Disqualified Stock); plus
(c) to the extent that any Restricted Investment
that was made after the Issue Date is sold
for cash or otherwise liquidated or repaid
for cash, the lesser of (i) the cash return
of capital with respect to such Restricted
Investment (less the cost of disposition, if
any) and (ii) the initial amount of such
Restricted Investment; plus
(d) the amount by which Indebtedness of the
Company or its Restricted Subsidiaries is
reduced on the Company's balance sheet upon
the conversion or exchange subsequent to the
Issue Date of any Indebtedness of the
Company convertible or exchangeable for
Equity Interests (other than Disqualified
Stock) of the Company (less the amount of
any cash, or other property, distributed by
the Company or any Restricted Subsidiary
upon such conversion or exchange); plus
(e) if any Unrestricted Subsidiary pays any cash
dividends or cash distributions to the
Company or any of its Restricted
Subsidiaries, 100% of any such cash
dividends or cash distributions made after
the Issue Date.
So long as no Default has occurred and is continuing or would
be caused thereby, the preceding provisions shall not prohibit:
(1) 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;
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(2) the redemption, repurchase, retirement, defeasance or
other acquisition of any pari passu or subordinated
Indebtedness or Equity Interests of the Company or
any Restricted Subsidiary in exchange for, or out of
the net cash proceeds of the substantially concurrent
sale or issuance (other than to a Subsidiary of the
Company) of, other Equity Interests of the Company
(other than Disqualified Stock); PROVIDED THAT the
amount of any such net cash proceeds that are
utilized for such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded
from clause (3)(b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness of the
Company or any Restricted Subsidiary with the net
cash proceeds from an incurrence of Permitted
Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its
Equity Interests on a PRO RATA basis regardless of
whether any Default has occurred or is continuing;
(5) the redemption, repurchase, acquisition or retirement
of Equity Interests in a Permitted Joint Venture of
the Company or of any of the Company's Restricted
Subsidiaries in accordance with the organizational
documents for, and agreements among holders of Equity
Interests in, such Permitted Joint Venture, PROVIDED
THAT as a result of such redemption, repurchase,
acquisition or retirement, such Permitted Joint
Venture shall become a Wholly Owned Restricted
Subsidiary of the Company and a Guarantor under this
Indenture;
(6) the redemption, repurchase, acquisition or retirement
of Equity Interests in and Indebtedness of the
Development Corporations in accordance with the
respective securities purchase agreements entered
into and notes issued by such Development
Corporations; PROVIDED THAT as a result of such
redemption, repurchase, acquisition or retirement,
such Development Corporations shall become Wholly
Owned Restricted Subsidiaries of the Company and
Guarantors under this Indenture;
(7) the purchase, redemption or other acquisition,
cancellation or retirement for value of Equity
Interests of the Company or any Restricted Subsidiary
of the Company or any parent of the Company held by
any existing or former employees of the Company or
Holdings or any Subsidiary of the Company or their
assigns, estates or heirs, in each case in connection
with the repurchase provisions under employee stock
option or stock purchase agreements or other
agreements to compensate management
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employees; PROVIDED THAT such redemptions or
repurchases pursuant to this clause shall not exceed
$2 million in any calendar year with unused amounts
in any calender year being carried over to succeeding
calendar years subject to a maximum of $10 million in
any calendar year; PROVIDED THAT the amount of any
such payments will be included in subsequent
calculations of the amount of Restricted Payments;
(8) loans or advances to employees or directors of the
Company or Holdings or any Subsidiary of the Company
made in the ordinary course of business the proceeds
of which are used to purchase Capital Stock of the
Company or Holdings, in an aggregate amount not to
exceed $5 million at any one time outstanding;
PROVIDED THAT the amount of any such payments will be
included in subsequent calculations of the amount of
Restricted Payments;
(9) repurchases of Capital Stock deemed to occur upon the
exercise of stock options if such Capital Stock
represents a portion of the exercise price thereof;
PROVIDED THAT the amount of any such payments will be
included in subsequent calculations of the amount of
Restricted Payments;
(10) if immediately before and immediately after giving
effect thereto, no Default or Event of Default has
occurred and the Company would have been permitted to
incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 1008,
payments of cash dividends to Holdings in an amount
sufficient to enable Holdings to make semi-annual
payments after August 15, 2004 of cash interest of
14% per annum on the principal amount of Holdings
Senior Discount Debentures (or 100 basis points
higher if required to be made in respect of the
Holdings Senior Discount Debentures in accordance
with the terms thereof in effect on the Issue Date),
provided that Holdings is otherwise unable to pay
such interest and such dividends are applied directly
to the payment of such
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interest; and PROVIDED FURTHER, that the amount of
any such payments shall be included in subsequent
calculations of the amount of Restricted Payments;
(11) if immediately before and immediately after giving
effect thereto no Default or Event of Default has
occurred, payments of principal, interest, premium
(if any) or payment due upon redemption, repurchase,
conversion, acquisition or retirement of Holdings'
6.0% Convertible Subordinated Notes due 2001 and 4.5%
Convertible Subordinated Notes due 2003 in accordance
with the respective terms thereof in effect on the
Issue Date; PROVIDED THAT the amount of any such
payments shall be included in subsequent calculations
of the amount of Restricted Payments; PROVIDED THAT
the amount of any such payments will be included in
subsequent calculations of the amount of Restricted
Payments;
(12) payments to Holdings in an amount equal to the amount
of income tax that the Company and the Restricted
Subsidiaries would have paid had they filed
consolidated tax returns on a separate Company basis
in any given year, less the amount of such taxes paid
or to be paid directly by the Company and the
Restricted Subsidiaries for such years;
(13) an amount not to exceed $1.0 million in any fiscal
year to permit Holdings to pay:
(i) franchise taxes and other fees required to
maintain its legal existence; and
(ii) its corporate overhead expenses incurred in the
ordinary course of business, its audit
expenses, any filing fees required by the
Commission and to pay salaries or other
compensation of employees who perform services
for both Holdings and the Company;
PROVIDED THAT the amount of any such payments will be included
in subsequent calculations of the amount of Restricted
Payments;
(14) Permitted Investments;
(15) distributions to fund the Transactions; and
(16) other Restricted Payments in an aggregate amount not
to exceed $5 million at any one time;
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PROVIDED THAT the amount of any such payments will be
included in subsequent calculations of the amount of
Restricted Payments.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined in good
faith by the Board of Directors of the Company whose resolution with respect
thereto shall be delivered to the Trustee. The Board of Directors' determination
must be based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if such fair market value exceeds
$20 million. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 1009 were computed, together with a copy
of any fairness opinion or appraisal required by this Indenture.
SECTION 1010. LIMITATIONS ON DIVIDENDS AND OTHER
PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (i) on
its Capital Stock or (ii) with respect to any other
interest or participation in, or measured by, its
profits;
(2) pay any Indebtedness owed to the Company or any of
the Company's Restricted Subsidiaries;
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(3) make loans or advances to the Company or any of the
Company's Restricted Subsidiaries; or
(4) transfer any of its properties or assets to the
Company or any of the Company's Restricted
Subsidiaries.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue
Date, including:
(a) the Senior Credit Facilities as in effect as
of the Issue Date, and any amendments,
modifications, restatements, renewals,
increases, supplements, refundings,
replacements or refinancings thereof,
PROVIDED THAT such amendments,
modifications, restatements, renewals,
increases, supplements, refundings,
replacements or refinancings are no more
restrictive, taken as a whole (as determined
in the good faith judgment of the Company's
Board of Directors), with respect to such
dividend and other payment restrictions than
those contained in the Senior Credit
Facilities as in effect on the Issue Date;
and
(b) this Indenture and the Notes;
(2) any applicable law, rule, regulation or order;
(3) any instrument governing 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 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
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the Person, or the property or assets of the Person,
so acquired, PROVIDED THAT, in the case of
Indebtedness, such Indebtedness was permitted by the
terms of this Indenture to be incurred;
(4) customary non-assignment provisions in leases entered
into in the ordinary course of business and
consistent with past practices;
(5) any Purchase Money Note or other Indebtedness or
contractual requirements incurred with respect to a
Qualified Receiveables Transaction relating
exclusively to a Receiveables Entity that, in the
good faith determination of the Board of Directors of
the Company, are necessary to effect such Qualified
Receiveables Transaction;
(6) purchase money obligations for property acquired in
the ordinary course of business that impose
restrictions on the property so acquired of the
nature described in the last clause of the preceding
paragraph;
(7) restrictions with respect solely to a Restricted
Subsidiary of the Company imposed pursuant to a
binding agreement which has been entered into for the
sale or disposition of all or substantially all of
the Capital Stock or assets of such Restricted
Subsidiary, PROVIDED THAT such restrictions apply
solely to the Capital Stock or assets being sold of
such Restricted Subsidiary;
(8) provisions with respect to the disposition or
distribution of assets or property in connection with
Permitted Joint Ventures entered into in accordance
with past practice made in the ordinary course of
business;
(9) Permitted Refinancing Indebtedness, PROVIDED THAT the
material restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are
no more restrictive, in the good faith judgment of
the Company's Board of Directors, taken as a whole,
to the Holders than those contained in
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the agreements governing the Indebtedness being
refinanced; and
(10) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in
the ordinary course of business.
Notwithstanding the foregoing, neither (a) customary
provisions restricting subletting or assignment of any lease entered into in the
ordinary course of business, consistent with industry practice, nor (b) Liens
permitted under the terms of this Indenture shall in and of themselves be
considered a restriction on the ability of the applicable Restricted Subsidiary
to transfer such agreement or assets, as the case may be.
SECTION 1011. LIMITATION ON LIENS SECURING INDEBTEDNESS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien of any kind securing trade payables,
Attributable Debt or Indebtedness that does not constitute Senior Indebtedness
(other than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired unless:
(1) in the case of Liens securing Indebtedness that is
expressly subordinated or junior in right of payment
to the Notes, the Notes are secured on a senior basis
to the obligations so secured until such time as such
obligations are no longer secured by a Lien; and
(2) in all other cases, the Notes are secured on an equal
and ratable basis with the obligations so secured
until such time as such obligations are no longer
secured by a Lien.
SECTION 1012. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets
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from, or enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate or any affiliated professional associations or professional
corporations which employ physicians and other professionals who provide
healthcare services for the Company's occupational and health services centers
(each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company
or such Restricted Subsidiary made on an arm's-length
basis with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions
involving aggregate consideration in excess
of $5 million, a resolution of the Board of
Directors set forth in an Officers'
Certificate certifying that such Affiliate
Transaction complies with clause (1) above
and that such Affiliate Transaction has been
approved by a majority of the disinterested
members of the Board of Directors of the
Company; and
(b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions
involving aggregate consideration in excess
of $15 million, an opinion as to the
fairness to the holders of such Affiliate
Transaction from a financial point of view
issued by an accounting, appraisal or
investment banking firm of national
standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the prior
paragraph:
(1) customary directors' fees to Persons who are not
otherwise Affiliates of the Company;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) the payment of Affiliate Management Fees in an amount
in any calendar year not to exceed
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the greater of (a) $1 million and (b) 1% of
Consolidated EBITDA;
(4) payments by the Company or any of its Restricted
Subsidiaries to Welsh Carson, Ferrer Freeman and
their respective Affiliates made for any financial
advisory, financing, underwriting or placement
services or in respect of other investment banking
activities, including, without limitation, in
connection with acquisitions or divestitures, which
payments are approved in good faith by a majority of
the Board of Directors of the Company or a committee
thereof consisting of disinterested members;
(5) loans or advances to employees in accordance with
past practice made in the ordinary course of business
which are approved in good faith by a majority of the
Board of Directors of the Company or a committee
thereof consisting of disinterested members;
(6) any agreement as in effect on the Issue Date or any
amendment thereto (so long as any such amendment is
no less favorable to the Company and its Restricted
Subsidiaries);
(7) the existence of, or the performance by the Company
or any of its Restricted Subsidiaries of its
obligations under the terms of, the Merger Agreement
(including any registration rights agreement or
purchase agreement related thereto) to which it is a
party on the Issue Date and any similar agreements
which it may enter into thereafter; PROVIDED,
HOWEVER, that the existence of, or the performance by
the Company or any of its Restricted Subsidiaries of
obligations under any future amendment to any such
existing agreement or under any similar agreement
entered into after the Issue Date shall only be
permitted by this clause;
(8) the payment of all fees and expenses related to the
Transactions, including fees to Welsh Carson and
Ferrer Freeman;
(9) any payment pursuant to any tax sharing agreement
between the Company and Holdings or any other Person
with which the Company is required or permitted to
file a consolidated tax return or with which the
Company is or could be part of a consolidated,
combined or unitary group for tax purposes; PROVIDED
THAT in no event shall the amount permitted to be
paid pursuant to all such agreements exceed the tax
liabilities attributable solely to the Company and
its Restricted Subsidiaries (whether as a
consolidated, combined or unitary group);
(10) Restricted Payments that are permitted by Section
1009;
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(11) customary fees and compensation paid to, and
indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any of its
Restricted Subsidiaries; and
(12) any transaction involving ordinary course investment
banking, merchant banking, commercial banking or
related activities.
Notwithstanding the foregoing, the Holders will be entitled to
receive payment in full in cash of all amounts due or to become due in respect
of the Notes before any payment is made with respect to Affiliate Management
Fees in the event of any distribution to creditors of the Company in any
Insolvency or Liquidation Proceeding with respect to the Company. No payments of
Affiliate Management Fees shall be made by the Company or any of its Restricted
Subsidiaries if the Fixed Charge Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which Affiliate Management Fees are
to be paid is less than 1.75 to 1 PROVIDED, HOWEVER, that such payments due but
not paid shall accrue and shall be paid only after such time as the Fixed Charge
Coverage Ratio for a four full fiscal quarter period is no longer less than or
equal to 1.75 to 1.
SECTION 1013. LIMITATION ON ISSUANCES AND SALES OF
EQUITY INTERESTS IN RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose
of any Equity Interests in any Restricted Subsidiary or to issue any of its
Equity Interests (other than, if necessary, Equity Interests constituting
directors' qualifying shares) to any Person except:
(1) to the Company or a Wholly Owned Subsidiary (other
than a Receivables Entity); or
(2) in compliance with Section 1015 and immediately after
giving effect to such issuance or sale, such
Restricted Subsidiary would continue to be a
Restricted Subsidiary.
Notwithstanding the preceding paragraph, the Company may sell
all the Equity Interests of a Restricted Subsidiary as long as the Company
complies with Section 1015.
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SECTION 1014. REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A
CHANGE OF CONTROL.
(i) Upon the occurrence of a Change of Control, each Holder
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 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 thereon, if any, to the Purchase Date
(the "Change of Control Payment"). Within 60 Business Days following any Change
of Control, the Company shall mail a notice to each Holder stating:
(a) that the Change of Control Offer is being made
pursuant to this Section 1014 and that all Notes
tendered shall be accepted for payment;
(b) that the Change of Control Offer shall remain open
for 20 Business Days;
(c) the Purchase Price and the Purchase Date;
(d) that any Note not tendered shall continue to accrue
interest;
(e) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Purchase Date;
(f) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be
required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent
at the address specified in the notice prior to the
close of business on the third Business Day preceding
the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than
the close of business on the
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second Business Day preceding the Purchase Date, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his
election to have the Notes purchased; and
(h) that Holders whose Notes are being purchased only in
part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple
thereof.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relating to such
Change of Control Offer, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
described in this Indenture by virtue thereof.
(2) By 12:00 p.m. (noon) Eastern Time on the Purchase
Date, the Company shall, to the extent lawful:
(a) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control
Offer;
(b) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or
portions thereof so tendered; and
(c) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the
Company.
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The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; PROVIDED THAT each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Purchase Date.
(3) If the Purchase Date hereunder is on or after an interest
payment Record Date and on or before the associated Interest Payment Date, any
accrued and unpaid interest (and Liquidated Damages, if any) due on such
Interest Payment Date shall be paid to the Person in whose name a Note is
registered at the close of business on such Record Date, and such interest (and
Liquidated Damages, if applicable) shall not be payable to Holders who tender
the Notes pursuant to such Change of Control Offer.
(4) Prior to making a Change of Control Offer pursuant to
paragraph (a), but in any event within 90 days following such Change of Control,
the Company shall (i) obtain any required consents, if any, under all agreements
governing outstanding Senior Indebtedness to permit the making of the Change of
Control Offer and the purchase of Notes pursuant to this Section 1014, or (ii)
repay all or a portion of the outstanding Senior Indebtedness to the extent
necessary (including, if necessary, payment in full of such Indebtedness and
payment of any prepayment premiums, fees, expenses or penalties) to permit the
repurchase of the Notes pursuant to this Section 1015 without such consent.
(5) Notwithstanding anything to the contrary in this Section
1014, the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 1014 hereof and all other provisions of this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
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SECTION 1015. REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON AN
ASSET SALE.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) 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 issued or
sold or otherwise disposed of;
(2) such fair market value is determined by the Company's
Board of Directors and evidenced by a resolution of
the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee PROVIDED THAT
the Board of Directors' determination must be based
on an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national
standing if such fair market value exceeds $35
million; and
(3) at least 75% of the consideration therefor received
by the Company or such Restricted Subsidiary is in
the form of cash or Cash Equivalents. For purposes of
this provision, each of the following shall be deemed
to be cash:
(a) any liabilities (as shown on the Company's
or the Restricted Subsidiary's most recent
balance sheet) of the Company or any
Restricted Subsidiary (other than contingent
liabilities and liabilities that are by
their terms subordinated to the Notes or any
Subsidiary Guarantee), 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; and
(b) any securities, notes or other obligations
received by the Company or any such
Restricted Subsidiary from such transferee
that are contemporaneously (subject to
ordinary settlement periods) converted by
the Company or such Restricted Subsidiary
into cash or Cash Equivalents (to the
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extent of the cash received in that
conversion).
The 75% limitation referred to above shall not apply to any
Asset Sale in which the cash or Cash Equivalents portion of the consideration
received therefrom, determined in accordance with the preceding sentence, is
equal to or greater than what the after-tax proceeds would have been had such
Asset Sale complied with the 75% limitation.
Within 270 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any such Restricted Subsidiary may apply such Net
Proceeds, at its option:
(1) to repay or repurchase Senior Indebtedness of the
Company or any Restricted Subsidiary;
(2) to acquire all or substantially all the assets of, or
a majority of the Voting Stock of, another Permitted
Business;
(3) to make a capital expenditure in a Permitted
Business;
(4) to acquire other assets (other than securities) that
are used or useful in a Permitted Business; or
(5) to make an Asset Sale Offer, treating the Net
Proceeds as Excess Proceeds for all purposes.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds". When the aggregate amount of Excess Proceeds exceeds $15 million, the
Company shall be required to make an offer to all Holders of Notes (an "Asset
Sale Offer") to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
shall be equal to 100% of the principal amount plus accrued and unpaid interest,
if any, to the Purchase Date, and shall be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
such Excess Proceeds for general corporate purposes. If the aggregate principal
amount of Notes tendered into such Asset
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Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relating to such
Asset Sale Offer, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations
described in this Indenture by virtue thereof.
SECTION 1016. INVESTMENT COMPANY.
The Company shall not, and shall not permit any of its
Subsidiaries to, be required to register as an "Investment Company" (as that
term is defined in the Investment Company Act of 1940, as amended), or otherwise
become subject to registration under the Investment Company Act.
SECTION 1017. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to incur Indebtedness or Guarantee or pledge any assets
to secure the payment of any Indebtedness of the Company or any Restricted
Subsidiary unless either such Restricted Subsidiary (1) is a Guarantor or (2)
simultaneously executes and delivers a supplemental indenture to this Indenture
and becomes a Guarantor, which Guarantee shall (a) with respect to any Guarantee
of Senior Indebtedness, be subordinated in right of payment on the same terms as
the Notes are subordinated to such Senior Indebtedness and (b) with respect to
any Guarantee of any other Indebtedness, be senior to or PARI PASSU with such
Restricted Subsidiary's other Indebtedness or Guarantee of or pledge to secure
such other Indebtedness.
Notwithstanding the preceding paragraph, any Subsidiary
Guarantee of the Notes shall provide by its terms that it shall be automatically
and unconditionally released and discharged:
(1) in connection with any sale or other disposition of
all or substantially all of
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the assets of that Guarantor (including by way of
merger or consolidation) if the Company applies the
Net Proceeds of that sale or other disposition in
accordance with the applicable provisions of this
Indenture; or
(2) in connection with the sale of all of the Capital
Stock of a Guarantor if the Company applies the Net
Proceeds of that sale in accordance with the
applicable provisions of this Indenture; or
(3) if the Company designates such Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary.
SECTION 1018. ADDITIONAL GUARANTEES.
If the Company shall acquire or create a Restricted Subsidiary
after the Issue Date, or if any Subsidiary of the Company becomes a Restricted
Subsidiary, then such newly acquired or created Restricted Subsidiary (other
than a Permitted Joint Venture) shall become a Guarantor and execute a
supplemental indenture that subjects such Person to the provisions of this
Indenture as a Guarantor and the Company shall deliver an Opinion of Counsel to
the Trustee, in accordance with the terms of this Indenture, stating that such
supplemental indenture and such Person's obligations under its Subsidiary
Guarantee and this Indenture constitute valid, legal, binding and enforceable
obligations of such Person (subject to customary exceptions concerning
creditors' rights and to equitable principles as may be acceptable to the
Trustee).
SECTION 1019. LIMITATION ON LINES OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than a Permitted Business.
SECTION 1020. ANTI-LAYERING.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, incur, create, issue,
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assume, guarantee or otherwise become liable for any Indebtedness that is both:
(1) subordinate or junior in right of payment to any
Senior Indebtedness; and
(2) senior in any respect in right of payment to the
Notes.
No Guarantor shall incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is both:
(1) subordinate or junior in right of payment to any
Senior Indebtedness of such Guarantor; and
(2) senior in any respect in right of payment to the
Subsidiary Guarantees.
SECTION 1021. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
PROVIDED THAT the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:
(1) the Company or such Restricted Subsidiary could have
(a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback
transaction under the Fixed Charge Coverage Ratio
test in the first paragraph of Section 1008 and (b)
incurred a Lien to secure such Indebtedness pursuant
to Section 1011;
(2) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the fair market
value, as determined in good faith by the Board of
Directors of the Company and set forth in an
Officers' Certificate delivered to the Trustee, of
the property that is the subject of such sale and
leaseback transaction; and
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(3) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company applies
the proceeds of such transaction in compliance with
Section 1015.
SECTION 1022. [NOT USED]
SECTION 1023. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would
not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, all outstanding Investments owned by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated shall be deemed to be Restricted Payments at the time of such
designation (to the extent not designated a Permitted Investment) and shall
reduce the amount available for Restricted Payments under the first paragraph of
Section 1009. All such outstanding Investments shall be valued at their fair
market value at the time of such designation, as determined in good faith by the
Board of Directors of the Company. That designation shall only be permitted if
such Restricted Payment would be permitted at that time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors of the Company may redesignate any Unrestricted Subsidiary to
be a Restricted Subsidiary if the redesignation would not cause a Default.
SECTION 1024. ADVANCES OF SUBSIDIARIES.
All advances to Restricted Subsidiaries made by the Company
after the Issue Date shall be evidenced by intercompany notes in favor of the
Company in the form of Exhibit D. Each intercompany note shall be payable upon
demand and shall bear interest at the same rate as the Notes.
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SECTION 1025. PAYMENTS FOR CONSENTS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid and is paid to all
Holders 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 1026. STATEMENT BY OFFICERS AS TO
DEFAULT; COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year an Officers' Certificate, stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
Section 801 or Sections 1004 to 1025, inclusive, and if the Company shall be in
default, specifying all such Defaults and the nature and status thereof of which
they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware or
should reasonably become aware of the occurrence of a Default or an Event of
Default, an Officers' Certificate setting forth the details of such Default or
Event of Default, and the action which the Company proposes to take with respect
thereto.
(c) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
Company shall deliver to the Trustee within 90 days after the end of each fiscal
year a written statement by the Company's independent public accountants stating
(A) that their audit examination has included a review of the terms of this
Indenture and the Notes as they relate to accounting matters, and (B) whether,
in connection with their audit examination, any Default has come to their
attention and, if such a Default has come to their attention, specifying the
nature and period of the existence thereof.
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SECTION 1027. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 801 and Sections 1004 to 1025, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Notes shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; PROVIDED, HOWEVER, with respect to any provision requiring a
supermajority approval to waive, such provision may only be waived by such a
supermajority, and with respect to a covenant or provision which cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected, such provision may only be waived by the consent of each and every
Holder of outstanding Note affected.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. OPTIONAL REDEMPTION.
At any time prior to August 15, 2002, the Company may on one
or more occasions redeem up to 25% of the aggregate principal amount of Notes
originally issued under this Indenture at a Redemption Price of 113% of the
principal amount thereof, plus accrued and unpaid interest to the Redemption
Date, with the net cash proceeds of one or more Equity Offerings; PROVIDED THAT:
(1) at least 75% of the aggregate principal amount of
Notes remains outstanding immediately after the
occurrence of such redemption (excluding Notes held
by the Company and its Subsidiaries); and
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(2) the redemption must occur within 90 days of the date
of the closing of such Equity Offering.
Except pursuant to the preceding paragraphs, the Notes shall
not be redeemable at the Company's option prior to August 15, 2004.
After August 15, 2004, the Company may redeem all or a part of
these Notes, upon not less than 30 nor more than 60 days' notice, at the
Redemption Prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon, to the applicable Redemption Date, if
redeemed during the twelve-month period beginning on August 15 of the years
indicated below:
Year Percentage
2004 106.500%
2005 104.875%
2006 103.250%
2007 101.625%
2008 and thereafter 100.000%
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
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SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Notes, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Notes to be redeemed. In the case
of any redemption of Notes prior to the expiration of any restriction on such
redemption provided in the terms of such Notes or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select Notes for redemption, not more than 60 days prior to
the Redemption Date, as follows:
(1) if the Notes are listed, in compliance with the
requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if the Notes are not so listed, on a PRO RATA basis,
by lot or by such method as the Trustee shall deem
fair and appropriate.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
Notes and portions of Notes selected shall be in amounts of
$1,000 or whole multiples of $1,000; except that if all of the Notes of a Holder
are to be redeemed, the entire outstanding amount of Notes held by such Holder,
even if not a multiple of $1,000, shall be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed, and in the
case of partial redemption, a statement to the effect that upon
surrender of such Notes, a new Note in a principal amount equal to the
unredeemed portion thereof shall be issued upon cancellation of the
original note;
(4) that on the Redemption Date the Redemption Price shall
become due and payable upon each such Note to be redeemed;
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price; and
(6) the CUSIP number of the Notes to be redeemed.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company if the Company gives
notice to the Trustee at least 45 days prior to the Redemption Date.
Notices of redemption may not be conditional.
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SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any applicable accrued
interest and Liquidated Damages on, all the Notes which are to be redeemed on
that date. The Trustee or the Paying Agent shall no later than 30 days after the
expiration of the Redemption Date 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 any applicable accrued interest
and Liquidated Damages on, all Notes to be redeemed.
SECTION 1107. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued interest) such Notes or portions of them called for redemption shall not
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with any applicable accrued interest and Liquidated Damages to the
Redemption Date; provided, however, that installments of interest whose Interest
Payment Date is on or prior to the Redemption Date shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Note.
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SECTION 1108. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. COMPANY'S OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option and at any time, by Board
Resolution elect to have either Section 1202 or 1203 hereof be applied with
respect to the Outstanding Notes upon compliance with the conditions set forth
below in this Article Twelve.
SECTION 1202. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
1201 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Notes and the
Guarantors shall be deemed to have been discharged from their obligations under
the Subsidiary Guarantees on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding Notes
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and
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the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except as to (i) rights of Holders to receive payments
in respect of the principal of, premium, if any, and interest (and Liquidated
Damages, if any) on such Notes when such payments are due from the trust funds;
(ii) the Company's obligations with respect to such Notes concerning Sections
304, 305, 306, 1002 and 1003; (iii) the rights, powers, trust, duties, and
immunities of the Trustee, and the Company's obligations in connection
therewith; and (iv) the Legal Defeasance provisions of this Article Twelve, all
of which shall survive until otherwise terminated or discharged hereunder.
Subject to compliance with this Article Twelve, the Company may exercise its
option under this Section 1202 notwithstanding the prior exercise of its option
under Section 1203.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
1201 applicable to this Section, the Company may, at its option and at any time,
elect to have the obligations of the Company and the Guarantors released with
respect to its (i) obligations under Sections 1005 through 1025, inclusive, and
clause (4) of Section 801 and (ii) the occurrence of an event specified in
Sections 501(4), (with respect to any of Sections 1005 through 1025, inclusive),
501(5) and 501(6) shall not be deemed to be a Default, an Event of Default on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
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 Section or clause,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or clause or by reason of any reference in any such Section or
clause to any other provision herein or in any other document, but the remainder
of this Indenture and such Notes shall be unaffected thereby.
SECTION 1204. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
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The following shall be the conditions to application of either
Section 1202 or Section 1203 to the then Outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Notes, in
U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as shall be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest, Liquidated Damages, if
any, on the Outstanding Notes on the Stated Maturity of the Notes or on
the applicable Redemption Date, as the case may be, and the Company
must specify whether the Notes are being defeased to maturity or to a
particular Redemption Date;
(2) in the case of an election of Legal Defeasance under
Section 1202, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that (a) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (b) since
the Issue Date, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, subject to customary
assumptions and exclusions, the Holders of the Outstanding Notes shall
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and shall be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election of Covenant Defeasance under
Section 1203, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and
exclusions, the Holders of the Outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and shall be subject to federal income tax on
the same
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amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) 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;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company or
with the intent of preferring the Holders over the other creditors of
the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(7) no event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Notes or
any other Notes shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in paragraphs
(8) or (9) of Section 501, at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day); and
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, which opinion may be
subject to customary assumptions and exclusions, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance under Section 1202 or the Covenant Defeasance under Section
1203 (as the case may be) have been complied with.
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SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 1204 in respect of the Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Notes, of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest
(and Liquidated Damages, if any), but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1204 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 1206. REINSTATEMENT.
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If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1202 or 1203 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, or if a Default from a bankruptcy or insolvency
event occurs at any time during the period ending on the 91st day after the date
of a deposit by the Company hereunder, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Twelve until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1202 or 1203; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of (and premium, if any) or interest (and Liquidated Damages, if any)
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or the Paying Agent.
ARTICLE THIRTEEN
Subordination
SECTION 1301. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by the Notes and all Obligations in
respect of the Notes (including but not limited to Liquidated Damages) are
subordinated in right of payment, to the extent and in the manner provided in
this Article Thirteen, to the prior payment in full in cash of all Senior
Indebtedness (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Indebtedness.
SECTION 1302. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution of assets of the Company upon any
Insolvency or Liquidation Proceeding:
(1) the holders of all Senior Indebtedness of the Company
shall be entitled to receive payment in full in cash or Cash
Equivalents before the Holders shall be
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entitled to receive any payment on account of the principal of,
premium, if any, and interest on the Notes or any Obligation in respect
to the Notes (except that Holders may receive (i) Reorganization
Securities and (ii) payments made from any defeasance trust created
pursuant to Section 1201 hereof); and
(2) any payment or distribution of assets of the Company of
any kind or character from any source, whether in cash, property or
securities (other than (i) Reorganization Securities and (ii) payments
made from any defeasance trust created pursuant to Section 1201
hereof), to which the Holders or the Trustee on behalf of the Holders
would be entitled (by set-off or otherwise), except for this Article,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution, or by the Holders or by the Trustee if received by them,
directly to the holders of Senior Indebtedness (PRO RATA to such
holders on the basis of the amounts of Senior Indebtedness held by such
holders) or their Representative or Representatives, as their interests
may appear, for application to the payment of the Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in
full in cash, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior
Indebtedness.
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SECTION 1303. DEFAULT ON SENIOR INDEBTEDNESS.
(a) In the event of and during the continuation of any default
in the payment of principal of, interest or premium, if any, on any Senior
Indebtedness, or any Obligation owing from time to time under or in respect of
Senior Indebtedness, or in the event that any event of default (other than a
payment default) with respect to any Senior Indebtedness shall have occurred and
be continuing and shall have resulted in such Senior Indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, then no payment shall be made by or on behalf of
the Company on account of principal of, premium, if any, and interest (and
Liquidated Damages, if any) on the Notes (other than payments in the form of
Reorganization Securities), unless and until such default shall have been cured
or waived in writing in accordance with the instruments governing such Senior
Indebtedness or such acceleration shall have been rescinded or annulled;
(b) If any event of default other than as described in clause
(a) above with respect to any Designated Senior Indebtedness shall have occurred
and be continuing permitting the holders of such Designated Senior Indebtedness
(or their Representative or Representatives) to declare such Designated Senior
Indebtedness due and payable prior to the date on which it would otherwise have
become due and payable, then no payment shall be made by or on behalf of the
Company on account of the principal of, premium, if any, and interest (and
Liquidated Damages, if any) on the Notes (other than payments in the form of
Reorganization Securities) during the period (a "Payment Blockage Period")
commencing on the date the Company or the Trustee receives written notice (a
"Payment Notice") of such event of default (which notice shall be binding on the
Trustee and the Holders as to the occurrence of such a payment default or
nonpayment event of default) from the Credit Agent (or other holders of
Designated Senior Indebtedness or their Representative or Representatives) and
ending on the earliest of:
(A) 179 days after such date;
(B) the date, if any, on which such Designated
Senior Indebtedness to which such default
relates is paid in full in cash or
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such default is cured or waived in writing
in accordance with the instruments governing
such Designated Senior Indebtedness by the
holders of such Designated Senior
Indebtedness; and
(C) the date on which the Trustee receives
written notice from the Credit Agent (or
other holders of Designated Senior
Indebtedness or their Representative or
Representatives), as the case may be,
terminating the Payment Blockage Period.
(c) During any consecutive 360-day period, the aggregate of
all Payment Blockage Periods shall not exceed 179 days and there shall be a
period of at least 181 consecutive days in each consecutive 360-day period when
no Payment Blockage Period is in effect. No event of default which existed or
was continuing with respect to the Senior Indebtedness for which notice
commencing a Payment Blockage Period was given on the date such Payment Blockage
Period commenced shall be or be made the basis for the commencement of any
subsequent Payment Blockage Period unless such event of default is cured or
waived for a period of not less than 90 consecutive days.
SECTION 1304. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
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SECTION 1305. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that, notwithstanding the other provisions of
this Article Thirteen, the Trustee receives any payment or distribution in
respect of the Notes or of any Obligations with respect to the Notes at a time
when the Trustee has received notice in accordance with Section 1310 that such
payment or distribution is prohibited by Section 1303 hereof, such payment or
distribution shall be held by the Trustee in trust for the benefit of, and shall
be paid forthwith over and delivered, upon written request, to, the holders of
Senior Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments representing any of such Senior Indebtedness may have
been issued, ratably according to aggregate principal amounts remaining unpaid
on account of such Senior Indebtedness held or represented by each, for
application to the payment of all obligations with respect to Senior
Indebtedness remaining unpaid, to the extent necessary to pay or to provide for
the payment of all such obligations in full in cash or Cash Equivalents in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
In the event that, notwithstanding the other provisions of
this Article Thirteen, a Holder receives any payment or distribution of any
Obligations with respect to the Notes at a time when such payment or
distribution is prohibited by Section 1303 hereof, such payment or distribution
shall be paid forthwith over and delivered, upon written request, to, the
holders of Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments representing any of such Senior
Indebtedness may have been issued, ratably according to aggregate principal
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by such, for application to the payment of all obligations with
respect to Senior Indebtedness remaining unpaid, to the extent necessary to pay
or to provide for the payment of all such obligations in full in cash or Cash
Equivalents in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
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With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article Thirteen, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Thirteen, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
SECTION 1306. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article Thirteen, but
failure to give such notice shall not affect the subordination of the Notes to
the Senior Indebtedness as provided in this Article Thirteen.
SECTION 1307. SUBROGATION.
After all Senior Indebtedness is paid in full in cash or Cash
Equivalents and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness PARI PASSU with the Notes) to
the rights of holders of Senior Indebtedness to receive distributions applicable
to Senior Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Indebtedness. A distribution
made under this Article Thirteen to holders of Senior Indebtedness that
otherwise would have been made to Holders is not, as between the Company and
Holders, a payment by the Company on the Notes. No holder of Senior Indebtedness
shall be obligated to create, warrant, preserve or protect any such subrogation
right or shall suffer any loss or diminution of its rights hereunder if for any
reason such right of subrogation is not available to any Holder.
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SECTION 1308. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and
holders of Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of (and premium, if any) and interest (and Liquidated Damages, if any)
on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal
of (or premium, if any) or interest (or Liquidated Damages, if any) on a Note on
the due date, the failure is still a Default or Event of Default.
SECTION 1309. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any holder of Senior Indebtedness to comply with this Indenture.
Without in any way limiting the generality of the foregoing
paragraph, the holders of the Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Thirteen or the obligations hereunder of
the Holders to the holders of Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment
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or extend the time or payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; PROVIDED, HOWEVER, that any such alteration shall not (i)
increase the amount of Senior Indebtedness outstanding in a manner prohibited by
this Indenture or (ii) otherwise violate Section 1008 hereof; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any Person in any manner for
the collection of Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company or any other Person; PROVIDED,
HOWEVER, that in no event shall any such actions limit the right of the Holders
to take any action to accelerate the maturity of the Notes in accordance with
the provisions set forth in Section 502 or to pursue any rights or remedies
against the parties to this Indenture under this Indenture or under applicable
laws if the taking of such action does not otherwise violate the terms of this
Article Thirteen.
SECTION 1310. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article Thirteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee shall have received
at its Corporate Trust Office at least five Business Days prior to the date of
such payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this Article Thirteen. Only the
Company or the Representative may give the notice. Nothing in this Article
Thirteen shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 607 hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
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SECTION 1311. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article Thirteen, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of Indebtedness in the form required in any
proceeding referred to in Section 504 hereof at least 30 days before the
expiration of the time to file such claim, the Representative is hereby
authorized to file an appropriate claim for and on behalf of the Holders.
SECTION 1312. AMENDMENTS.
The provisions of this Article Thirteen or any related
definitions shall not be amended or modified in a manner adverse to the holders
of Senior Indebtedness without the written consent of the holders of all Senior
Indebtedness.
ARTICLE FOURTEEN
Subsidiary Guarantees
SECTION 1401. SUBSIDIARY GUARANTEES.
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Subject to the provisions of this Article Fourteen, each
Guarantor, jointly and severally, hereby irrevocably and unconditionally fully
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns (the "Subsidiary Guarantee"),
that: (a) the principal of, and premium, if any, and interest (and Liquidated
Damages, if any) on the Notes shall be duly and punctually paid in full when
due, whether at maturity, by acceleration or otherwise, and interest on overdue
principal, and premium, if any, and (to the extent permitted by law) interest on
any interest and Liquidated Damages, if any, on the Notes and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Notes (including fees, expenses or other) shall be promptly paid in full or
performed, all in accordance with the terms hereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or failing performance of any other obligation of the Company to
the Holders, for whatever reason, each Guarantor shall be obligated to pay, or
to perform or to cause the performance of, the same immediately. An Event of
Default under this Indenture or the Notes shall constitute an event of default
under the Subsidiary Guarantees, and shall entitle the Trustee or the Holders to
accelerate the obligations of each Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company. Each Guarantor hereby agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any thereof, the entry of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives and relinquishes: (a) any right to require the Trustee,
the Holders or the Company (each, a "Benefitted Party") to proceed against the
Company, the Subsidiaries or any other Person or to proceed against or exhaust
any security held by a Benefitted Party at any time or to pursue any other
remedy in any secured party's power before proceeding against the Subsidiaries;
(b) any defense that may arise by reason of the incapacity, lack of
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authority, death or disability of any other Person or Persons or the failure of
a Benefitted Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person or
Persons; (c) demand, protest and notice of any kind (except as expressly
required by this Indenture), including but not limited to notice of the
existence, creation or incurring of any new or additional Indebtedness or
obligation or of any action or non-action on the part of the Guarantors, the
Company, the Subsidiaries, any Benefitted Party, any creditor of the Guarantors,
the Company or the Subsidiaries or on the part of any other Person whomsoever in
connection with any obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefitted Party,
including but not limited to an election to proceed against the Guarantors for
reimbursement; (e) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (f) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under the Bankruptcy Law, of the application of Section 1111(b)(2) of the
Bankruptcy Code; and (g) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. The Guarantors
hereby covenant that the Subsidiary Guarantees shall not be discharged except by
payment in full of all principal, premium, if any, and interest on the Notes and
all other costs provided for under this Indenture, or except as provided in
Sections 1202 and 1404.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or the Guarantors, or any trustee or
similar official acting in relation to either the Company or the Guarantors, any
amount paid by the Company or the Guarantors to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each of the Guarantors agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the purposes hereof, notwithstanding any stay, injunction or
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other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purpose of its Subsidiary Guarantee.
SECTION 1402. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
To evidence the Subsidiary Guarantees set forth in Section
1401 hereof, each of the Guarantors agrees that a Subsidiary Guarantee
substantially in the form of Exhibit C hereto shall be endorsed on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its Chairman of the Board, its President
or one of its Vice Presidents, and attested to by its Secretary or one of its
Assistant Secretaries.
Each of the Guarantors agrees that the Subsidiary Guarantees
set forth in this Article Fourteen shall remain in full force and effect and
apply to all the Notes notwithstanding any failure to endorse on each Note a
notation of the Subsidiary Guarantees.
If an individual whose manual or facsimile signature is on a
Note shall have ceased to hold such office prior to the authentication and
delivery of the Note on which the Subsidiary Guarantees are endorsed, the
Subsidiary Guarantees shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantees endorsed thereon and set forth in this Indenture and shall
bind each Guarantor notwithstanding the fact that a Subsidiary Guarantee does
not bear the signature of such Guarantor. Each of the Guarantors hereby jointly
and severally agrees that its Subsidiary Guarantee set forth in Section 1401 and
in the form of Subsidiary Guarantee established pursuant to Exhibit C shall
remain in full force and effect notwithstanding any failure to endorse a
Subsidiary Guarantee on any Note.
SECTION 1403. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
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(a) Nothing contained in this Indenture or in the Notes shall
prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent the transfer of all or
substantially all of the assets of a Guarantor to the Company or
another Guarantor. Upon any such consolidation, merger, transfer or
sale, the Subsidiary Guarantee of such Guarantor shall no longer have
any force or effect.
(b) Except as provided in Section 1403(a), or a transaction
referred to in Section 1404, no Guarantor shall consolidate with or
merge with or into (whether or not such Guarantor is the surviving
corporation) another Person other than the Company or another
Guarantor, whether in a single transaction or a series of related
transactions, unless (i) subject to the provisions of Section 1404
hereof, the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) assumes all the obligations of
such Guarantor in connection with the Subsidiary Guarantees and this
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee, pursuant to which such Person shall
unconditionally guarantee on a senior subordinated basis all of such
Guarantor's obligations under such Guarantor's Subsidiary Guarantee and
this Indenture on the terms set forth in this Indenture; (ii)
immediately before and immediately after giving effect to such
transaction on a PRO FORMA basis, no Default or Event of Default shall
have occurred and be continuing; and (iii) such Guarantor shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel addressed to the Trustee, each stating that such consolidation
or merger and such supplemental indenture, if any, comply with this
Indenture and that such supplemental indenture is enforceable. In case
of any such consolidation or merger and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of
the Subsidiary Guarantees endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, such successor corporation
shall succeed to and be substituted for such Guarantor
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with the same effect as if it had been named herein as a Guarantor.
Such successor corporation thereupon may cause to be signed any or all
of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall have been signed by the
Company and delivered to the Trustee. All the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) The Trustee, subject to the provisions of Section 1404
hereof, shall be entitled to receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance, and any such assumption of obligations,
comply with the provisions of this Section 1403.
SECTION 1404. RELEASES FOLLOWING SALE OF ASSETS.
Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor (or all or substantially all
of the assets of any such Guarantor or 50% or more of the Equity Interests of
any such Guarantor) to an entity which is not a Guarantor or the designation of
a Subsidiary to become an Unrestricted Subsidiary, which transaction is
otherwise in compliance with this Indenture, including without limitation
Section 1015 hereof, such Guarantor shall be deemed released from its
obligations under its Subsidiary Guarantee. Upon delivery by the Company to the
Trustee of an Officer's Certificate and Opinion of Counsel, to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 1015 hereof,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any such Guarantor from its obligations under its Subsidiary
Guarantee. Any Guarantor not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other
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obligations of any Guarantor under this Indenture as provided in this Article
Fourteen.
SECTION 1405. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law. To effectuate the foregoing intention, the Holders
and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under this Article Fourteen shall be limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article Fourteen, result in the obligations of such
Guarantor under the Subsidiary Guarantee of such Guarantor not constituting a
fraudulent transfer or conveyance.
SECTION 1406. APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS.
(a) For purposes of any provision of this Indenture which
provides for the delivery by any Guarantor of an Officers' Certificate
and/or an Opinion of Counsel, the definitions of such terms in Section
101 shall apply to such Guarantor as if references therein to the
Company were references to such Guarantor.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other document which by any provision of this
Indenture is to be made by any Guarantor, shall be sufficient if
evidenced as described in Section 105 as if references therein to the
Company were references to such Guarantor.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document which by any
provision of this Indenture
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is required or permitted to be given or served by the Trustee or by any
Holder may be given or served as described in Section 105 as if
references therein to the Company were references to such Guarantor.
(d) Upon any application or request by any Guarantor to the
Trustee to take any action under any provision of this Indenture, such
Guarantor shall furnish to the Trustee such certificates and opinions
as are required in Section 102 hereof as if all references therein to
the Company were references to such Guarantor.
SECTION 1407. RELEASE OF SUBSIDIARY GUARANTEES.
Concurrently with the defeasance of the Notes under Section
1202 hereof, the Guarantors shall be released from all of their obligations
under the Subsidiary Guarantees and this Article Fourteen.
SECTION 1408. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article Fourteen is subordinated in right of payment
to the prior payment in full in cash of all Senior Indebtedness of such
Guarantor on the same basis as the Notes are subordinated to Senior Indebtedness
of the Company. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of Notes pursuant to this Indenture, including Article Thirteen hereof.
In the event that the Trustee receives any Guarantor payment at a time when the
Trustee has received notice in accordance with Section 1310, such Guarantor
payment shall be held by the Trustee in trust for the benefit of, and shall be
paid forthwith over and delivered, upon written request, to, the holders of the
Senior Indebtedness of such Guarantor remaining unpaid or unprovided for, for
application to the payment of all obligations with respect to Senior
Indebtedness of such Guarantor remaining unpaid, to the extent necessary to pay
such Senior Indebtedness of such Guarantor in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to
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or for the holders of Senior Indebtedness. In the event that a Holder receives
any Guarantor payment at a time when such payment is prohibited by the second
preceding sentence, such Guarantor payment shall be forthwith paid over and
delivered to the holders of the Senior Indebtedness of such Guarantor remaining
unpaid or unprovided for, for application to the payment of all obligations with
respect to Senior Indebtedness of such Guarantor remaining unpaid, to the extent
necessary to pay such Senior Indebtedness in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness of such Guarantor.
Each Holder of a Note by its acceptance thereof (a) agrees to
and shall be bound by the provisions of this Section 1408, (b) authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary and appropriate to effectuate the subordination so provided, and (c)
appoints the Trustee as the Holder's attorney-in-fact for any and all such
purposes.
SECTION 1409. WAIVER OF SUBROGATION.
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Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment, performance or
enforcement of the Company's obligations under the Notes or this Indenture and
each Guarantor's obligations under this Subsidiary Guarantee and this Indenture,
in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders and the Trustees against the
Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to a Guarantor in
violation of the preceding sentence and any amounts owing to the Trustee or the
Holders under the Notes, this Indenture, or any other document or instrument
delivered under or in connection with such agreements or instruments, shall not
have been paid in full, such amount shall have been deemed to have been paid to
such Guarantor for the benefit of, and held in trust for the benefit of, the
Holders and the Trustee and shall forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied to the obligations in favor
of the Holders, whether matured or unmatured, in accordance with the terms of
this Indenture. Each Guarantor acknowledges that it has received consideration
for providing the Subsidiary Guarantee and that it shall receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 1409 is knowingly made in
contemplation of such benefits.
SECTION 1410. IMMEDIATE PAYMENT.
Each Guarantor agrees to make immediate payment to the Trustee
on behalf of the Holders of all obligations under the Notes and this Indenture
owing or payable to the Holders upon receipt of a demand for payment therefor by
the Trustee to such Guarantor in writing.
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SECTION 1411. NO SET-OFF.
Each payment to be made by any Guarantor hereunder in respect
of the Notes, the Subsidiary Guarantees or this Indenture shall be payable in
U.S. Dollars and shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.
SECTION 1412. OBLIGATIONS ABSOLUTE.
The obligations of each Guarantor hereunder are and shall be
absolute and unconditional and any monies or amounts expressed to be owing or
payable by a Guarantor hereunder which may not be recoverable from such
Guarantor on the basis of a guarantee shall be recoverable from such Guarantor
as a primary obligor and principal debtor in respect thereof.
SECTION 1413. OBLIGATIONS CONTINUING.
Subject to Section 1404, the obligations of each Guarantor
hereunder shall be continuing and shall remain in full force and effect until
all the obligations of the Company under the Notes and this Indenture shall have
been paid and satisfied in full.
SECTION 1414. OBLIGATIONS NOT REDUCED.
The obligations of each Guarantor hereunder shall not be
satisfied, reduced or discharged by any intermediate payment or satisfaction of
the whole or any part of the principal, interest, fees and other monies or
amounts which may at any time be or become owing or payable under or by virtue
of or otherwise in connection with the Notes or this Indenture.
SECTION 1415. OBLIGATIONS REINSTATED.
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of a Guarantor
hereunder (whether such payment shall have been made by or on behalf
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of the Company or by or on behalf of a Guarantor) is rescinded or reclaimed from
the Holders upon the insolvency, bankruptcy, liquidation or reorganization of
the Company or any Guarantor or otherwise, all as though such payment had not
been made. If demand for, or acceleration of the time for, payment by the
Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization
of the Company, all such indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by each Guarantor as provided herein.
SECTION 1416. OBLIGATIONS NOT AFFECTED.
The obligations of each Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by a Guarantor or the
Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against a Guarantor hereunder or might operate to release or
otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:
(1) any limitation of status or power, disability, incapacity
or other circumstance relating to the Company or any other person,
including any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding-up or other proceeding
involving or affecting the Company or any other person;
(2) any irregularity, defect, unenforceability or invalidity
in respect of any indebtedness or other obligation of the Company or
any other person under this Indenture, the Notes or any other document
or instrument;
(3) any failure of the Company, whether or not without fault
on its part, to perform or comply with any of the provisions of this
Indenture or the Notes, or to give notice thereof to a Guarantor;
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(4) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or
against the Company or any other person or their respective assets or
the release or discharge of any such right or remedy;
(5) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other person;
(6) any change in the time, manner or place of payment of, or
in any other term of, any of the Notes, or any other amendment,
variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount of or
premium, if any, or interest on any of the Notes;
(7) subject to Section 1404, any change in the ownership,
control, name, objects, businesses, assets, capital structure or
constitution of the Company or any Guarantor;
(8) subject to Section 1404, any merger or amalgamation of the
Company or a Guarantor with any person or persons;
(9) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
or otherwise affect, the Notes, this Indenture or the obligations of a
Guarantor under its Subsidiary Guarantee; and
(10) any other circumstance (other than by complete,
irrevocable payment) that might otherwise constitute a legal or
equitable discharge or defense of the Company under this Indenture or
the Notes or of a Guarantor in respect of its Subsidiary Guarantee
hereunder.
SECTION 1417. DEALING WITH THE COMPANY AND OTHERS.
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The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may
(1) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other Person;
(2) take or abstain from taking security or collateral from
the Company or from perfecting security or collateral of the Company;
(3) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or other
security given by the Company or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
(4) accept compromises or arrangements from the Company;
(5) apply all monies at any time received from the Company or
from any security upon such part of the Notes or this Indenture as the
Holders may see fit or change any such application in whole or in part
from time to time as the Holders may see fit; and
(6) otherwise deal with, or waive or modify their right to
deal with, the Company and all other Persons and any security as the
Holders or the Trustee may see fit.
SECTION 1418. DEFAULT AND ENFORCEMENT.
If any Guarantor fails to pay in accordance with Section 1401
or Section 1410 hereof, the Trustee may proceed in its name as trustee hereunder
in the enforcement of the Subsidiary Guarantees of such Guarantor and each other
Guarantor of the Guarantors' obligations thereunder and hereunder by any remedy
provided by law, whether by legal proceedings or otherwise, and to recover from
the Guarantors
-164-
the obligations of the Company under the Notes and this Indenture.
SECTION 1419. COSTS AND EXPENSES.
Each Guarantor shall pay on demand by the Trustee any and all
costs, disbursements, advances and expenses incurred by the Trustee or the
Holders (including, without limitation, the reasonable compensation, expenses
and disbursements of their respective agents and counsel) in enforcing any of
their rights under any Subsidiary Guarantee.
SECTION 1420. NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part
of the Trustee or the other Holders, any right, remedy, power or privilege
hereunder or under this Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Notes preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Subsidiary
Guarantees and under this Indenture, the Notes and any other document or
instrument between the Guarantors and/or the Company and the Trustee are
cumulative and not exclusive of any rights, remedies, powers and privilege
provided by law.
SECTION 1421. REPRESENTATION AND WARRANTY OF EACH GUARANTOR.
Each Guarantor hereby represents and warrants that all acts,
conditions and things required to be done and performed and to have happened
precedent to the creation and issuance of its Subsidiary Guarantee, to
constitute the same valid, binding and legal obligation of such Guarantor,
enforceable against such Guarantor, its successors and assigns in accordance
with its terms, have been done and performed and have happened in compliance
with all applicable laws and that it has received consideration for providing
the Subsidiary Guarantee. The obligation of each Guarantor under its Subsidiary
Guarantee shall constitute a
-165-
direct, general, irrevocable, unconditional and unsecured obligation of such
Guarantor, subordinated as provided in Section 1408 of this Indenture, and is
the joint and several obligation of each other Guarantor.
SECTION 1422. SUCCESSORS AND ASSIGNS.
Each Subsidiary Guarantee shall be binding upon and inure to
the benefit of the Guarantors and the Trustee and the Holders and their
respective successors and permitted assigns.
-166-
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, and in the case of the Company and
the Trustee, their respective corporate seals to be hereunto affixed, all as of
the day and year first above written.
CONCENTRA OPERATING CORPORATION
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Executive Vice President
CONCENTRA MANAGEMENT SERVICES, INC.
PROMPT ASSOCIATES, INC.
CRA MANAGED CARE OF WASHINGTON, INC.
CRA-MCO, INC.
DRUG FREE CONSORTIUM, INC.
CONCENTRA MANAGED CARE SERVICES, INC.
CONCENTRA HEALTH SERVICES, INC.
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Vice President
-167-
OCI HOLDINGS, INC.
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Executive Vice President
FOCUS HEALTHCARE MANAGEMENT, INC.
FIRST NOTICE SYSTEMS, INC.
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: Chief Executive Officer
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Executive Vice President
HILLMAN CONSULTING, INC.
CONCENTRA PREFERRED SYSTEMS, INC.
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: Chairman
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Vice President
-168-
CONCENTRA MANAGED CARE BUSINESS TRUST
By: Concentra Managed Care Services, Inc.,
Trustee
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Executive Vice President
OCCUCENTERS I, L.P.
By: Concentra Health Services, Inc.,
General Partner
By: /s/ Daniel J. Thomas
-----------------------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- --------------------------
Name: Richard A. Parr II
Title: Executive Vice President
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Gerard F. Ganey
-----------------------------------------
Name: Gerard F. Ganey
Title: Senior Vice President
-169-
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the President of Concentra Operating Corporation, one of the
corporations described in and which executed the foregoing instrument, and that
he executed the same by authority of the Board of Directors of said corporation.
-----------------------------------
Notary Public
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the President of Concentra Management Services, Inc., Prompt
Associates, Inc., CRA Managed Care of Washington, Inc., CRA-MCO, Inc., Drug Free
Consortium, Inc., Concentra Managed Care Services, Inc., Concentra Health
Services, Inc. and various of the corporations described in and which executed
the foregoing instrument, and that he executed the same by authority of the
Board of Directors of said corporations.
-----------------------------------
Notary Public
-170-
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the President of OCI Holdings, Inc., one of the corporations
described in and which executed the foregoing instrument, and that he executed
the same by authority of the Board of Directors of said corporation.
-----------------------------------
Notary Public
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the Chairman of Concentra Preferred Systems, Inc. and Hillman
Consulting, Inc., various of the corporations described in and which executed
the foregoing instrument, and that he executed the same by authority of the
Board of Directors of said corporations.
-----------------------------------
Notary Public
-171-
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the Chief Executive Officer of First Notice Systems, Inc. and
Focus Healthcare Management, Inc., various of the corporations described in and
which executed the foregoing instrument, and that he executed the same by
authority of the Board of Directors of said corporation.
-----------------------------------
Notary Public
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared David J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the President of Concentra Managed Care Services, Inc., which
is Trustee of Concentra Managed Care Business Trust, one of the organizations
described in and which executed the foregoing instrument, and that he executed
the same by authority of the Board of Directors of Concentra Managed Care
Services, Inc.
-----------------------------------
Notary Public
-172-
STATE OF ____________ ) ss.:
COUNTY OF ___________ )
On the _____ day of August, 1999, before me personally
appeared Daniel J. Thomas, to me known, who, being by me duly sworn, did depose
and say that he is the President of Concentra Health Services, Inc., which is
the General Partner of OccuCenters I, L.P. one of the organizations described in
and which executed the foregoing instrument, and that he executed the same by
authority of the Board of Directors of Concentra Health Services, Inc.
-----------------------------------
Notary Public
-173-
STATE OF _________ ) ss.:
COUNTY OF ________ )
On the _____ day of August, 1999, before me personally
appeared ________________________, to me known, who, being by me duly sworn, did
depose and say that he is ________________________ of United States Trust
Company of New York, one of the corporations described in and which executed the
foregoing instrument, and that he executed the same by authority of the Board of
Directors of said corporation.
-----------------------------------
Notary Public
-174-
Exhibit A
[FORM OF NOTE]
Unless and until it is exchanged in whole or in part for Notes
in definitive form, this 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 any such nominee to a
successor Depositary or a nominee of such successor Depositary. [-- If
Depositary is The Depository Trust Company, then include -- Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York)("DTC"), to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.](1)
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE 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"), OR (B)
- ----------
1 This paragraph should only be added if the Note is issued in global
form.
A-1
IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT,
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (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) 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 (F) 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 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)
THIS NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE AS SPECIFIED
IN THE INDENTURE. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 305 OF THE
INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S TEMPORARY
- ----------
2 This paragraph should be included only for the Transfer Restricted
Notes.
A-2
GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN A REGULATION S PERMANENT GLOBAL NOTE
OR A RULE 144A GLOBAL NOTE DURING THE RESTRICTED PERIOD.(3)
- ----------
3 This paragraph should be included only for Regulation S Temporary
Global Notes.
A-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND
MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS NOTE IS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.(4)
- ----------
4 This paragraph should be included only for Regulation S Permanent
Global Notes.
A-4
CONCENTRA OPERATING CORPORATION
13% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2009
CUSIP No.
No. $_________________
Concentra Operating Corporation., a corporation duly organized
and existing under the laws of Nevada (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _______________ million dollars on August 15,
2009, and to pay interest thereon from August 17, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on February 15 and August 15 in each year, commencing February 15,
2000 at 13% per annum until the principal hereof is paid or made available for
payment, and at the rate of 13% per annum on any overdue principal and premium,
if any, and on any overdue installment of interest and Liquidated Damages, if
any, until paid as specified hereto.
The interest and Liquidated Damages, if any, so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the February 1 or August 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest and Liquidated Damages, if any, not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
A-5
If this Note is issued in the form of a Global Note, payments
of principal of (and premium, if any) and interest (and Liquidated Damages, if
any,) shall be made in immediately available funds to the Depositary. If this
Note is issued in certificated form, payment of the principal of (and premium,
if any) and interest (and Liquidated Damages, if any) on this Note will be made
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register.
The Company shall give notice to the Trustee of the amount of
Liquidated Damages, if any, owed in respect of the Notes. Absent such notice,
the Trustee is conclusively entitled to presume that no Liquidated Damages are
owed.
Reference is hereby made to the further provisions of this
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.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
CONCENTRA OPERATING CORPORATION
By
-----------------------------
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
A-7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes with the Subsidiary Guarantees
endorsed thereon referred to in the within-mentioned Indenture.
Dated:
UNITED STATES TRUST COMPANY
OF NEW YORK
as Trustee
By
-------------------------
Authorized Officer
A-8
[Reverse of Note]
The [Rule 144A] [Regulation S Temporary] [Regulation S
Permanent] [Global] Note is one of a duly authorized issue of Notes of the
Company designated as its 13% [Series A][Series B] Senior Subordinated Notes due
2009 (herein called the "Notes"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $190,000,000,
issued and to be issued under an Indenture, dated as of August 17, 1999 (herein
called the "Indenture"), between the Company, the Guarantors named therein and
United States Trust Company of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered.
The Notes are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, at any time on or after August 15, 2004, as a
whole or in part, at the election of the Company, at a Redemption Price which,
if during the twelve month period beginning August 15, 2004 is equal to 106.500%
of the principal amount of this Note; if during the twelve month period
beginning August 15, 2005 is equal to 104.875% of the principal amount of this
Note; if during the twelve month period beginning August 15, 2006 is equal to
103.250% of the principal amount of this Note; if during the twelve month period
beginning August 15, 2007 is equal to 101.625% of the principal amount of this
Note; if during the twelve month period beginning August 15, 2008 and thereafter
is equal to 100.000% of the principal amount of this Note, in each case plus
interest thereon accruing from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 13% per annum to the
Redemption Date, PROVIDED THAT interest installments whose Interest Payment Date
is on or prior to such Redemption Date will be payable to the Holders of such
Notes, or one or more Predecessor Notes, of record at the close of business on
the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
At any time prior to August 15, 2002, the Company may on one
or more occasions redeem up to 25% of the
A-9
aggregate principal amount of Notes originally issued under the Indenture at a
Redemption Price of 113% of the principal amount thereof, plus accrued and
unpaid interest to the Redemption Date, with the Net Cash Proceeds of one or
more Equity Offerings; PROVIDED THAT:
(a) at least 75% of the aggregate principal amount of Notes
remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its
Subsidiaries); and
(b) the redemption must occur within 90 days of the date of the
closing of such Equity Offering.
Except pursuant to the preceding paragraphs, the Notes will
not be redeemable at the Company's option prior to August 15, 2004.
The Notes do not have the benefit of any sinking fund
obligations.
In the event of redemption or purchase pursuant to an Asset
Sale Offer or Change of Control Offer of this Note in part only, a new Note or
Notes for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Note is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, there
may be declared due and payable the principal amount of the Notes, in the manner
and with the effect provided in the Indenture. Upon any acceleration of maturity
of the Notes, all principal of and accrued interest and Liquidated Damages, if
any, on the Notes shall be due and payable immediately.
A-10
The Indenture provides that, subject to certain conditions, if
(i) certain Net Cash Proceeds are available to the Company as a result of Asset
Sales or (ii) a Change of Control occurs, the Company shall be required to make
an Asset Sale Offer or Change of Control Offer, respectively, for all of the
Notes.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Note or (ii) certain restrictive
covenants and Events of Default with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest (and Liquidated Damages, if any) on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York and at any other office or agency maintained by the Company for such
purpose, duly endorsed by, or
A-11
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or
A-12
any premium or interest hereon on or after the respective due dates expressed
herein.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-day months.
No direct or indirect stockholder, employee, officer or
director, as such, past, present or future of the Company, the Subsidiaries or
any successor entity shall have any personal liability in connection with this
Note solely by reason of his or its status as such stockholder, employee,
officer or director. Each Holder by accepting this Note waives and releases all
such liability, acknowledges and consents to the transactions described under
"The Transactions and Use of Proceeds" in the Offering Memorandum and further
acknowledges the waiver and release are part of the consideration for the
issuance of this Note.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. In addition to the
rights provided to Holders of the Notes under the Indenture, Holders of Notes
shall have all the rights set forth in the Registration Rights Agreement.(5)
The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflicts
of laws principles thereto.
- ----------
5 This sentence should be included only for the Initial Notes.
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its
entirety by the Company pursuant to Section 1014 or 1015 of the Indenture, check
the box:
[ ]
If you want to elect to have only a part of this Note
purchased by the Company pursuant to Section 1014 or 1015 of the Indenture,
state the amount:
Dated:
Your Signature: __________________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee: __________________________________
Notice: Signature(s) must be
guaranteed by an "eligible guarantor
institution" meeting the
requirements of the Trustee, which
requirements will include membership
or participation in STAMP or such
other "signature guarantee program"
as may be determined by the Trustee
in addition to, or in substitution
for STAMP, all in accordance with
the Securities Exchange Act of 1934,
as amended.
A-14
SCHEDULE OF EXCHANGES(6)
The following exchanges relating to this Global Note have been made:
Principal
Amount of Signature of
Amount of Amount of this Global authorized
decrease in increase in Note officer of
Principal Principal following Trustee or
Date of Amount of this Amount of this such decrease Notes
Exchange Global Note Global Note (or increase) Custodian
- --------------------------------------------------------------------------------
- ----------
6 This schedule should only be added if the Note is issued in global
form.
A-15
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED NOTES(7)
Re: 13% SERIES A SENIOR SUBORDINATED NOTES DUE 2009 OF CONCENTRA OPERATING
CORPORATION
This Certificate relates to $___________ principal amount of
Notes held in (check applicable space) _____ book-entry or _____ definitive form
by _________________ (the "Transferor").
The Transferor (check applicable box):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Notes and as provided in Section 305
of such Indenture, the transfer of this Note does not require registration under
the Securities Act (as defined below) because:
[ ] Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of
- ----------
7 This Certificate shall be included only for Initial Notes.
A-16
Section 305(a)(ii)(A) or Section 305(d)(ii)(A) of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A promulgated under the Securities Act) that is aware
that any sale of Notes to it will be made in reliance on Rule 144A under the
Securities Act and that is acquiring such Transfer Restricted Note for its own
account, or for the account of another such "qualified institutional buyer" (in
satisfaction of Section 305(a)(ii)(B) or Section 305(d)(ii)(B) of the
Indenture).
[ ] Such Note is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or outside the United States in an
Offshore Transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities Act (in
satisfaction of Section 305(a)(ii)(C) or Section 305(d)(ii)(C) of the
Indenture).
[ ] Such Note is being transferred in reliance on and in compliance with
an exemption from the registration requirements of the Securities Act and in
accordance with applicable securities laws of the states of the United States,
other than as provided in the immediately preceding paragraph. An Opinion of
Counsel to the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
305(a)(ii)(D) or Section 305(d)(ii)(D) of the Indenture).
------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
Date:
--------------------
A-17
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
NOTES(8)
Re: 13% SERIES B SENIOR SUBORDINATED NOTES DUE 2009 OF CONCENTRA OPERATING
CORPORATION
This Certificate relates to $_____ principal amount of Notes
held in (check applicable box) _____ book-entry or _____ definitive form by
___________ (the "Transferor").
The Transferor (check applicable box):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes definitive, registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Global Note (or the
portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
Date:
--------------------
- ----------
8 This certificate shall be included only for the Exchange Notes.
A-18
Exhibit B
[FORM OF REGULATION S CERTIFICATE FOR HOLDER]
CERTIFICATE TO BE DELIVERED UPON RECEIPT OF PAYMENT OF PRINCIPAL OR INTEREST
WITH RESPECT TO A REGULATION S TEMPORARY GLOBAL NOTE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL NOTE FOR REGULATION S PERMANENT GLOBAL NOTE
Re: 13% SERIES A SENIOR SUBORDINATED NOTES DUE 2009 OF CONCENTRA OPERATING
CORPORATION
The undersigned as the Holder of a beneficial interest in a
Regulation S Temporary Global Note is delivering this certificate concurrently
with (check one):
[ ] the receipt of a payment of interest or principal with respect
to a Regulation S Temporary Global Note; or
[ ] its written order to Euroclear or CEDEL, as the case may be,
to exchange its beneficial interest in the Regulation S Temporary Global Note
for beneficial interest in a Regulation S Permanent Global Note.
In connection with the above, the undersigned hereby certifies
that:
[ ] the undersigned as the Holder of the beneficial interest in
the Regulation S Temporary Global Note is not a U.S. Person (as defined in
Section 305); or
[ ] the undersigned has purchased its interest in the Regulation S
Temporary Global Note in a transaction that is exempt from the registration
requirements under the Securities Act.
------------------------------
[INSERT NAME OF HOLDER]
By:
---------------------------
Date:
-------------------
B-1
[FORM OF REGULATION S CERTIFICATE FOR EUROCLEAR AND CEDEL]
CERTIFICATE TO BE DELIVERED UPON RECEIPT OF PAYMENT OF PRINCIPAL OR INTEREST
WITH RESPECT TO A REGULATION S TEMPORARY GLOBAL NOTE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL NOTE FOR REGULATION S PERMANENT GLOBAL NOTE
Re: 13% SERIES A SENIOR SUBORDINATED NOTES DUE 2009 Of CONCENTRA OPERATING
CORPORATION
The undersigned is delivering this certificate concurrently
with (check one):
[ ] the receipt of a payment of interest or principal with respect
to a Regulation S Temporary Global Note; or
[ ] the exchange of a Regulation S Temporary Global Note for a
Regulation S Permanent Global Note.
In connection with the above, the undersigned hereby certifies
that:
[ ] None of the holders of beneficial interests in the Regulation
S Temporary Global Note is a U.S. Person (as defined in Section 305); or
[ ] Each of the holders of beneficial interests in the Regulation
S Temporary Global Note has purchased its interest in a transaction that is
exempt from the registration requirements under the Securities Act.
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
AS OPERATOR OF THE EUROCLEAR
CLEARANCE SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
By:
--------------------------
Date:
-------------------
B-2
Exhibit C
[FORM OF NOTATION OF SUBSIDIARY GUARANTEE]
For value received, each of the Guarantors listed below (which
term includes any successors or assigns under the Indenture, dated as of August
17, 1999 (the "Indenture"), between the Company, the Guarantors listed below and
United States Trust Company of New York, as Trustee, and any additional
Guarantors that become such following the date hereof), jointly and severally,
fully and unconditionally, irrevocably, guarantees, as principal obligor and not
only as surety, to the Holder of the Note on which this Subsidiary Guarantee is
endorsed, and to the Trustee on behalf of such Holders, (i) the due and punctual
payment of the principal of, premium, if any, and interest (and Liquidated
Damages, if any) on the Notes, whether at stated maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal,
and premium if any, and (to the extent permitted by law) interest on any
interest and Liquidated Damages, if any, on the Notes, and the due and punctual
performance of all other obligations of the Company, all in accordance with the
terms set forth in Article Fourteen of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise, and (iii) the payment of any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Subsidiary Guarantee.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article Fourteen of the Indenture and reference is hereby made to
such Indenture for the precise terms of this Subsidiary Guarantee and other
matters in respect of this Subsidiary Guarantee.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest and Liquidated Damages, if any, on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
C-1
Until the Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment, performance or
enforcement of the Company's obligations under the Notes or the Indenture and
each Guarantor's obligations under this Subsidiary Guarantee and this Indenture,
in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders and the Trustees against the
Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights.
No stockholder, officer, director, employee or incorporator,
as such, past, present or future of each Guarantor shall have any liability by
reason of his or its status as such stockholder, officer, director, employee or
incorporator for any obligations of any Guarantor under the Notes, the Indenture
or its Subsidiary Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation.
This is a continuing guarantee and shall remain in full force
and effect and shall be binding upon each Guarantor and its successors and
assigns until full and final payment of all of the Company's obligations under
the Notes and Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof and
the Indenture. This is a guarantee of payment and not of collectibility.
The obligations of each Guarantor under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent transfer or conveyance under applicable law.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a Guarantor
after the date of the
C-2
Indenture will be deemed to have executed and delivered this Subsidiary
Guarantee for the benefit of the Holder of the Note upon which this Subsidiary
Guarantee is endorsed with the same effect as if such Guarantor was named below
and has executed and delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
C-3
IN WITNESS WHEREOF, each of the Guarantors has caused this
Subsidiary Guarantee to be duly executed.
CONCENTRA MANAGEMENT SERVICES, INC.
PROMPT ASSOCIATES, INC.
CRA MANAGED CARE OF WASHINGTON, INC.
CRA-MCO, INC.
DRUG FREE CONSORTIUM, INC.
CONCENTRA MANAGED CARE SERVICES, INC.
CONCENTRA HEALTH SERVICES, INC.
By:________________________________
Name: Daniel J. Thomas
Title: President
Attest:
- --------------------------
Name:
Title:
OCI HOLDINGS, INC.
By:______________________________
Name: Daniel J. Thomas
Title: President
Attest:
- --------------------------
Name:
Title:
C-4
FOCUS HEALTHCARE MANAGEMENT, INC.
FIRST NOTICE SYSTEMS, INC.
By:________________________________
Name: Daniel J. Thomas
Title: Chief Executive Officer
Attest:
- --------------------------
Name:
Title:
HILLMAN CONSULTING, INC.
CONCENTRA PREFERRED SYSTEMS, INC.
By:________________________________
Name: Daniel J. Thomas
Title: Chairman
Attest:
- --------------------------
Name:
Title:
C-5
CONCENTRA MANAGED CARE BUSINESS TRUST
By: Concentra Managed Care Services, Inc.,
Trustee
By:________________________________
Name: Daniel J. Thomas
Title: President
Attest:
- --------------------------
Name:
Title:
OCCUCENTERS I, L.P.
By: Concentra Health Services, Inc.,
General Partner
By:________________________________
Name: Daniel J. Thomas
Title: President
Attest:
- --------------------------
Name:
Title:
C-6
EXHIBIT D
[FORM OF INTERCOMPANY NOTE]
US$___________ (Date)
______________, a corporation duly incorporated and existing under the
laws of ______ (the "Borrower") and a subsidiary of Concentra Operating
Corporation (the "Lender"), for value received, hereby promises to pay to the
order of the Lender on demand the principal sum of ________ dollars and to pay
interest thereon from the date hereof semiannually on February 15 and August 15
in each year at 13% per annum until the principal hereof is paid or made
available for payment.
This Intercompany Note has been issued in accordance with the Indenture
between the Lender, the Guarantors defined therein and United States Trust
Company of New York, as Trustee, dated as of August 17, 1999.
This Intercompany Note shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Borrower has caused this instrument to be
executed.
Dated:
[BORROWER]
By:
-------------------------------
Name:
Title:
Attest:
- -------------------------
Name:
Title:
D-1
Schedule I Page 1
Schedule I
SCHEDULE OF GUARANTORS
The following schedule lists each Guarantor under the Indenture as of
the Issue Date:
Concentra Management Services, Inc.
Concentra Preferred Systems, Inc.
Concentra Managed Care Services, Inc.
Concentra Health Services, Inc.
Prompt Associates, Inc.
First Notice Systems, Inc.
Focus Healthcare Management, Inc.
Hillman Consulting, Inc.
CRA Managed Care of Washington, Inc.
OCI Holdings, Inc.
CRA-MCO, Inc.
Drug Free Consortium, Inc.
Concentra Managed Care Business Trust
OccuCenters I, L.P.
Schedule I - Page 1