Exhibit 4.2
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CONCENTRA MANAGED CARE, INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
----------------
Indenture
Dated as of August 17, 1999
----------------
14% Senior Discount Debentures due 2010
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Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August __, 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)
(e) ....................................... 514
Trust Indenture Indenture
ACT SECTION SECTION
---------------- ---------
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
- ------------------------
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................1
SECTION 101. Definitions............................................................1
SECTION 102. Compliance Certificates and Opinions..................................33
SECTION 103. Form of Documents Delivered to Trustee................................34
SECTION 104. Acts of Holders; Record Date..........................................35
SECTION 105. Notices, Etc., to Trustee and Company.................................37
SECTION 106. Notice to Holders; Waiver.............................................37
SECTION 107. Conflict with Trust Indenture Act.....................................38
SECTION 108. Effect of Headings and Table of Contents..............................38
SECTION 109. Successors and Assigns................................................38
SECTION 110. Separability Clause...................................................38
SECTION 111. Benefits of Indenture.................................................38
SECTION 112. Governing Law.........................................................38
SECTION 113. Legal Holidays........................................................39
SECTION 114. No Personal Liability of Directors, Officers,
Employees and Stockholders............................................39
ARTICLE TWO Debenture Forms.......................................................39
SECTION 201. Forms Generally.......................................................39
ARTICLE THREE The Debentures........................................................41
SECTION 301. Title and Terms.......................................................41
SECTION 302. Registered Form.......................................................42
SECTION 303. Execution, Authentication, Delivery and Dating........................42
SECTION 304. Temporary Debentures..................................................43
SECTION 305. Registration, Registration of Transfer and Exchange...................43
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debentures......................51
SECTION 307. Payment of Interest; Interest Rights Preserved........................52
SECTION 308. Persons Deemed Owners.................................................53
SECTION 309. Cancellation..........................................................54
SECTION 310. Computation of Interest...............................................54
SECTION 311. CUSIP and ISIN Numbers................................................54
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ARTICLE FOUR Satisfaction and Discharge............................................55
SECTION 401. Satisfaction and Discharge of Indenture...............................55
SECTION 402. Application of Trust Money............................................56
ARTICLE FIVE Remedies..............................................................56
SECTION 501. Events of Default.....................................................56
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................59
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......60
SECTION 504. Trustee May File Proofs of Claim......................................60
SECTION 505. Trustee May Enforce Claims Without Possession of Debentures...........61
SECTION 506. Application of Money Collected........................................61
SECTION 507. Limitation on Suits...................................................62
SECTION 508. Unconditional Right of Holders to Receive
Accreted Value, Premium and Interest..................................62
SECTION 509. Restoration of Rights and Remedies....................................63
SECTION 510. Rights and Remedies Cumulative........................................63
SECTION 511. Delay or Omission Not Waiver..........................................63
SECTION 512. Control by Holders....................................................64
SECTION 513. Waiver of Past Defaults...............................................64
SECTION 514. Undertaking for Costs.................................................64
SECTION 515. Waiver of Usury, Stay or Extension Laws...............................65
ARTICLE SIX The Trustee...........................................................65
SECTION 601. Certain Duties and Responsibilities...................................65
SECTION 602. Notice of Defaults....................................................65
SECTION 603. Certain Rights of Trustee.............................................66
SECTION 604. Not Responsible for Recitals or Issuance of Debentures................67
SECTION 605. May Hold Debentures...................................................67
SECTION 606. Money Held in Trust...................................................67
SECTION 607. Compensation and Reimbursement........................................67
SECTION 608. Disqualification; Conflicting Interests...............................68
SECTION 609. Corporate Trustee Required; Eligibility...............................68
SECTION 610. Resignation and Removal; Appointment of Successor.....................68
SECTION 611. Acceptance of Appointment by Successor................................70
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...........70
SECTION 613. Preferential Collection of Claims Against Company.....................70
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ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company.....................71
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............71
SECTION 702. Preservation of Information; Communications to Holders................71
SECTION 703. Reports by Trustee....................................................71
SECTION 704. Reports by Company....................................................72
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease..................73
SECTION 801. Limitation on Merger, Sale or Consolidation...........................73
SECTION 802. Successor Substituted.................................................74
SECTION 803. Transfer of Subsidiary Assets.........................................75
ARTICLE NINE Supplemental Indentures...............................................75
SECTION 901. Supplemental Indentures Without Consent of Holders....................75
SECTION 902. Supplemental Indentures with Consent of Holders.......................76
SECTION 903. Execution of Supplemental Indentures..................................77
SECTION 904. Effect of Supplemental Indentures.....................................77
SECTION 905. Conformity with Trust Indenture Act...................................77
SECTION 906. Reference in Debentures to Supplemental Indentures....................77
SECTION 907. Amendments at the Request of Holders..................................77
ARTICLE TEN Covenants.............................................................78
SECTION 1001. Payment of Accreted Value, Premium and Interest.......................78
SECTION 1002. Maintenance of Office or Agency.......................................78
SECTION 1003. Money for Debenture Payments to be Held in Trust......................78
SECTION 1004. Existence.............................................................80
SECTION 1005. Maintenance of Properties.............................................80
SECTION 1006. Payment of Taxes and Other Claims.....................................80
SECTION 1007. Maintenance of Insurance..............................................81
SECTION 1008. Limitation on Incurrence of Indebtedness and
Issuance of Preferred Stock...........................................81
SECTION 1009. Limitation on Restricted Payments.....................................84
SECTION 1010. Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries........................89
SECTION 1011. Limitation on Liens Securing Indebtedness.............................91
SECTION 1012. Limitation on Transactions with Affiliates............................91
SECTION 1013. Limitation on Issuances and Sales of Equity
Interests in Restricted Subsidiaries..................................93
iv
SECTION 1014. Repurchase of Debentures at the Option of the
Holder Upon a Change of Control.......................................94
SECTION 1015. Repurchase of Debentures at the Option of the
Holder Upon an Asset Sale.............................................96
SECTION 1016. Investment Company....................................................98
SECTION 1017. Limitation on Lines of Business.......................................98
SECTION 1018. Sale and Leaseback Transactions.......................................98
SECTION 1019. Designation of Restricted and Unrestricted Subsidiaries...............99
SECTION 1020. Advances of Subsidiaries..............................................99
SECTION 1021. Payments for Consents.................................................99
SECTION 1022. Statement by Officers as to Default; Compliance Certificates..........99
SECTION 1023. Waiver of Covenants..................................................100
ARTICLE ELEVEN Redemption of Debentures.............................................100
SECTION 1101. Optional Redemption..................................................100
SECTION 1102. Applicability of Article.............................................101
SECTION 1103. Election to Redeem; Notice to Trustee................................101
SECTION 1104. Selection by Trustee of Debentures to Be Redeemed....................101
SECTION 1105. Notice of Redemption.................................................102
SECTION 1106. Deposit of Redemption Price..........................................103
SECTION 1107. Debentures Payable on Redemption Date................................103
SECTION 1108. Debentures Redeemed in Part..........................................103
ARTICLE TWELVE Defeasance and Covenant Defeasance...................................104
SECTION 1201. Company's Option to Effect Legal Defeasance or
Covenant Defeasance..................................................104
SECTION 1202. Legal Defeasance and Discharge.......................................104
SECTION 1203. Covenant Defeasance..................................................104
SECTION 1204. Conditions to Legal or Covenant Defeasance...........................105
SECTION 1205. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous
Provisions...........................................................106
SECTION 1206. Reinstatement........................................................107
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PAGE
vi
vii
Page
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EXHIBIT A FORM OF DEBENTURE....................................................A-1
EXHIBIT B FORM OF REGULATION S CERTIFICATE FOR HOLDER..........................B-1
EXHIBIT C FORM OF INTERCOMPANY NOTE ..........................................C-1
viii
INDENTURE, dated as of August 17, 1999, between Concentra Managed
Care, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
312 Union Wharf, Boston, Massachusetts 02109 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 14% Senior
Discount Debentures due 2010 (the "Debentures"):
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.
"Accreted Value" means, as of any date of determination prior to
the Full Accretion Date, with respect to any Debenture, the sum of (a) the
initial offering price based on
an aggregate initial offering price of $110,000,000 and (b) the aggregate amount
that shall have accreted on such Debenture through such date, such amount to be
so accreted on a daily basis at a rate of 14% per annum of the initial offering
price of such Debenture, compounded semi-annually on each February 15 and August
15 from the date of issuance of the Debenture through the date of determination,
computed on the basis of a 360-day year of twelve 30-day months. On February 15,
2005 and on each subsequent Interest Payment Date, the Accreted Value of the
Debenture shall be reduced by the amount of accrued original issue discount
required to be paid on such Debenture pursuant to Section 301(c) hereof. In the
event of any such payment of accrued original issue discount, the Accreted Value
of the Debenture shall be further reduced as of its maturity date to the extent
necessary to ensure that the yield to maturity on the Debenture (determined as
provided in Section 1272 of the Code and the regulations thereunder and computed
by taking into account any such payment of accrued original issue discount)
shall equal the yield to maturity on such Debenture (computed as though no such
payment of accrued original discount had been paid). At the request of the
Trustee, the Company shall calculate the Accreted Value with respect to any
Debenture and deliver such calculation to the Trustee. The Trustee shall be
entitled to rely conclusively on the Company's calculation.
"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
Company's
2
occupational health services centers shall not be deemed to be an
Affiliate of the Company or any of its 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 similar federal
or state law for the relief of debtors.
"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 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 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.
4
"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 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.
5
"Certificated Debentures" means Debentures 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 the Company and its Subsidiaries
taken as a whole to any "person" (as such term is used in
Section 13(d) (3) of the Exchange Act) 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 Concentra Operating Corporation
consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the
Company or Concentra Operating Corporation, in any such
event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or Concentra
Operating Corporation, 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 Concentra Operating Corporation, 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.
6
"Change of Control Payment" has the meaning set forth in Section
1014.
"Code" means the Internal Revenue Code of 1986, as amended.
"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.
"Concentra Operating Corporation" means Concentra Operating
Corporation, a Nevada corporation.
"consolidated" means, with respect to the Company, the
consolidated accounts of its Subsidiaries with those of the Company, 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;
7
(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 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
8
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 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;
9
(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.
"Debentures" has the meaning assigned to such term in the
preamble to this Indenture.
"Debentures Custodian" means the Trustee, as custodian with
respect to the Debentures in global form, or any successor entity thereto.
"Debentures Register" or "Debentures Registrar" have the
respective meanings set forth in Section 305.
"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 Debentures" means Debentures in the form of
Debentures 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 Debentures 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 Debentures, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"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), engaged in the
development of occupational health centers and financed by the issue
10
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 Debentures 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).
"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.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than the Senior Subordinated Debentures and 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
11
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
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; 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).
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"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.
"Full Accretion Date" means August 15, 2004.
"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 Debenture" means a Debenture (including a Rule 144A
Global Debenture or a Regulation S Global Debenture) that contains the
information referred to in footnotes 1 and 6 to the form of Debentures as set
forth in Exhibit A.
"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.
13
"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 Debenture is registered
in the Debenture Register.
"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:
(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:
14
(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.
"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 Purchasers" means the purchasers of the Debentures under
the Purchase Agreement dated as of August 17, 1999 among the Company and the
parties thereto.
"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
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.
"Interest Payment Date" means each of February 15 and August 15,
commencing on February 15, 2005.
"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 disposition, such Person is no longer a Restricted Subsidiary of the
Company, the
15
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 of the original issuance of the
Debentures.
"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.
"Maturity", when used with respect to any Debenture, means the
date on which the Accreted Value of such Debenture becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"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
(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.
16
"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 notice, lapse of time or both any holder of any other
Indebtedness (other than the Debentures) 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.
"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.
"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 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.
17
"Outstanding", when used with respect to Debentures, means, as of
the date of determination, all Debentures theretofore authenticated and
delivered under this Indenture, EXCEPT:
(1) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Debentures 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 Debentures; PROVIDED that, if such
Debentures 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
(3) Debentures which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debentures have
been authenticated and delivered pursuant to this
Indenture, other than any such Debentures in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Debentures are held by a bona
fide purchaser in whose hands such Debentures are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount at maturity of the Outstanding Debentures have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debentures owned by the Company or any other obligor upon the Debentures 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 Debentures which the Trustee knows to
be so owned shall be so disregarded. Debentures so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not the Company or any other obligor upon the
Debentures 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.
18
"Paying Agent" means any Person authorized by the Company to pay
the Accreted Value of (and premium, if any) or interest on any Debentures on
behalf of the Company.
"Payment Default" has the meaning set forth in Section 501.
"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;
(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
19
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 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):
20
(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 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 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; and
(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;
21
(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
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 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;
22
(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 the 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 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
23
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 Senior Subordinated Notes and the
Guarantees thereon;
(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;
(24) Liens arising from filing Uniform Commercial Code
financing statements regarding leases; and
(25) Liens securing the Debentures under the Indenture.
"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:
24
(a) the principal amount of Indebtedness permitted
(whether or not borrowed) under clause (1) of the
second paragraph of Section 1008; and
(b) 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 Debentures, 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 Debentures on terms at least as favorable
to the Holders of Debentures 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).
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Principals" means Welsh Carson, Ferrer Freeman and their
respective Affiliates.
"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.
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"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
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:
26
(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
(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
27
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 Debenture to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Debenture 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 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 Global Debenture" has the meaning set forth in
Section 201.
"Regulation S Permanent Global Debenture" has the meaning set
forth in Section 201.
"Regulation S Temporary Global Debenture" 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.
"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
28
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 Global Debenture" has the meaning set forth in
Section 201.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"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 as of
August 17, 1999 among the Company, Concentra Operating Corporation, 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 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
29
Indebtedness is incurred expressly provides that it is
on a parity with or subordinated in right of payment to
the Debentures; 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.
"Senior Subordinated Notes" means the 13% Senior Subordinated
Notes due 2009 issued by Concentra Operating Corporation on the Issue Date and
any Indebtedness of Concentra Operating Corporation issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace, defease
or refund such 13% Senior Subordinated Notes due 2009; PROVIDED that such
Indebtedness complies with clause (1) of the definition of "Permitted
Refinancing Indebtedness".
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"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 principal or
Accreted Value 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.
30
"Stockholders Agreement" means the Stockholders Agreement among
the Principals, Chase Capital Partners, certain officers and employees of
Donaldson, Lufkin & Jenrette Securities Corporation, certain members of the
Company's management and the Company dated as of August 17, 1999.
"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 is such Person or a Subsidiary of
such Person or (b) the only general partners of which are
such Person or of one or more Subsidiaries of such Person
(or any combination thereof); and
(3) any Permitted Joint Venture of such Person.
"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 the Company (the
"Merger");
(2) the solicitation and repurchase of $230.0 million
principal amount of the Company's outstanding 4.5%
Convertible Subordinated Notes due 2003 and $97.8 million
principal amount of the Company's outstanding 6.0%
Convertible Subordinated Notes due 2001 conditional upon
the Merger,
(3) the contribution of all the Company's assets and shares in
its subsidiaries to Concentra Operating Corporation;
(4) the $190.0 million offering of the Senior Subordinated
Notes;
(5) the $216,387,000 (face value) offering of the Debentures;
(6) the $375.0 million of borrowings by Concentra Operating
Corporation under new term loan facilities, which,
together with the new $100.0 million revolving credit
facility, shall replace the Company's existing senior
credit facility;
31
(7) the equity investment in the Company 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 the Company of approximately
$30.6 million by affiliates of Ferrer Freeman;
(9) the equity investment in the Company of approximately
$23.0 million by Chase Capital Partners, certain officers
and directors of Donaldson, Lufkin & Jenrette Securities
Corporation, certain members of the Company's management
and potentially 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 the Company's, the lenders
therein, First Union National Bank, as administrative
agent, and Fleet National Bank, as documentation agent.
"Transfer Restricted Debentures" means Debentures 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 Debentures" has the meaning set forth in
Section 305.
"Unrestricted Global Debentures" 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:
(1) has no Indebtedness other than Non-Recourse Debt;
32
(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.
"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.
"U.S. Person" means U.S. Person as defined in Regulation S.
33
"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.
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.
34
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.
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. An Opinion of Counsel may have qualifications customary
for opinions of the type required and counsel delivering such Opinion of Counsel
may rely on certificates of government or other officials customary for opinions
of the type required.
35
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.
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 Debentures shall be proved by the Debentures
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture 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 reliance thereon, whether or not notation of such
action is made upon such Debenture.
(e) The Company may set any day as a record day for the purpose
of determining the Holders of Outstanding Debentures 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 of Debentures, 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
36
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Debentures 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 Debentures 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 at maturity of
Outstanding Debentures 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 Debentures 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
Debentures 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 unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount at maturity of Outstanding
Debentures 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 at maturity of Outstanding Debentures 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
37
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 Debenture may do so
with regard to all or any part of the Accreted Value of such Debenture 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 Accreted Value.
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.
38
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 Debenture 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.
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.
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SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures
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 Debentures, 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 AND THE DEBENTURES 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.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Debenture shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Debentures) payment of interest or Accreted Value (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, as such, shall have any liability for any obligations of the
Company under the Debentures, 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 Debenture waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Debentures.
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ARTICLE TWO
Debenture Forms
SECTION 201. FORMS GENERALLY.
The Debentures (including the Trustee's certificates of
authentication) shall be in substantially the form set forth in Exhibit A 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
Debentures, as evidenced by their execution of the Debentures.
The Definitive Debentures 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 Debentures may be listed, all as
determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
The Debentures shall be initially issued as Definitive Debentures
which are Transfer Restricted Debentures. If in subsequent transfers the
Debentures are offered and sold to QIB's in reliance on Rule 144A or in offshore
transactions in reliance on Regulation S, the purchasers thereof may exchange
such Definitive Debentures for a beneficial interest in a global Debenture in
conformity with the customary requirements of The Depository Trust Company (the
"Depositary") 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.
Any such Debenture issued to a QIB shall be represented by one or
more Debentures in registered global form without interest coupons
(collectively, the "Rule 144A Global Debenture") and any such Debenture issued
in connection with offshore transactions in reliance on Regulation S shall, if
such Debentures are subject to the restricted period pursuant to Rule 903 (the
"restricted period"), be represented by one or more temporary Debentures in
registered global form without interest coupons (collectively, the "Regulation S
Temporary Global Debenture") and if not so restricted, by one or more permanent
registered global Debentures without interest coupons (the "Regulation S
Permanent Global Debentures" and together with the Regulation S Temporary Global
Debenture, the "Regulation S Global Debenture"). The Regulation S Global
Debenture shall be deposited on behalf of the subscribers thereof with a
custodian for the Depositary. The Regulation S Global Debenture shall be
registered in the name of a nominee of the Depositary for credit to the
subscribers' respective
41
accounts at Euroclear System ("Euroclear") and CEDEL Bank, S.A. ("CEDEL").
Beneficial interests in the Regulation S Global Debenture may be held only
through Euroclear or CEDEL.
If applicable, within a reasonable period of time after the
expiration of the restricted period, the Regulation S Temporary Global Debenture
shall be exchanged for one or more Regulation S Permanent Global Debentures 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 Debenture 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 Debenture may not be
transferred to a Person that takes delivery thereof in the form of an interest
in the Rule 144A Global Debenture. After the restricted period, (i) beneficial
interests in the Regulation S Permanent Global Debentures may be transferred to
a Person that takes delivery in the form of an interest in the Rule 144A Global
Debenture and (ii) beneficial interests in the Rule 144A Global Debenture may be
transferred to a Person that takes delivery in the form of an interest in the
Regulation S Permanent Global Debentures, PROVIDED, that the certification
requirements described in Section 305(e) hereof are complied with.
Any Debenture transferred pursuant to an effective registration
statement under the Securities Act or pursuant to the exemption from
registration provided by Rule 144 may be exchanged in accordance with Section
305 for Unrestricted Debentures. Unrestricted Debentures initially shall be
represented by one or more Debentures in registered global form without interest
coupons (collectively, the "Unrestricted Global Debentures"). The Unrestricted
Global Debenture shall be deposited with the Trustee as custodian for the
Depository in New York, New York and registered in the name of the Depository or
its nominee, in each case for credit to an account of a direct or indirect
participant in the Depository.
ARTICLE THREE
The Debentures
SECTION 301. TITLE AND TERMS.
(a) The aggregate principal amount at maturity of Notes which may
be authenticated and delivered under this Indenture is limited to $216,230,000,
except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures 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 Debentures shall be known and designated as the "14% Senior
Discount Debentures due 2010" of the Company. Their Stated Maturity shall be
August 15, 2010.
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The Debentures are general unsecured obligations of the Company
that shall rank PARI PASSU in right of payment to all existing and future Senior
Indebtedness of the Company and senior to all existing and future subordinated
Indebtedness of the Company.
(b) The Company will pay interest semi-annually in arrears on
each Interest Payment Date, or if any such day is not a Business Day, on the
next succeeding Business Day, commencing on February 15, 2005. The Debentures
will not bear or accrue cash interest until August 15, 2004. Cash interest on
the Debentures will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from August 15, 2004. The Company shall
make each interest payment to the Holders of record on the immediately preceding
February 1 and August 1 until the principal amount at maturity thereof is paid
or made available for payment, and at the rate of 15% per annum on any overdue
principal at maturity and premium, if any, and on any overdue installment of
interest, if any, until paid.
(c) On any Interest Payment Date after the Full Accretion Date,
the Company shall pay such amount of accrued original issue discount on the
Debentures as shall be necessary to ensure that the Debenture shall not be
considered an "applicable high yield discount obligation" with in the meaning of
Section 163(i) of the Code or any successor provision. The Company shall
calculate and provide notice to the Trustee of any such amount. The Trustee
shall be entitled to rely conclusively on the Company's calculation.
(d) If a Holder has given wire transfer instruction to the
Company, the Company shall make all Accreted Value, premium and interest
payments on the Holder's Debentures in accordance with such instruction. All
other payments of the Accreted Value of (and premium, if any) and interest on
the Debentures 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 Debenture 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 Debentures 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.
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The Debentures shall be subject to defeasance at the option of
the Company as provided in Article Twelve.
SECTION 302. REGISTERED FORM.
The Debentures shall be issuable only in registered form without
coupons.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debentures 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 Debentures may be
manual or facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of 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 Debentures or
did not hold such offices at the date of such Debentures.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debentures; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Debentures as in
this Indenture provided and not otherwise.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debenture a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder.
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SECTION 304. TEMPORARY DEBENTURES.
Pending the preparation of Definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company shall cause
Definitive Debentures to be prepared without unreasonable delay. After the
preparation of Definitive Debentures, the temporary Debentures shall be
exchangeable for Definitive Debentures upon surrender of the temporary
Debentures at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debentures the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount at
maturity of Definitive Debentures of authorized denominations. Until so
exchanged the temporary Debentures shall in all respects be entitled to the same
benefits under this Indenture as Definitive Debentures.
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 "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and of transfers of Debentures. The
Trustee is hereby appointed "Debenture Registrar" for the purpose of registering
Debentures and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture 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 Debentures of any authorized denominations and of a like aggregate principal
amount at maturity.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations and of a like aggregate
principal amount at maturity, upon surrender of the Debentures to be exchanged
at such office or agency. Whenever any Debentures are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures which the Holder making the exchange is entitled to
receive.
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All Debentures issued upon any registration of transfer or
exchange of Debentures shall be the valid obligation of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Debentures surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES. When
Definitive Debentures are presented to the Debenture Registrar with a request
(x) to register the transfer of such Definitive Debentures or (y) to exchange
such Definitive Debentures for an equal principal amount at maturity of
Definitive Debentures of other authorized denominations, the Debenture 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 Debentures 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 Debenture Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Debentures that
are Definitive Debentures, shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Debenture is
being delivered to the Debenture 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 Debenture); or
(B) if such Transfer Restricted Debenture is
being transferred to a QIB that is aware that any sale of
Debentures to it shall be made in reliance on Rule 144A and that
is acquiring such Transfer Restricted Debenture 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 Debenture); or
(C) if such Transfer Restricted Debenture is
being transferred pursuant to an exemption from registration in
accordance with Rule 144, or
46
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 Debenture); or
(D) if such Transfer Restricted Debenture 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 Debenture) and an
Opinion of Counsel from the Holder reasonably acceptable to the
Company, the Trustee, and to the Debenture Registrar to the
effect that such transfer is in compliance with the Securities
Act.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE DEBENTURE FOR A
BENEFICIAL INTEREST IN A GLOBAL DEBENTURE. A Definitive Debenture may not be
exchanged for a beneficial interest in a Global Debenture except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Debenture, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Debenture is a Transfer Restricted
Debenture, certification, in substantially the form set forth on the
reverse of the Debenture, that such Definitive Debenture is being
transferred to a QIB in accordance with Rule 144A; and
(ii) whether or not such Definitive Debenture is a
Transfer Restricted Debenture, written instructions directing the
Trustee to make, or to direct the Debentures Custodian to make, an
endorsement on the Global Debenture to reflect an increase in the
aggregate principal amount at maturity of the Debentures represented by
the Global Debenture,
then the Trustee shall cancel such Definitive Debenture and cause, or direct the
Debentures Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Debentures Custodian, the
aggregate principal amount at maturity of Debentures represented by the Global
Debenture to be increased accordingly. If no Global Debentures are then
outstanding, the Company shall issue and the Trustee shall authenticate a new
Global Debenture in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL DEBENTURES. The transfer and
exchange of Global Debentures 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
Debenture may not be transferred as a whole except by the Depositary to a
nominee of the
47
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 DEBENTURE FOR A
DEFINITIVE DEBENTURE.
(i) A Global Debenture is exchangeable for Definitive
Debentures 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 Debenture 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 Debentures 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
Debentures. In all cases, Definitive Debentures delivered in exchange
for any Global Debenture 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 interest in a Global Debenture, 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
Debenture only, and 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
Debenture); or
(B) if such beneficial interest is being
transferred to a QIB that is aware that any sale of Debentures to
it shall be made in reliance on Rule 144A under the Securities
Act and that is acquiring such beneficial interest in the
Transfer Restricted Debenture 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 Debenture); or
48
(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
Debenture); 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 Debenture)
and an Opinion of Counsel from the transferee or transferor
reasonably acceptable to the Company and to the Debenture
Registrar to the effect that such transfer is in compliance with
the Securities Act,
then the Trustee shall cause, or direct the Debentures Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Debentures Custodian, the aggregate principal amount at
maturity of the Global Debenture 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 Debenture
in the appropriate principal amount.
(e) EXCHANGES BETWEEN REGULATION S GLOBAL DEBENTURES AND RULE
144A GLOBAL DEBENTURES. Prior to the expiration of any restricted period,
beneficial interests in the Regulation S Temporary Global Debenture may not be
transferred to a Person who takes delivery in the form of an interest in a Rule
144A Global Debenture. After the expiration of the restricted period, beneficial
interests in Regulation S Permanent Global Debentures may be transferred to a
Person who takes delivery in the form of an interest in a Rule 144A Global
Debenture. 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 Debenture, then the Trustee shall cause, or direct
the Debentures Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Debentures Custodian, the
aggregate principal amount at maturity of the Regulation S Permanent Global
Debenture to be decreased and the aggregate principal amount at maturity of the
Rule 144A Global Debenture to be increased by the principal amount at maturity
of the beneficial interest in the Regulation S Permanent Global Debenture to be
exchanged, to credit, or cause to be credited, to the account of the transferor
a beneficial interest in the Rule 144A Global Debenture equal to the reduction
in the aggregate principal amount at maturity of the Regulation S Permanent
Global Debenture, and to debit, or cause to be debited, from the account of the
transferor the beneficial interest in the Regulation S Permanent Global
Debenture that is being exchanged or transferred.
49
Prior to the expiration of any restricted period, beneficial
interests in the Rule 144A Global Debenture may not be transferred to any Person
that takes delivery thereof in the form of an interest in the Regulation S
Temporary Global Debenture. After the expiration of such restricted period,
beneficial interests in the Rule 144A Global Debenture may be transferred to a
Person who takes delivery in the form of an interest in the Regulation S
Permanent Global Debenture 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 Debenture, then the Trustee shall cause, or direct the
Debentures Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Debentures Custodian, the
aggregate principal amount at maturity of the Rule 144A Global Debenture to be
decreased and the aggregate principal amount of the Regulation S Permanent
Global Debenture to be increased by the principal amount at maturity of the
beneficial interest in the Rule 144A Global Debenture 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 Debenture equal to the reduction
in the aggregate principal amount at maturity of the Rule 144A Global Debenture,
and to debit, or cause to be debited, from the account of the transferor the
beneficial interest in the Rule 144A Global Debenture that is being exchanged or
transferred.
(f) RESTRICTIONS ON TRANSFER AND EXCHANGE OF REGULATION S
TEMPORARY GLOBAL DEBENTURES. A holder of a beneficial interest in a Regulation S
Temporary Global Debenture 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 Debenture
is either not a U.S. Person or has purchased such interest in a transaction that
is exempt from the registration requirements under the Securities Act, 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
Annex B prior to (i) the payment of interest or Accreted Value with respect to
such holder of beneficial interests in the Regulation S Temporary Global
Debenture and (ii) any exchange of such beneficial interest for a beneficial
interest in a Regulation S Permanent Global Debenture.
(g) LEGENDS.
(i) Except as permitted by the following paragraphs (iv)
and (v), each certificate evidencing the Global Debentures and the
Definitive Debentures (and all Debentures issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
"THIS DEBENTURE (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
50
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) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
DEBENTURE 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
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
DEBENTURE 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 DEBENTURE IN
VIOLATION OF THE FOREGOING."
(ii) Except as permitted by the following paragraphs
(iii), (iv) and (v), each Regulation S Temporary Global Debenture (and
all Debentures issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the form set forth in the form of
Debenture attached to this Indenture.
(iii) Except as permitted by the following paragraphs (iv)
and (v), each Regulation S Permanent Global Debenture (and all
Debentures issued in exchange
51
therefor or substitution thereof) shall bear a legend in substantially
the form set forth in the form of Debenture attached to this Indenture.
(iv) Upon any sale or transfer of a Transfer Restricted
Debenture (including any Transfer Restricted Debenture represented by a
Global Debenture) pursuant to Rule 144 or an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted
Debenture, the Debenture Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Debenture for a
Definitive Debenture 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 Debenture; and
(B) any such Transfer Restricted Debenture
represented by a Global Debenture 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 Debenture that is
represented by a Global Debenture for a Definitive Debenture that
does not bear a legend, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the
Debenture 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 Debenture).
(v) Any Debenture transferred pursuant to an effective
registration statement under the Securities Act or pursuant to the
exemption from registration provided by Rule 144 (collectively,
"Unrestricted Debentures") may be exchanged for a Debenture or
Unrestricted Debenture that does not bear the legend set forth in (i),
(ii) or(iii) above or paragraph (i) below and the Trustee shall rescind
any restriction on the transfer of such Debenture or unrestricted
Debenture.
(h) ORIGINAL ISSUE DISCOUNT LEGEND. Each Debenture shall bear a
legend in substantially the following form:
"THIS DEBENTURE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") AS DEFINED BY
SECTION 1273(a)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE
FOLLOWING INFORMATION IS PROVIDED PURSUANT TO THE INFORMATION REPORTING
REQUIREMENTS SET FORTH IN TREASURY REGULATION 1.1275-3.
THE ISSUE PRICE OF THIS DEBENTURE IS 76.069% OF ITS ORIGINAL ACCRETED VALUE. THE
AMOUNT OF OID ON THIS DEBENTURE IS EQUAL TO THE EXCESS OF
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ALL THE PAYMENTS TO BE MADE ON THIS DEBENTURE OVER THIS DEBENTURE'S ISSUE PRICE.
THE ISSUE DATE OF THIS DEBENTURE IS AUGUST 17, 1999. THE PER ANNUM YIELD TO
MATURITY OF THIS DEBENTURE IS 17.21% COMPOUNDED SEMI-ANNUALLY."
(i) INITIAL TRANSFER LEGEND.
"THIS DEBENTURE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNTIL THE DATE
THE INITIAL PURCHASERS SELL AT LEAST 50% OF THE OUTSTANDING DEBENTURES EXCEPT,
SUBJECT TO THE OTHER RESTRICTIONS ON TRANSFER HEREIN, AT ANY TIME AND FROM TIME
TO TIME A HOLDER MAY SELL OR OTHERWISE TRANSFER DEBENTURES IF SUCH TRANSFERRED
DEBENTURES HAVE AN AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF $5,000,000 OR
MORE."
(j) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL DEBENTURE. At such
time as all beneficial interests in a Global Debenture have either been
exchanged for Definitive Debentures or beneficial interests in other Global
Debentures, redeemed, repurchased or canceled, such Global Debenture 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 Debenture is exchanged for
Definitive Debentures or a beneficial interest in another Global Debenture,
redeemed, repurchased or canceled, the principal amount at maturity of
Debentures represented by such Global Debenture shall be reduced and an
endorsement shall be made on such Global Debenture, by the Trustee or the
Debentures Custodian, at the direction of the Trustee, to reflect such
reduction.
(k) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
DEFINITIVE DEBENTURES. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive Debentures
and Global Debentures at the Debenture Registrar's request.
(l) GENERAL. No service charge shall be made for any registration
of transfer or exchange of Debentures, 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 Debentures, 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 Debenture during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Debentures 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
53
exchange any Debenture so selected for redemption in whole or in part, except
the unredeemed portion of any Debenture being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If any mutilated Debenture is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Debenture of like tenor and principal amount at maturity 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
Debenture 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 Debenture 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
Debenture, a new Debenture of like tenor and principal amount at maturity and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture 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
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Debenture 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 Debentures 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 Debentures.
54
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture 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 Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date immediately
preceding such Interest Payment Date.
Any interest on any Debenture 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 Debentures (or their
respective Predecessor Debentures) 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 Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest 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 Debenture 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
Debentures (or their respective Predecessor Debentures) 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 Debentures 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
55
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debenture 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 Debenture is registered as the owner of
such Debenture for the purpose of receiving payment of Accreted Value of (and
premium, if any) and (subject to Section 307) interest on such Debenture and for
all other purposes whatsoever, whether or not such Debenture 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 Debentures 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 Debentures previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Debentures
so delivered shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Debentures shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. CUSIP AND ISIN NUMBERS.
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The Company in issuing Debentures 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 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 Debentures
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
Debentures, 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 Debentures
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 Debentures theretofore authenticated and delivered
(other than (i) Debentures which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Debentures 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 Debentures 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
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of
57
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 an amount sufficient to pay and discharge the entire
indebtedness on such Debentures not theretofore delivered to the
Trustee for cancellation, for Accreted Value (and premium, if
any) and interest to the date of such deposit (in the case of
Debentures 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 Debentures 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 Accreted Value (and premium,
if any) and interest for whose payment such money has been deposited with the
Trustee.
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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 Debentures;
(2) default in payment when due of the Accreted Value of or
premium, if any, on the Debentures;
(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 at
maturity of the Debentures then outstanding voting as a
single class to comply with any of its other agreements in
this Indenture or the Debentures;
(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 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
59
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 after the entry of such
judgment or judgments;
(7) 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 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
(8) 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 any substantial part of the property of the
Company or any of its Restricted
60
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.
Notwithstanding any provision herein to the contrary, the
nonpayment of any amounts required to be paid by the Company pursuant to Section
301(c) shall not constitute a Default or an Event of Default; PROVIDED HOWEVER
that during any period of any such nonpayment the Debentures shall accrue
interest at the rate borne by the Debentures plus 1% per annum.
In the event of a declaration of acceleration of the Debentures
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 Debentures 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 Debentures would not
conflict with any judgment or decree of a court of
competent jurisdiction; and
(b) all existing Events of Default, except nonpayment of
Accreted Value or interest on the Debentures that became
due solely because of the acceleration of the Debentures,
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 at maturity of the Outstanding
Debentures may declare all of the Debentures to be due and payable immediately
in an amount equal to (x) the Accreted Value of the Debentures outstanding on
the date of acceleration, if such declaration is made prior to the Full
Accretion Date or (y) the entire principal amount at maturity of all the
Debentures outstanding on the date of acceleration plus accrued interest, if
any, to the date of acceleration if such declaration is made after the Full
Accretion Date.
Notwithstanding the preceding paragraph, in the case of an Event
of Default described in clause (7) or (8) of Section 501, with respect to the
Company or any of its
61
Subsidiaries, all Outstanding Debentures shall become due and payable
immediately without further action or notice in an amount equal to (x) the
Accreted Value of the Debentures outstanding on the date of acceleration, if
such declaration is made prior to the Full Accretion Date or (y) the entire
principal amount at maturity of all the Debentures outstanding on the date of
acceleration plus accrued interest, if any, to the date of acceleration if such
declaration is made after the Full Accretion Date.
In the case any Event of Default occurs 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 Debentures 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 Debentures.
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 at maturity of the Outstanding
Debentures, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if the Company has paid or deposited
with the Trustee a sum sufficient to pay and except on default with respect to
any provision requiring a supermajority approval to amend, which may only be
waived by such supermajority, all existing Events of Default, other than the
non-payment of the Accreted Value of, premium, if any, and interest on the
Debentures 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.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
Subject to the second paragraph of Section 501, the Company
covenants that if
(1) default is made in the payment of any interest on any
Debenture when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the Accreted Value of (or
premium, if any, on) any Debenture at the Maturity thereof or, with
respect to any Debenture 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,
62
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for Accreted Value (and premium, if any) and, if after the Full
Accretion Date, interest, 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, at the rate provided by the Debentures, 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 Debentures
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
Debentures, 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,
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 Debentures), 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, 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
Debentures 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
63
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 DEBENTURES.
All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be 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 Debentures 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 Accreted Value (or
premium, if any) or interest, upon presentation of the Debentures 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
Accreted Value of (and premium, if any) and, if after the Full Accretion
Date, interest on the Debentures 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
Debentures for Accreted Value (and premium, if any) and, if after the
Full Accretion Date, interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debenture 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
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount at
maturity of the Outstanding Debentures 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 at maturity of the Outstanding Debentures;
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 ACCRETED
VALUE, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Debenture shall have the right, which is absolute and unconditional, to
receive payment of the Accreted Value of (and premium, if any) and (subject to
Section 307) interest on such Debenture on the respective Stated Maturities
expressed in such Debenture (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 Debenture, 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 Debentures 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
Debenture 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.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount at
maturity of the Outstanding Debentures 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
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(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 at maturity of the Outstanding Debentures may on behalf of the Holders of
all the Debentures 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 Accreted Value of (or premium, if any)
or interest on any Debenture (including any Debenture 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 Debenture 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.
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.
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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.
(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.
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(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 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 Accreted Value of, premium, if
any, or interest on any Debenture, 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, 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
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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;
(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, 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 DEBENTURES.
The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be accountable for the use
or application by the Company of the Debentures or the proceeds thereof.
SECTION 605. MAY HOLD DEBENTURES.
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The Trustee, any Paying Agent, any Debenture Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Debentures 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, Debenture 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
(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.
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To secure the Company's payment obligations in this Section 607,
the Trustee shall have a lien prior to the Debentures 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 Debentures.
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 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.
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(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount at maturity of the Outstanding Debentures,
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 Trustee being removed may
petition any court of competent jurisdiction for the appointment of a 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 Debenture 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 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 Debenture 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 at maturity of the Outstanding
Debentures 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 Debenture 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.
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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, 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 Debentures 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 Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debentures.
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 Debentures), 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.
If the Trustee is not the Debenture Registrar, 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 Debenture 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 Debenture
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 Debentures and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee 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.
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(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 Debentures are listed, with the Commission and with the Company. The
Company shall promptly notify the Trustee when the Debentures 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
Debentures 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 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 effectiveness of a registration
statement 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 Debentures 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.
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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 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 Debentures 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
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(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.
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 Debentures.
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SECTION 803. TRANSFER OF SUBSIDIARY ASSETS.
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.
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 Debentures in addition to or
in place of certificated Debentures;
(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;
(6) to provide for the issuance of additional Debentures in
accordance with the limitations set forth in this
Indenture; or
(7) to allow any Subsidiary to guarantee the Debentures.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount at maturity of the Outstanding Debentures, 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 that no such modification may, without the consent of each Holder
thereby:
(1) reduce the Accreted Value of Debentures whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the Accreted Value of or change the Stated Maturity
of any Debenture or alter the provisions with respect to
the redemption of the Debentures (other than Sections 1014
or 1015) or amend or modify the calculation of Accreted
Value so as to reduce the amount of the Accreted Value on
the Debentures;
(3) reduce the rate of or change the time for payment of
interest on any Debenture;
(4) waive a Default or Event of Default in the payment of
Accreted Value of or premium, if any, or interest on the
Debentures (except a rescission of acceleration of the
Debentures by the Holders of at least a majority in
aggregate principal amount at maturity of the Debentures
and a waiver of the payment default that resulted from
such acceleration);
(5) make any Debenture payable in money other than that stated
in the Debentures;
(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 Accreted Value of or
premium, if any, or interest on the Debentures;
(7) cause the Debentures to be subordinated to any other
Indebtedness of the Company;
(8) waive a redemption payment with respect to any Debenture
(other than a payment under Sections 1014 or 1015); or
(9) make any change in the preceding amendment and waiver
provisions.
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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.
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 DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures 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 Debentures 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 Debentures.
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SECTION 907. AMENDMENTS AT THE REQUEST OF HOLDERS.
Notwithstanding any provision herein to the contrary, if the
Initial Purchasers holding not less than a majority in aggregate principal
amount at maturity of the Outstanding Debentures notify the Company that such
Holders intend to sell or otherwise transfer at least a majority in aggregate
principal amount at maturity of the Outstanding Debentures, the Company will, if
requested by such Holders, negotiate in good faith with such Holders to amend
any provision herein to reflect terms that are contained in similar types of
indebtedness as the Debentures of similarly situated companies being issued at
or about the time of such request.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF ACCRETED VALUE, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the Accreted Value of
(and premium, if any) and any interest on the Debentures in accordance with the
terms of the Debentures and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City
of New York, an office or agency where Debentures may be presented or
surrendered for payment, where Debentures may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Debentures 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 Debentures 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
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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 DEBENTURE 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 Accreted Value of (and premium, if any)
or interest on any of the Debentures, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the Accreted
Value (and premium, if any) or interest 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.
Whenever the Company shall have one or more Paying Agents, it
shall, prior to each due date of the Accreted Value of (and premium, if any) or
interest on any Debentures, deposit with a Paying Agent a sum sufficient to pay
the Accreted Value (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such Accreted
Value, premium, interest, 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 Accreted
Value of (and premium, if any) or interest on Debentures
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 Debentures) in the making of
any payment of Accreted Value (and premium, if any) or
interest; 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 Accreted Value of (and
premium, if any) or interest on any Debenture and remaining unclaimed for two
years after such Accreted Value (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
Debenture 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 its
Restricted 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.
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.
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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 would not result in a material adverse effect on the Company.
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.
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 would have been at least
1.75 to 1, determined on a PRO FORMA basis (including a PRO FORMA application of
the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or preferred stock had been issued, as the
case may be, at the beginning of such four-quarter period.
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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 Restricted Subsidiaries 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;
(3) the incurrence by Concentra Operating Corporation and its
Subsidiaries of Indebtedness represented by the Senior
Subordinated Debentures and the Guarantees thereon;
(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 (14) or (15) 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 is the obligor on such Indebtedness,
such Indebtedness must be expressly subordinated to
the prior payment
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in full in cash of all Obligations with respect to
the Debentures; 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;
(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
87
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 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;
(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;
and
(15) the incurrence by the Company of Indebtedness represented
by the Debentures.
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 (15)
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
88
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.
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 Debentures,
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;
89
(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) and (11) and (12) 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 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
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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;
(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;
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(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;
(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;
(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 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 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 shall be included in
subsequent calculations of the amount of Restricted
Payments;
(8) loans or advances to employees or directors of the Company
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 Concentra
Operating Corporation, in an aggregate amount not to
exceed $5 million at any one time outstanding; PROVIDED
that the amount of any such payments shall 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
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thereof; PROVIDED that the amount of any such payments
shall 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,
payments of principal, interest, premium (if any) or
payment due upon redemption, repurchase, conversion,
acquisition or retirement of the Company's 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;
(11) Permitted Investments;
(12) distributions to fund the Transactions; and
(13) other Restricted Payments in an aggregate amount not to
exceed $5 million at any one time; PROVIDED that the
amount of any such payments shall 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:
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(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;
(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;
(b) this Indenture and the Debentures; and
(c) the Senior Subordinated 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 the Person,
or the property or assets of the Person, so
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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 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.
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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 (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 Debentures, the Debentures 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 Debentures 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 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 of the
Company set forth in an Officers' Certificate
certifying that such Affiliate Transaction
complies with clause (1) above and that such
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Affiliate Transaction has been approved by a
majority of the disinterested members of the Board
of Directors; and
(b) with respect to any Affiliate Transaction 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 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
97
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 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;
(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 Debentures 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 1.5 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 1.5 to 1.
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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.
SECTION 1014. REPURCHASE OF DEBENTURES AT THE OPTION OF THE HOLDER
UPON A CHANGE OF CONTROL.
(1) 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 Debentures pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the Accreted Value thereof on any Redemption Date plus,
after the Full Accretion Date, accrued and unpaid interest 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 Debentures 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 Debenture not tendered shall continue to accrue
interest;
(e) that, unless the Company defaults in the payment of the
Change of Control Payment, all Debentures accepted for
payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Purchase Date;
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(f) that Holders electing to have any Debentures purchased
pursuant to a Change of Control Offer shall be required to
surrender the Debentures, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the
Debentures 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 second Business Day preceding the Purchase
Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount
at maturity of Debentures delivered for purchase, and a
statement that such Holder is withdrawing his election to
have the Debentures purchased; and
(h) that Holders whose Debentures are being purchased only in
part shall be issued new Debentures equal in principal
amount at maturity to the unpurchased portion of the
Debentures surrendered, which unpurchased portion must be
equal to $1,000 in principal amount at maturity 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 Debentures 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 Debentures 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 Debentures or
portions thereof so tendered; and
(c) deliver or cause to be delivered to the Trustee the
Debentures so accepted together with an Officers'
Certificate stating the aggregate Accreted Value of
Debentures or portions thereof being purchased by the
Company.
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The Paying Agent shall promptly mail to each Holder of Debentures
so tendered the Change of Control Payment for such Debentures, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Debenture equal in principal amount at maturity to any
unpurchased portion of the Debentures surrendered, if any; provided that each
such new Debenture shall be in a principal amount at maturity 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) 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 Debentures 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 Senior 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.
(4) 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
Debentures validly tendered and not withdrawn under such Change of Control
Offer.
SECTION 1015. REPURCHASE OF DEBENTURES 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
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(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 Debentures,
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 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 Indebtedness of 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.
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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 Debentures (an
"Asset Sale Offer") to purchase the maximum Accreted Value of Debentures that
may be purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer shall be equal to 100% of the Accreted Value thereof on any Redemption
Date plus, after the Full Accretion Date, 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 Accreted Value
of Debentures tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Debentures 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. 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 1018. 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
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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
(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 1019. 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 1020. 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 C. Each intercompany note shall be payable upon demand
and shall bear interest at the same rate as the Debentures.
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SECTION 1021. 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 Debentures 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 1022. 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 1021, 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 provisions 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
Debentures 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 1023. 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 1021, if
before the time for such compliance the Holders of at least a majority in
principal amount at maturity of the Outstanding Debentures 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 Debenture affected, such provision may only be waived by the consent
of each and every Holder of outstanding Debenture affected.
ARTICLE ELEVEN
Redemption of Debentures
SECTION 1101. OPTIONAL REDEMPTION.
The Company may redeem all or a part of these Debentures, upon
not less than 30 nor more than 60 days' notice, at the redemption price for each
Debenture equal to the sum of (x) the Accreted Value thereof on any Redemption
Date less the Accreted Value thereof on the Issue Date and (y) the percentage
set forth below of the Accreted Value thereof on the Issue Date (based on the
twelve-month period beginning on August 17 of the years indicated below):
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Year Percentage
---- ----------
1999 107%
2000 106%
2001 105%
2002 104%
2003 103%
2004 and thereafter 100%
The Company may redeem at any time all of the Debentures, upon
not less than 30 nor more than 60 days' notice, at 100% of the Accreted Value
thereof on any Redemption Date plus accrued and unpaid interest, if any, with
the cash proceeds of any unsecured Indebtedness of the Company issued to
refinance, replace or refund all of the outstanding Debentures.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Debentures 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.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debentures 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 Debentures, the Company
shall, at least 45 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 at maturity of
Debentures to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF DEBENTURES TO BE REDEEMED.
If less than all of the Debentures are to be redeemed at any
time, the Trustee shall select Debentures for redemption, not more than 60 days
prior to the Redemption Date, as follows:
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(1) if the Debentures are listed, in compliance with the
requirements of the principal national securities exchange
on which the Debentures are listed; or
(2) if the Debentures 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 Debenture
Registrar in writing of the Debentures selected for redemption and, in the case
of any Debentures selected for partial redemption, the principal amount thereof
to be redeemed.
Debentures and portions of Debentures selected shall be in
amounts of $1,000 or whole multiples of $1,000; except that if all of the
Debentures of a Holder are to be redeemed, the entire outstanding amount of
Debentures held by such Holder, even if not a multiple of $1,000, shall be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount at maturity of such Debentures 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 Debentures to be redeemed, at his address appearing in
the Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial
redemption, the Accreted Value or the principal amount at
maturity of such Debenture) of the particular Debentures
to be redeemed, and in the case of partial redemption, a
statement as the effect that upon surrender of such
Debentures, a new Debenture in a principal amount at
maturity equal to the unredeemed portion thereof shall be
issued upon cancellation of the original Debenture,
108
(4) that on the Redemption Date the Redemption Price shall
become due and payable upon each such Debenture to be
redeemed, and
(5) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Debentures 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.
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 on, all
the Debentures which are to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay the
Redemption Price of, and any applicable accrued interest on, all Debentures to
be redeemed.
SECTION 1107. DEBENTURES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Debentures 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 Debentures or portions of them called for
redemption shall not bear interest. Upon surrender of any such Debenture for
redemption in accordance with said notice, such Debenture shall be paid by the
Company at the Redemption Price, together with any applicable accrued interest
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 Debentures, or one or more Predecessor Debentures,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
109
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the Accreted Value(and premium, if any) shall,
until paid, bear interest, if any, from the Redemption Date at the rate provided
by the Debenture.
SECTION 1108. DEBENTURES REDEEMED IN PART.
Any Debenture 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 Debenture without service
charge, a new Debenture or Debentures, of any authorized denomination as
requested by such Holder, in aggregate principal amount at maturity equal to and
in exchange for the unredeemed portion of the principal of the Debenture 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 Debentures 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 Debentures on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Debentures and to have satisfied all its other obligations
under such Debentures and this Indenture insofar as such Debentures are
concerned (and 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 Accreted Value of, premium, if any, and
interest on such Debentures when such payments are due from the trust funds;
(ii) the Company's obligations with respect to such Debentures concerning
Sections 304, 305, 306, 1002 and 1003; (iii) the rights, powers, trust, duties,
and immunities of the Trustee, and the Company's
110
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 released with respect to its (i)
obligations under Sections 1005 through 1021, 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 1021, 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 Debentures shall be unaffected thereby.
SECTION 1204. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the then Outstanding Debentures:
(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 Debentures, 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
Accreted Value of, premium, if any, and interest on the Outstanding
Debentures on the Stated Maturity or on the applicable Redemption Date,
as the case may be, and the Company must specify whether the Debentures
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,
111
subject to customary assumptions and exclusions, the Holders of the
Outstanding Debentures 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 Debentures 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
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 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 Debentures or any
other Debentures shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in paragraphs
(7) or (8) 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.
112
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 (or other qualifying trustee--collectively, for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Debentures shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Debentures 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 Debentures, of all sums due and to become due thereon in respect of
Accreted Value (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the Accreted Value 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
Debentures.
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.
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 Debentures 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 Accreted Value of (and premium, if any) or interest on any Debenture
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Debentures to receive such payment from the
money held by the Trustee or the Paying Agent.
113
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, all as of the day and year first above
written.
CONCENTRA MANAGED CARE, INC.
By /s/ Daniel J. Thomas
---------------------------
Name: Daniel J. Thomas
Title: President
Attest:
/s/ Richard A. Parr II
- -------------------------
Name: Richard A. Parr II
Title: Secretary
UNITED STATES TRUST COMPANY OF NEW YORK
By /s/ Gerard F. Ganey
--------------------------
Name: Gerard F. Ganey
Title: Senior Vice President
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
the ________ of Concentra Managed Care, 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
________, 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
EXHIBIT A
[FORM OF DEBENTURE]
Unless and until it is exchanged in whole or in part for
Debentures in definitive form, this Debenture 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.
Unless this certificate is presented by an authorized representative of The
Depositary Trust Company (55 Water Street, New York, New York)(the
"Depositary"), 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
the Depositary (and any payment is made to Cede & Co. or such other entity as is
requested by an authorized representative of the Depositary), 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 DEBENTURE (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) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
DEBENTURE 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
- --------
1 This paragraph should only be added if the Debenture is issued in global form.
A-1
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
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
DEBENTURE 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 DEBENTURE IN VIOLATION OF THE FOREGOING."2
THIS DEBENTURE IS A REGULATION S TEMPORARY GLOBAL DEBENTURE 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 GLOBAL DEBENTURE MAY BE MADE FOR AN INTEREST IN A REGULATION S
PERMANENT GLOBAL DEBENTURE OR A RULE 144A GLOBAL DEBENTURE DURING THE RESTRICTED
PERIOD.3
THIS DEBENTURE 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 DEBENTURE IS REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF IS AVAILABLE.4
"THIS DEBENTURE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") AS DEFINED BY
SECTION 1273(a)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
- ------------------
2 This paragraph should be included only for the Transfer Restricted Debentures.
3 This paragraph should be included only for Regulation S Temporary Global
Debentures.
4 This paragraph should be included only for Regulation S Permanent Global
Debentures.
A-2
AMENDED. THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO THE INFORMATION
REPORTING REQUIREMENTS SET FORTH IN TREASURY REGULATION 1.1275-3.
THE ISSUE PRICE OF THIS DEBENTURE IS 76.069% OF ITS ORIGINAL
ACCRETED VALUE. THE AMOUNT OF OID ON THIS DEBENTURE IS EQUAL TO THE EXCESS OF
ALL THE PAYMENTS TO BE MADE ON THIS DEBENTURE OVER THIS DEBENTURE'S ISSUE PRICE.
THE ISSUE DATE OF THIS DEBENTURE IS AUGUST 17, 1999. THE PER ANNUM YIELD TO
MATURITY OF THIS DEBENTURE IS 17.21% COMPOUNDED SEMI-ANNUALLY."
"THIS DEBENTURE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNTIL THE DATE THE INITIAL PURCHASERS SELL AT LEAST 50% OF THE OUTSTANDING
DEBENTURES EXCEPT, SUBJECT TO THE OTHER RESTRICTIONS ON TRANSFER HEREIN, AT ANY
TIME AND FROM TIME TO TIME A HOLDER MAY SELL OR OTHERWISE TRANSFER DEBENTURES IF
SUCH TRANSFERRED DEBENTURES HAVE AN AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF
$5,000,000 OR MORE."
A-3
CONCENTRA MANAGED CARE, INC.
14% SENIOR DISCOUNT DEBENTURES DUE 2010
CUSIP No.
No. $_________(principal amount at maturity)
Concentra Managed Care, Inc., a corporation duly organized and
existing under the laws of Delaware (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,
2010, and to pay interest semi-annually in arrears of each Interest Payment
Date, or if any such day is not a Business Day, on the next succeeding Business
Day, commencing on February 15, 2005. The Debentures will not bear or accrue
cash interest until August 15, 2004. Cash interest on the Debentures will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from August 15, 2004 at the rate of 14% per annum. The Company shall
make each interest payment to the holders of record on the immediately preceding
February 1 and August 1 until the principal amount at maturity thereof is paid
or made available for payment, and at the rate of 15% per annum on any overdue
principal at maturity and premium, if any, and on any overdue installment of
interest, if any, until paid.
On any Interest Payment Date after the Full Accretion Date, the
Company shall pay such amount of accrued original discount on the Debentures as
shall be necessary to ensure that the Debenture shall not be considered an
"applicable high yield discount obligation" with the meaning of Section 163(i)
of the Internal Revenue Code of 1986, as amended, or any successor provision. On
February 15, 2005 and on each subsequent Interest Payment Date, the Accreted
Value of the Debenture shall be reduced by the amount of accrued original issue
discount required to be paid on such Debenture pursuant to the immediately
preceding sentence. In the event of any such payment of accrued original issue
discount, the Accreted Value of the Debenture shall be further reduced as of its
maturity date to the extent necessary to ensure that the yield to maturity on
the Debenture (determined as provided in Section 1272 of the Code and the
regulations thereunder and computed by taking into account any such payment of
accrued original issue discount) shall equal the yield to maturity on this
Debenture (computed as though no such payment of accrued original discount had
been paid).
Payment of the Accreted Value of (and premium, if any) and
interest on this Debenture 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
A-4
mailed to the address of the Person entitled thereto as such address shall
appear in the Debenture Register.
Reference is hereby made to the further provisions of this
Debenture 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
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated: August 17, 1999
CONCENTRA MANAGED CARE, INC.
By_______________________
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned
Indenture.
Dated: August 17, 1999
UNITED STATES TRUST COMPANY
OF NEW YORK
as Trustee
By ____________________
Authorized Officer
A-7
The [Rule 144A] [Regulation S Temporary] [Regulation S Permanent]
[Global] [Definitive] Debenture is one of a duly authorized issue of Debentures
of the Company designated as its 14% Senior Discount Debentures due 2010 (herein
called the "Debentures"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount at maturity to $216,230,000,
issued and to be issued under an Indenture, dated as of August 17, 1999 (herein
called the "Indenture"), between the Company 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 and the Holders of the Debentures and of the terms upon which the
Debentures are, and are to be, authenticated and delivered.
The Company may redeem all or a part of the Debentures, upon not
less than 30 nor more than 60 days' notice, at the redemption price for each
Debenture equal to the sum of (x) the Accreted Value thereof on any Redemption
Date less the Accreted Value thereof on the Issue Date and (y) the percentage
set forth below of the Accreted Value thereof on the Issue Date (based on the
twelve-month period beginning on August 15 of the years indicated below):
Year Percentage
---- ----------
1999 107%
2000 106%
2001 105%
2002 104%
2003 103%
2004 and thereafter 100%
The Company may redeem at any time all of the Debentures, upon
not less than 30 nor more than 60 days' notice, at 100% of the Accreted Value
thereof on any Redemption Date plus accrued and unpaid interest, if any, with
the cash proceeds of any unsecured Indebtedness of the Company issued to
refinance, replace or refund all of the outstanding Debentures.
The Debentures 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 Debenture in part only, a new Debenture
or Debentures for the
A-8
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, there may
be declared due and payable the Accreted Value of the Debentures, in the manner
and with the effect provided in the Indenture. Upon any acceleration of maturity
of the Debentures, the Debentures shall be due and payable immediately in an
amount equal to (x) the Accreted Value of the Debentures outstanding on the date
of acceleration, if such declaration is made prior to the Full Accretion Date or
(y) the entire principal amount at maturity of all the Debentures outstanding on
the date of acceleration plus accrued interest, if any, to the date of
acceleration if such declaration is made after the Full Accretion Date.
The Debentures are general unsecured obligations of the Company
that shall rank PARI PASSU in right of payment to all existing and future Senior
Indebtedness of the Company and senior to all existing and future subordinated
Indebtedness of the Company.
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
Debentures.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Debenture or (ii) certain restrictive
covenants and Events of Default with respect to this Debenture, 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 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 at maturity of the Debentures at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Debentures at the
time Outstanding, on behalf of the Holders of all the Debentures, 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 Debenture shall be conclusive and binding upon such
Holder and upon all future Holders of this Debenture and of any Debenture 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
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Accreted Value of (and
premium, if any) and interest on this Debenture at the times, place and rate,
and in the coin or currency, herein prescribed.
A-9
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture is registrable in the
Debenture Register, upon surrender of this Debenture 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 accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debenture Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Debentures are issuable only in registered form without
coupons. As provided in the Indenture and subject to certain limitations therein
set forth, Debentures are exchangeable for a like aggregate principal amount at
maturity of Debentures 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 Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture 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 Debenture 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 Debentures, the Holders of not less than 25% in principal
amount at maturity of the Debentures 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 at maturity of Debentures 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 Debenture for the enforcement of any payment of
Accreted Value hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
Interest on this Debenture shall be computed on the basis of a
360-day year of twelve 30-day months.
A-10
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
Debenture solely by reason of his or its status as such stockholder, employee,
officer or director. Each Holder by accepting this Debenture 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 Debenture.
All terms used in this Debenture 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 Debentures under the Indenture, Holders
of Debentures shall have all the rights set forth in the Registration Rights
Agreement.5
The Indenture and this Debenture shall be governed by and
construed in accordance with the laws of the State of New York.
- ---------------
5 This sentence should be included only for the Initial Debentures.
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture 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 Debenture
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 Debenture)
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-12
SCHEDULE OF EXCHANGES6
The following exchanges relating to this Global Debenture have been
made:
Amount of decrease Amount of increase Principal Amount of
in Principal Amount in Principal Amount this Global Debenture Signature of authorized
Date of of this Global of this Global following such officer of Trustee or
Exchange Debenture Debenture decrease (or increase) Debentures Custodian
- ---------------------
6 This schedule should only be added if the Debenture is issued in
global form.
A-13
CERTIFICATE TO BE DELIVERED UPON REGISTRATION OF TRANSFER OF TRANSFER
RESTRICTED DEBENTURES
Re: 14% SENIOR DISCOUNT DEBENTURES DUE 2010 OF CONCENTRA MANAGED CARE, INC.
This Certificate relates to $___________ principal amount at
maturity of Debentures 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 Debenture held by the Depositary a
Debenture or Debentures in definitive, registered form of authorized
denominations and an aggregate principal amount at maturity equal to its
beneficial interest in such Global Debenture (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register
the transfer of a Debenture or Debentures.
In connection with such request and in respect of each such
Debenture, the Transferor does hereby certify that Transferor is familiar with
the Indenture relating to the above-captioned Debentures and as provided in
Section 305 of such Indenture, the transfer of this Debenture does not require
registration under the Securities Act (as defined below) because:
[ ] Such Debenture is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(a)(ii)(A) or Section
305(d)(ii)(A) of the Indenture).
[ ] Such Debenture 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 Debentures to it will be made in reliance on Rule 144A
under the Securities Act and that is acquiring such Transfer Restricted
Debenture 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 Debenture 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).
A-14
[ ] Such Debenture 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-15
CERTIFICATE TO BE DELIVERED UPON REGISTRATION OF TRANSFER OF DEBENTURES
Re: 14% SENIOR DISCOUNT DEBENTURES DUE 2010 OF CONCENTRA MANAGED CARE, INC.
This Certificate relates to $_____ principal amount at maturity
of Debentures held in (check applicable box) _____ book-entry or _____
definitive form by ___________ (the "Transferor").
The Transferor (check applicable box):
o has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Debenture held by the Depositary a
Debenture or Debentures definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in such
Global Debenture (or the portion thereof indicated above); or
o has requested the Trustee by written order to exchange or register the
transfer of a Debenture or Debentures.
------------------------------
[INSERT NAME OF TRANSFEROR]
By:___________________________
Date:_____________________
A-16
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 DEBENTURE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL DEBENTURE FOR REGULATION S PERMANENT GLOBAL
DEBENTURE
Re: 14% SENIOR DISCOUNT DEBENTURES DUE 2010 OF CONCENTRA MANAGED CARE, INC.
The undersigned as the Holder of a beneficial interest in a
Regulation S Temporary Global Debenture 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 Debenture; or
[ ] its written order to Euroclear or CEDEL, as the case may be, to
exchange its beneficial interest in the Regulation S Temporary Global Debenture
for beneficial interest in a Regulation S Permanent Global Debenture.
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 Debenture is not a U.S. Person (as defined in
Section 305); or
[ ] the undersigned has purchased its interest in the Regulation S
Temporary Global Debenture 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 DEBENTURE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL DEBENTURE FOR REGULATION S PERMANENT GLOBAL
DEBENTURE
Re: 14% SENIOR DISCOUNT DEBENTURES DUE 2010 Of CONCENTRA MANAGED CARE, INC.
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 Debenture; or
[ ] the exchange of a Regulation S Temporary Global Debenture for a
Regulation S Permanent Global Debenture.
In connection with the above, the undersigned hereby certifies
that:
[ ] None of the holders of beneficial interests in the Regulation S
Temporary Global Debenture is a U.S. Person (as defined in Section 305); or
[ ] Each of the holders of beneficial interests in the Regulation S
Temporary Global Debenture 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 INTERCOMPANY NOTE]
US$___________ (Date)
______________, a corporation duly incorporated and existing under the
laws of ______ (the "Borrower") and a subsidiary of Concentra Managed Care, Inc.
(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 ______ and ______ in each year at [
]% 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 and United States Trust Company of New York, as Trustee,
dated as of _____________, 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: